G E R M A N L A W J O U R N A L R e v i e w o f D e v e l o p m e n t s i n G e r m a n , E u r o p e a n a n d I n t e r n a t i o n a l J u r i s p r u d e n c e Editors–in-­‐Chief: Russell Miller; Peer Zumbansen Editors: Gregor Bachmann; Nina Boeger; Gralf-­‐Peter Calliess; Matthias Casper; Morag Goodwin; Felix Hanschmann; Hans Michael Heinig; Florian Hoffmann; Karen Kaiser; Alexandra Kemmerer; Malcolm MacLaren; Stefan Magen; Ralf Michaels; Betsy Baker; Christoph Safferling; Frank Schorkopf; Craig Smith www.germanlawjournal.com © Copyright 2000 -­‐ 2012 by German Law Journal GbR. All rights reserved. -­‐170 Pages 1
01 January 2012 Vol. 13 No. 01 Table Of Contents Articles Christine Schwöbel The Appeal of the Project of Global Constitutionalism to Public International Lawyers Zoran Oklopcic The Territorial Challenge: From Constitutional Patriotism to Unencumbered Agonism in Bosnia and Herzegovina Christian Schliemann Procedural Rules for the Implementation of the TABLE OF CONTENTS PAGE I 1-­‐22 23-­‐50 51-­‐85 Table Of Contents OECD Guidelines for Multinational Enterprises -­‐ a Public International Law Perspective Symposium on Human Rights Special Issue Editor Tiffany Wong Book Reviews Tiffany Wong Introduction – The German Law Journal’s Human Rights Symposium (2012) Michael Da Silva Review Essay – Amartya Sen’s The Idea of Justice (2009) Heather Cohen Book Review – Eric A. Posner’s The Perils of Global Legalism (2009) Virgílio Afonso Da Silva Review Essay— Do Treaties Matter? Beth Simmons’ Mobilizing for Human Rights: International Law in Domestic Politics (2009) Angelina Ling Book Review – Charles R. Beitz’s The Idea of Human Rights (2009) TABLE OF CONTENTS PAGE II 52-­‐53 54-­‐66 67-­‐75 76-­‐86 87-­‐93 Table Of Contents Basil Ugochukwu Review Essay – Pablo de Greiff & Roger Duthie (eds.) Transitional Justice and Development: Making Connections (2009) 94-­‐104 Developments Felipe Temming Case Note – Judgment of the European Court of Justice (Grand Chamber) of 1 March 2010: ECJ finally paves the way for unisex premiums and benefits in insurance and related financial service contracts Astrid Janssen Copyright Licensing Revisited Agustín José Menéndez Review Essay – Capitalistic Constitutional Transformations? Danny Nicol’s The Constitutional Protection of Capitalism (2010) Katja Gelinsky Interview with Professor Dr. Christoph Möllers, Humboldt University, Berlin, Faculty of Law: On the Occasion of the 60th Anniversary of the German Federal Constitutional Court (“Bundesverfassungsgericht”) TABLE OF CONTENTS PAGE III 105-­‐123 124-­‐133 134-­‐164 165-­‐170 Articles The Appeal of the Project of Global Constitutionalism to Public International Lawyers By Christine Schwöbel*
A. Introduction Global constitutionalism, an idea neither necessarily rooted in nor emerging specifically from international law, has captured the imagination of public international lawyers. Rather than adding to the plethora of suggestions of what a global constitution would and should look like, this article is about why international lawyers are interested in this idea. The literature so far has largely omitted a stocktaking of what it is that is so appealing 1
about constitutionalism and who is particularly partial to it. When discussing global constitutionalism, international lawyers commonly assume one of two orientations: either a normative orientation (this is the type of constitutionalism we should have) or a descriptive orientation (this is the type of constitutionalism we already have). The former mostly concerns visions for “a global constitution” while the latter often concerns ideas of the process that will at some point culminate in “a global constitution;” this process is commonly referred to as “constitutionalization.” The recent co-­‐authored book by Jan Klabbers, Anne Peters and Geir Ulfstein, The Constitutionalization of International Law, sets out to go further. It aims to see “what a constitutional international legal order could 2
look like.” In a sense, they have therefore adopted a third orientation: one that takes the descriptive case of constitutionalism as a given and theorizes about further normative aspects in regard to the international legal order. *
I would like to thank Jason Beckett for his valuable comments on an earlier version of this work. My thanks also go to the participants of the European Standing Group on International Relations in Stockholm, where I presented the first draft of the paper in September 2010, and at which Stefan Oeter’s comments were particularly helpful. Finally I would like to thank the anonymous reviewer and the editors of the GLJ for their comments. Email: [email protected]. 1
Interestingly, the – to my mind – best analyses of the appeal of global constitutionalism have been in the context of the constitutionalization of specific areas of public international law, rather than of the field as a whole. See Jeffrey L. Dunoff, Constitutional Conceits: The WTO’s ‘Constitution’ and the Discipline of International Law, 17 EUROPEAN JOURNAL OF INTERNATIONAL LAW (EJIL) 647-­‐675 (2006); Daniel Bodansky, Is there an International Environmental Constitution?, (2009) 16 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 574-­‐584; DEBORAH CASS, THE CONSTITUTIONALIZATION FO THE WORLD TRADE ORGANIZATION (2005). 2
JAN KLABBERS, ANNE PETERS, GEIR ULFSTEIN, THE CONSTITUTIONALIZATION OF INTERNATIONAL LAW 4 (2009). 2 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
I would like to take a step back from the idea of “a constitution” as a product, or of “constitutionalization” as a process, and shift the view towards the international lawyer her (or him) self. What is the agenda of international lawyers when they speak of constitutionalization? Why is it that constitutionalism is such an appealing prospect for them? And how compulsive is the pull to constitutionalism? In the following, I begin with a brief overview of the contemporary debate on global constitutionalism. I then consider three motivations of international lawyers to engage with the debate and finally I take a closer look at the apparent “appeal.” In this context I examine whether the debate on global constitutionalism is merely appealing or whether there is something more compulsive to it. No specific vision for “a global constitution” will be suggested here. Indeed, it is the inherent limitation of devising or recognizing “a global constitution” which drive my theorizing about the appeal of global constitutionalism in the first place. While the inherent limitations and biases are not the focus of this article, it is worth noting where I stand in terms of the debate on global constitutionalism. What I am ultimately interested in is whether the contemporary and prevailing visions of global constitutionalism either act as a screen for the exclusion of the more vulnerable in the international legal sphere or whether such visions may even encourage the exclusion of the more vulnerable. When speaking of the vulnerable in the international legal sphere, I refer to any entity, from whole states to individuals, that may be disadvantaged through the economic, political and cultural domination of the few, hegemonic, powers in the international sphere. The concern about hegemony in international law is one that is familiar. The argument goes that some powerful states, particularly the United States (US), either disregard international law or use the international legal rhetoric for their own political 3
convenience. Yet, in my opinion this is not the end of the road for international law; at the same time as being marked by hegemonic power struggles, international law also possesses an emancipatory power. International law offers a space – a platform – for 4
considering justice, equal participation, and inclusion of the weaker members of society. International law incorporates the potential for solutions as well as problems. It is thus considered possible to reverse, if not escape, the bias inherent in concepts of international law. My view on global constitutionalism is very much in accordance with this line of argument. It appears that the current debate on global constitutionalism is tainted with biases and limitations, which, I believe, derive from investment in liberal-­‐democratic political practice as the seemingly only available political practice with universal appeal. Yet, these limitations can be addressed within the international legal debate. The language of constitutionalism enshrines a hegemonic potential but also an alternative aspect of 3
See for example, UNITED STATES HEGEMONY AND THE FOUNDATIONS OF INTERNATIONAL LAW (Michael Byers & Georg Nolte eds., 2003). 4
See Martti Koskenniemi, What is International Law For? in INTERNATIONAL LAW 52 (Malcolm D. Evans ed., 2010). 2012] Global Constitutionalism & Public International L awyers 3 making visible and giving voice to those who would not be heard if it were exclusively for power politics. In his book Strange Multiplicity, James Tully argues that the constitutional 5
language also accommodates anti-­‐imperial undertakings through its flexibility. The problem is that it is not this flexible aspect of the constitutional language that is adopted; it is rather the inflexible aspect that can cause stasis and manifestations of inequalities. A reconceptualization of constitutionalism towards a more flexible understanding is only possible if the contemporary debate is revealed as only being one option of many, and as the specific option that is associated with liberal-­‐democratic constitutionalism as is prevalent in the domestic legal systems of the international lawyers shaping the debate. In order to recognize global constitutionalism as having repressive as well as emancipatory properties, it must be recognized as a form of argument that is part and parcel of political 6
considerations. It is not a body of independent abstract and objective rules that are in a tug-­‐of-­‐war with politics. If, then, global constitutionalism is a form of argument, it is necessary to place the spotlight on the arguer. Only by directing our view to the arguer and his or her motivations can we find out what their argument really means. But, one might ask why take issue with these international legal theories and the theorists promoting them? Why not let the academics while in their ivory towers and deliberate about a universal framework for the world? Indeed, declaring the existence of “a global constitution” may strike one as being nothing but a harmless fantasy. Yet, contributors to the debate on global constitutionalism never believe that the idea itself is sufficient. For 7
them, the idea is inherently linked to a practicable project. Ideas on global constitutionalism therefore always also consider the implementation of the idea of global constitutionalism. It is this determination of international lawyers that makes it necessary to question their motivation. B. A Brief Overview over the Debate of Global Constitutionalism “Global constitutionalism” is by no means a term exclusive to public international law. Scholars of various subjects and various times have thought about it, including those of anthropology, history, international relations, philosophy, political theory, sociology, and theology. Indeed, much of the terminology employed by international lawyers is borrowed from other disciplines and extrapolated to international law. Global constitutionalism has 5
JAMES TULLY, STRANGE MULITIPLICITY: CONSTITUTIONALISM IN AN AGE OF DIVERSITY 31 (1995). 6
MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA (2005). 7
Anne Peters states global constitutionalism is “an agenda” in The Merits of Global Constitutionalism, 16 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 397 (2009). In terms of international lawyers and their projects, see David Kennedy, The Disciplines of International Law and Policy, 12 LEIDEN JOURNAL OF INTERNATIONAL LAW (LJIL) 9, 18 (1999). 4 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
recently emerged as one of the most discussed areas in the field. According to Klabbers, constitutionalization forms, alongside fragmentation and verticalization, “the holy trinity of st
8
international legal debate in the early 21 century.” So how do international lawyers relate to global constitutionalism? The contemporary debate is predominantly formed through two perspectives: suggestions as to which set of norms and principles such a constitution could and should be composed of and which process supposedly amounts to constitutionalization. As it is not the main purpose of this paper to contribute to this particular debate, the mapping of the various contributions will remain brief. It should also be said that it seems appropriate not to define global constitutionalism. In defining global constitutionalism, the opportunity would be lost to attempt to view the debate from the outside, from an observer’s viewpoint. The following contributions and contributors have therefore been selected because they invoke global constitutionalism, not because their proposals fit into a predefined set of requirements for “global constitutionalism.” Since it is comprised of a large number of multi-­‐faceted visions, global constitutionalism is a diverse and complex area. The contributions to the debate nonetheless share certain features, which allows for broad (and perhaps sweeping) categorizations. One way of ordering the debate is to understand current visions of global constitutionalism as falling into one of four dimensions. I call these dimensions: Social Constitutionalism, Institutional 9
Constitutionalism, Normative Constitutionalism, and Analogical Constitutionalism. Although it is not possible to capture the entire debate by way of this categorization, the four suggested dimensions are in my view representative of the predominant visions of global constitutionalism today. Proponents of Social Constitutionalism centre concerns for coexistence in international society. An example of this vision is that of a global constitutionalism of civil society. Gunter Teubner, for example, disassociates constitutionalism entirely from the nation state: In his view, the constitution of world society “emerges incrementally” through a process of the constitutionalization of 10
autonomous sub-­‐systems of this society. The emphasis of this vision is on participation of 11
individuals in society. 8
KLABBERS, PETERS, ULFSTEIN (supra note 2). 9
Christine E. J. Schwöbel, GLOBAL CONSTITUTIONALISM IN INTERNATIONAL LEGAL PERSPECTIVE (2011). 10
Gunther Teubner, Societal Constitutionalism: Alternatives to State-­‐Centred Constitutional Theory? in TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM 8 (Christian Joerges, Inger-­‐Johanne Sand & Gunther Teubner eds., 2004). Other proponents of a form of Social Constitutionalism include Christian Tomuschat, International Law: Ensuring the Survival of Mankind on the Eve of a New Century, GENERAL COURSE ON PUBLIC INTERNATIONAL LAW 281 RECUEIL DES COURS DE L’ACADÉMIE DE DROIT INTERNATIONAL 237(1999); Andreas Fischer-­‐Lescano, Die Emergenz der Globalverfassung (The Emergence of the Global Constitution), 63 ZEITSCHRIFT FÜR AUSLÄNDISCHES ÖFFENTLICHES RECHT UND VÖLKERRECHT (ZAÖRV) 717, 759 (2003); PHILIP ALLOTT, EUNOMIA: NEW ORDER FOR A NEW WORLD (1990). 11
Gunther Teubner, Globale Zivilverfassungen: Alternativen zur staatszentrierten Verfassungstheorie (Global Civil Constitutions: Alternatives to a State-­‐Centred Constitutional Theory), 63 ZAÖRV 3, 6 (2003). 2012] Global Constitutionalism & Public International L awyers 5 Institutional Constitutionalism looks to where power is situated in the international sphere and seeks to legitimize this power through its institutionalization. The most common vision of this dimension is that which describes the United Nations Charter as the global constitution. Bardo Fassbender is among the most assertive proponents of this view, as evidenced by the title of his article from 1998 “The United Nations Charter As Constitution 12
of the International Community.” The next group of authors of international law specify individual norms as global constitutional norms, which they believe provide the framework for a global constitutional order. Such visions are described here as Normative Constitutionalism. What makes these specific norms ‘constitutional’ is supposedly their inherent moral value. Authors group 13
these norms by referring to “world law,” “fundamental norms” or “jus cogens norms.” Finally, visions suggesting analogies between domestic or regional constitutionalism and the international sphere can be described as visions of Analogical Constitutionalism. Matthias Kumm, for example, examined to what extent international law can be awarded legitimacy from a constitutional perspective by making analogies between international law and European Union (EU) law. He suggests a constitutionalist framework for 14
international law that draws on ideas of EU law. It is worth mentioning here that the above categorizations cannot be separated neatly but necessarily overlap, as pertinently demonstrated with Analogical Constitutionalism. In a way, all contributors to the debate compare certain established constitutional ideas to occurrences in the international sphere and thus project concepts familiar to them from national law to international law. One can devise certain territorial “clusters” of this type of research. German international lawyers, for varied historical, educational, and 12
See Bardo Fassbender, The United Nations Charter As Constitution of the International Community, 36 COLUMBIA JOURNAL OF TRANSNATIONAL LAW 529, 546 (1998). Other authors of Institutional Constitutionalism include Anne Peters, Global Constitutionalism in a Nutshell in Liber amicorum Jost Delbrück, 548 WELTINNENRECHT (2005); Ronald St. John Macdonald, The International Community as a Legal Community in TOWARDS WORLD CONSTITUTIONALISM – ISSUES IN THE LEGAL ORDERING THE WORLD COMMUNITY 879 (Ronald St. John Macdonald & Douglas M. Johnston eds., 2005); Ernst-­‐Ulrich Petersmann, The WTO Constitution and Human Rights, 3 JOURNAL OF INTERNATIONAL ECONOMIC LAW 19, 20 (2000). 13
See for example Erika de Wet, The Emergence of International and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order, 19 LJIL 611-­‐632 (2006). Other authors that could be categorized here include ANGELIKA EMMERICH-­‐FRITSCHE, VOM VÖLKERRECHT ZUM WELTRECHT (FROM INTERNATIONAL LAW TO WORLD LAW) (2007); Michael Byers, ‘Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules, 66 NORDIC JOURNAL OF INTERNATIONAL LAW 220 (2007). 14
Matthias Kumm, The Legitimacy of International Law: A Constitutionalist Framework of Analysis 15 EJIL 907 (2004). Robert Uerpmann opts for the analogical approach by comparisons between international law and the German constitutional order in Internationales Verfassungsrecht (International Constitutional Law) 56 JURISTEN ZEITUNG 565-­‐572 (2001). 6 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
institutional reasons, are particularly taken with the idea of a global constitution. But not only German, or for that matter European, scholars are interested in taking part in the debate – international lawyers from across the globe (though predominantly from the “Western” world) have contributed to the field. Evidently there is something about global constitutionalism that makes it attractive to international law scholars. C. The Appeal of the Project of Global Constitutionalism In the following, three motivations have been selected as representing what it is about global constitutionalism that carries such a strong appeal to international lawyers. The three motivations are closely related and interdependent: the first motivation – the allocation of political power – carries within it a central attribute of regulation (the second motivation), which itself can only be enforceable if the legitimacy of international law (the third motivation) is ensured. The distinctions highlight facets of constitutionalism, which deserve to be mentioned separately. I. The Allocation of Power in the International Sphere The first motivation that may elucidate the appeal of global constitutionalism for international lawyers concerns the appeal of the restriction of political power in the international sphere. The allocation of power, which includes the aspect of “constituting” as well as the aspect of “restricting,” is an ongoing concern of international lawyers. One could say it is a lawyer’s “bread and butter” to allocate political power: we believe that we require lawyers to ensure, for example, that there is an objective standard under which decision-­‐makers exercise discretion. Lawyers test the discretion and then invoke the need for accountability for any actions that are an abuse of that discretion. The restriction of political power in the global sphere has become more urgent since the exercise of power (to be understood here as the political process of decision-­‐making) has become more difficult to trace and therewith more difficult to grasp. This elusive exercise of power has occurred through the ubiquitous processes of globalization. Globalization processes are understood as, inter alia, the increasing number of networks that transcend state borders, 15
whether economic, political, social, or legal; the increasing number of norms, institutions, 16
and procedures in the international sphere; the changing relations in the world post World War II which have reshaped from systems of coexistence to systems of 15
See e.g. DAVID HELD, DEMOCRACY AND THE GLOBAL ORDER: FROM THE MODERN STATE TO COSMOPOLITAN GOVERNANCE 267 (1995); ANNE-­‐MARIE SLAUGHTER, A NEW WORLD ORDER (2004). 16
Bernhard Zangl & Michael Zürn, Make Law Not War: Internationale und Transnationale Verrechtlichung als Baustein für Global Governance, in VERRECHTLICHUNG – BAUSTEIN FÜR GLOBAL GOVERNANCE? 12 (Bernhard Zangl & Michael Zürn eds., 2004). 2012] Global Constitutionalism & Public International L awyers 7 17
cooperation; and the shift of public decision-­‐making away from the nation State towards 18
international actors. International lawyers translate the factual evolution of globalization into legal terminology: it is often claimed that a shift has occurred from a sovereignty-­‐
19
centered system towards a value-­‐oriented or individual-­‐oriented system. A further narrative is that a shift has occurred from international law as a quasi-­‐contractual system, in which sovereignty (in its external dimension) was the paradigm, to “a true legal order of 20
a supra-­‐State kind.” Concurrent with the debate on the coherence of the international legal order (allegedly occurring through globalization processes), a debate is ongoing within the profession regarding the fragmentation of this very order (allegedly also occurring through globalization processes). It is widely argued that the field of international law has become 21
fragmented into a collection of specialized and independent areas of law. Due to the diverging principles of law, definitions of norms, and institutional procedures, it is 22
maintained that there is no longer a coherent and overarching international law. In 2002, the International Law Commission found that fragmentation has resulted in conflicts between rules or rule-­‐systems, deviating institutional practices and, possibly, the loss of an 23
overall perspective on the law. In the early days of the debate, much of the engagement with fragmentation came particularly from institutions such as the International Court of Justice – institutions that may have been concerned about the weakening of their 24
influence. It appears that global constitutional parlance appeals to those international lawyers who wish to emphasize that a common framework (in the form of overarching, universal concepts) is required and that they have ownership over this framework in its entirety. Such ownership – whether it be over the specialized terminology used, at the exclusion of non-­‐experts, or the expertise for setting up institutional frameworks in general – would 17
PETERS, supra note 12, at 536. 18
DE WET, supra note 13, at 612. 19
TOMUSCHAT, supra note 10. 20
Luigi Ferrajoli, Beyond Sovereignty and Citizenship: A Global Constitutionalism, in CONSTITUTIONALISM, DEMOCRACY AND SOVEREIGNTY: AMERICAN AND EUROPEAN PERSPECTIVES 154 (Richard Bellamy ed.,1997). 21
SLAUGHTER, supra note 15. 22
David Kennedy refers to a “porous boundary” in The Forgotten Politics of International Governance, 6 EUROPEAN HUMAN RIGHTS LAW REVIEW 117, 120 (2001). 23
24
th
Report of the Study Group of the ILC, 58 session (2006) A/CN.4/L.682 [8]. Martti Koskenniemi & Päivi Leino, Fragmentation of International Law? Postmodern Anxieties, 15 LJIL 553-­‐579 (2002). 8 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
relay onto international lawyers an exclusive control. It seems then that the need for controlling fragmentation is prompted by a fear that such dispersing and elusive processes will make it more difficult or even impossible for lawyers to limit and control political power. Anne-­‐Charlotte Martineau contextualized and historicized the fear regarding fragmentation, highlighting that such specialized mechanisms will at certain times be seen 25
as healthy pluralism and at other times as perilous division. Fear of fragmentation dominates the field in times of anxiety while the view of healthy pluralism dominates it in 26
times of confidence. General public international lawyers are the lawyers who are anxious – it is they who lose influence to specialists in a fragmented world. In particular those international lawyers who have committed themselves to a liberal or neo-­‐liberal outlook on the field and have thus limited themselves to discussing universality from a Euro-­‐ or US-­‐centric perspective have reason to be anxious. The multiple sources of power, some national, some international, some transnational, have inspired discussions, predominantly by scholars of international relations, on global 27
governance and the “disaggregated State.” International lawyers in turn are somewhat skeptical of global governance and decentralized power. They prefer to see power centralized, although of course predominantly not in the form of an international federal system. If international lawyers consider global governance, then it is usually in terms of framing it within well-­‐known centralized structures of accountability and more generally 28
public law. With variations as to the extent of their efforts, international lawyers in international institutions have attempted to centralize their areas of expertise within their respective institutions. It appears that this is undertaken not only to channel expertise but also to argue for the ascendancy of their institution as the (single) institution with universal appeal. Their efforts are competing with the efforts of other international lawyers and so, somewhat paradoxically, they are adding to the decentralization. Constitutionalism does not only serve the function of constraining power, it also “constitutes” power according to the will of those who craft the constitution in the first 29
place. This is stating the obvious, but it is a point that is sometimes swept under the carpet: when establishing an international organization, for example, power of the member states is not only restricted, it is also constituted within the organization. Examples of localization as a reaction to globalization can be found in various institutions: 25
Anne-­‐Charlotte Martineau, The Rhetoric of Fragmentation: Fear and Faith in International Law, 22 LJIL 2 (2009). 26
Id. at 3. 27
SLAUGHTER, supra note 15, first introduced the term of the “disaggregated state.” 28
For an analysis of the public nature of global governance, see Armin von Bogdandy, Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities, 9 GERMAN LAW JOURNAL 1375 (2009). 29
BODANSKY, supra note 1. 2012] Global Constitutionalism & Public International L awyers 9 the United Nations has, in its Charter, attempted to centralize legal matters regarding the use of force; the World Trade Organization has attempted to centralize issues regarding international trade; the International Criminal Court’s project is to centralize international 30
criminal law matters; and the International Labour Organization is, albeit with a commitment to localization, attempting to centralize labor standards. These international-­‐
norm-­‐hubs are also power hubs. The restriction of political power through law is not merely a responsive tool. International institution will also be granted with law-­‐making powers that extend to its member States and sometimes beyond. Once the power has been allocated through law, the exercise of that power is largely within the discretion of that specific institution. A prime example is the UN Security Council; this UN organ has declared itself as having legislative powers (see the resolutions regarding the funding of terrorism), executive powers (take for example the power to impose and oversee the implementation of sanctions), and institution-­‐building powers (see the criminal tribunals of Rwanda and the former Yugoslavia). It is in fact unclear where the powers of the Security Council end, prompting concerns of parochialism. Klabbers observes, with the caveat that it is a heuristic device, that this is part of a chain of action and reaction, move and counter-­‐
move: “globalization calls forth localization, which then at the same time, by looking like parochialism, may inspire yet other manifestations of the global through de-­‐localization.” Again, the UN Security Council is an excellent example; it has centralized so much power that it is unclear what would happen if it were to act ultra vires, indeed, whether there is a 31
space for an ultra vires at all. This has itself prompted demands for Security Council reform in order to globalize what has been localized. The limitation of power that constitutionalism promises does of course not end with international organizations. Constitutionalism promises a framework that would encircle all actors of international law. The notion of global constitutionalism, particularly of the liberal legalist type, thus provides international lawyers with a tool for allocating power and tracing accountability hierarchies within a framework that may otherwise seem chaotic at best or the fruits of hegemonic power struggles at worst. The use of globalization terminology – notably within their specialized language of “accountability” and “legitimacy” – therefore appears to be an attempt by international lawyers to reclaim some of the debate that they may have lost hold of in the globalizing and yet localizing world. In other words, discussions of global constitutionalism by public international lawyers could therefore be understood as attempts at denial or regulation of fragmentation and as a part of a bid to regain relevance. Global constitutionalism, no matter how loose, would necessarily acknowledge a certain set of universal ideas, whether rights, principles, or an international legal language in general. The recognition (or rather introduction) of such universal law would indeed settle the debate on the fragmentation of international law – at the very least in 30
It appears that this is by means of, not despite, complementarity. 31
JAN KLABBERS, AN INTRODUCTION TO INTERNATIONAL INSTITUTIONAL LAW 168 (2009). 10 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
regard to a loss of an overall perspective on the law. This in turn would allow international lawyers to believe that they exercise control over political processes. However, such concern for the allocation of political power, in particular for the restriction of power through a constitution, appears one-­‐dimensional. Lawyers with this concern assume a strict division of politics and law – an assumption prevalent in the liberal-­‐
democratic model of constitutionalism. Constitutional law according to this model is believed to pre-­‐date politics and is therefore largely left unquestioned. What is omitted in this view are the complex power structures that enable law making and constitution-­‐
making in the first place. The idea of law as the objective frame that can keep the subjective political process in check will be explored further in the following motivation. II. The Regulation of International Society through Law Closely related to the lawyers’ desire for the limitation of political power is the desire for the regulation of society through law. If the preceding motivation was about the reason for invoking global constitutionalism in the first place (the restriction of political power), this motivation is about the appropriate means to achieve it (law as a tool). Lawyers like to think of law having objective standard-­‐setting properties, which stand in contrast to the political claim that “might is right.” Indeed, as referred to above, this is in a sense the primary function of a lawyer: it is their “bread and butter.” Participants in the debate on global constitutionalism believe that a global constitution would provide an appropriate framework that regulates social life in the international (as well as the national) sphere. This perception of constitutionalism reflects a perception of a wide-­‐ranging, if not all-­‐
encompassing, potency of the law. International lawyers tend to respond to international events with a demand for the greater or better application of law. Any changes in global social reality are believed to call for new or enhanced regulation. In that sense, many international lawyers tend to display 32
an anxiety about the lack of law. One often encounters the argument that there is a dichotomy between law on the one hand and politics on the other, with politics obstructing the way to a true legal system. Issues making the headlines such as the plight of the detainees in the detention camps at Guantanamo Bay have given rise to demands predicated on the strong belief that more law would be transformative of current (political) standards. For example, Lord Steyn of the UK House of Lords demanded more 33
law by famously referring to Guantanamo Bay as a “legal black hole.” Lord Steyn argued that injustices had been perpetrated on individuals in the name of politics and security who then have no effective recourse to law. 32
MARKS, supra note 32. 33
Johan Steyn, Guantanamo Bay: The legal black hole, 27 F. A. Mann Lecture (25 November 2003). th
2012] Global Constitutionalism & Public International L awyers 11 Such communicative and emancipatory power of law holds true, but what is left out of the picture is the exclusionary and exclusive power of law. The potential of law to both empower as well as disempower has been greatly discussed in human rights law. Human rights law, or rather the lack of human rights law and the lack of its enforcement, has, predominantly since the 1990s, been at the centre of much of the debate on the potency of law to regulate social reality. Human rights law in its traditional sense – as a negative obligation on the State power to refrain from doing something to the detriment of individuals’ rights – is believed to be the chief tool with which arbitrary power can be made accountable. In this context, Ralph Wilde has argued that law, particularly human rights law, is 34
associated with a general redemptivist idea. The need to redeem the exercise of supposedly arbitrary power prompts demand for more law. Not only is law seen as the appropriate medium with which to constrain arbitrary power and to thereby promote democracy, it is also seen as the appropriate medium for promoting peace throughout the 35
world. International lawyers speaking of global constitutionalism have also adopted this empowering facet of the law. In other words, the use of global constitutional language provides international lawyers with a legal tool that they regard as a tool for regulating a better global social reality. However, such overemphasis on the empowering properties of law can then of course veil the disempowering properties of law. It appears that all contemporary crises are met with a call for more law, as the mechanism by which to overcome the respective crisis. The worldwide financial crisis also reignited the “law as redemption” debate, if using a less explosive terminology than that employed for human rights. The most commonly employed description of what happened in the global financial meltdown is that market forces spiraled out of control due to a lack of regulation. Howard Davies, Director of the London School of Economics and Political Science, writes, “One widely accepted conclusion emerging from analyses of the financial crisis that began in 2007 is that international networks of regulators have not kept pace with the increasing 36
globalization of financial markets.” Davies’ response to this in the “Practitioners Special Section” of Global Policy is that “the problem” is the absence of a hierarchy between the various regulatory bodies and the absence of a “central body with the authority to require any of the other organisms to act, 34
Ralph Wilde, Casting Light on the “legal black hole”: Some Political Issues at Stake, 5 EUROPEAN HUMAN RIGHTS LAW REVIEW 552, 554 (2006). 35
Jürgen Habermas & Ciaran Cronin (tr.), Does the Constitutionalization of International Law Still Have a Chance? in JÜRGEN HABERMAS, THE DIVIDED WEST 116 (2006); see also Special Issue: The Kantian Project of International Law, 10 GERMAN LAW JOURNAL 1-­‐116 (2009). 36
Howard Davies, Global Financial Regulation after the Credit Crisis, 1 GLOBAL POLICY 195 (2010). 12 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
37
on any particular time frame.” Lawyers join the economists in the rhetoric of disapproval that – in Davies’ words – “no one is in charge of anyone else” by explaining (self-­‐
importantly?) that increased regulation would restrict this powerful yet elusive “market force” from causing more havoc in the future. Law can fix any blips in society’s usually ordered progress towards perfection. One could of course retort that lawyers after all possess the necessary expertise for employing law as a tool for social change, and that therefore, there is nothing wrong with lawyers (as experts) employing this tool. Reflecting on the politics of expertise that may be implicated if international lawyers invoke authority (as they did when pronouncing the Iraq war illegal,) the authors of the article “We are Teachers of International Law” consider two aspects: On the one hand, the expertise lies in the legal training, experience and label of “lawyer;” on the other hand, law can be such a powerful means of impacting social reality that it cannot be left exclusively to certain individuals (even if they bear the label “lawyer”) to claim knowledge of what “justice,” or 38
other similarly influential terms, is and means. Lawyers have an undeniably strong interest in maintaining the associations of expertise that the label “lawyer” invokes. In many legal systems around the world – particularly those legal systems that are home to scholars of global constitutionalism – a constitution is the mechanism that encapsulates the 39
entire legal system, it is, as Teubner states “the law of laws.” However, as discussed above, other forces also appear to have the capacity to regulate 40
society on the international sphere; for example, market forces. David Kennedy observes that international lawyers are aware of the danger of losing control over impacting on social reality when he states: “A great deal of the urgency in the progressive case for building international institutions has always come from the fear that the international regulatory 41
project would fall behind the natural advances of the international market.” Along with market forces, there is an increase in private law issues on the field that we know as public international law. One need only think of private military companies that derive their obligations from their contracts, or the provisions for the reparations of victims in the Rome Statute, or investment arrangements in bilateral investment treaties. For international lawyers, the dividing line between the public and the private is extremely 37
Id. 38
Matthew Craven, Susan Marks, Gerry Simpson & Ralph Wilde, We are Teachers of International Law, 17 LJIL 363, 370 (2004). 39
Gunter Teubner, A Constitutional Moment? The Logics of ‘Hitting the Bottom,’ in THE FINANCIAL CRISIS IN CONSTITUTIONAL PERSPECTIVE: THE DARK SIDE OF FUNCTIONAL DIFFERENTIATION 32 (Poul Kjaer, Gunther Teubner & Alberto Febbrajo eds., 2011). 40
This should of course not tempt us into viewing market forces as entirely distinct from law. The enabling power of law applies here too. 41
KENNEDY, supra note 7, at 53. 2012] Global Constitutionalism & Public International L awyers 13 significant: public law enables lawyers to predict outcomes; it means the universalization of certain standards, and it means control. Private law on the other hand, provides legal subjects (note nevertheless, the terminology of subject) a largely impenetrable legal bubble in which they are accorded with contractual freedom. Certainly, this freedom is restricted by public law, for example as regards the legal age of the legal subjects. But, the plethora of contracts means that there is a large body of law that is intangible and obscured or even invisible. A constitutionalized international law would reintroduce the “publicness” of public international law in a way that it would act as a framework for this currently obscured or invisible sphere of legal relationships. The framework would provide a mechanism of making these legal relationships more controllable. It is after all control and order that provide the comforting duvet (or is it a security blanket?) for lawyers. Constitutionalism, the quintessence of the “public,” would thus undoubtedly confirm the power of law to regulate international society. III. The Legitimation of International Law Legitimacy, particularly in regard to the discipline at large, is an issue frequently addressed by international lawyers. It is, according to this analysis, the third main motivation for international lawyers to speak of their field as “constitutionalizing.” Wouter Werner states that the debate on a global constitutional order implicates a normative project in that advocates of a global constitutional order are at the same time trying to bring such an 42
order about. What is happening is a self-­‐allocation of power to international lawyers which at the same time rather usefully settles the debate about the legitimacy of international law itself: the very term “constitution” carries with it a promise of 43
legitimacy. The legitimacy of international law is often questioned in the context of a familiar debate on whether “international law is really law?” For the most part, this discussion is couched within the context of the lack of enforcement mechanisms on the international sphere. A lack of enforcement means a lack of legitimacy in that there may be 44
no need to comply with international law. Some authors state that an effective enforcement mechanism is thus central to any legal system and that the absence of such an enforcement mechanism on the international sphere at the same time means the absence of law. Other authors believe that all actions by States are determined by (military and economic) self-­‐interest of States. Thus, there is no effective international law where 45
the self-­‐interest of States does not accord with it. Taken to the extreme, the exclusion of 42
Wouter Werner, The never-­‐ending closure: constitutionalism and international law, in TRANSNATIONAL CONSTITUTIONALISM 348 (Nicholas Tsagourias ed., 2007). 43
Jan Klabbers, Constitutionalism Lite, 1 INTERNATIONAL ORGANIZATIONS LAW REVIEW 31, 47 (2004). 44
In terms of the moral duty of citizens to obey international law, see KUMM, supra note 14, at 908. 45
See e.g. JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW (2005). 14 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
an international interest means that international affairs are but an assemblage of self-­‐
interests (an international anarchy), barring the possibility of a separate international legal order. Many advocates of a global constitutional order promote the other extreme by asserting that a loose international order of coordination has given way to a comprehensive international order of cooperation. They therefore not only submit that an international legal order exists, but go a (normative) step further by claiming that the international legal order is a constitutional order. The question of whether international law is really law is one that has dogged the field 46
since the first treaties were signed, and has indeed long been claimed to be defeated. It therefore merits asking: why the recent interest in constitutionalism as a mechanism to settle the debate on legitimacy once and for all? It appears that the new legitimacy crisis of international law is, again, connected to globalization processes: globalization has to a certain extent displaced state consent as the source of legitimacy since it has brought with 47
it a large number of non-­‐consensual norms thus precipitating a vacancy for legitimacy. It is an assumption underlying all ideas of constitutionalism that, just as there is no society without law so too there is no law without society (ubi societas, ibi jus). Constitutionalism is the legal framework that pertains to the coexistence of humans on a given territory; in other words, it is the legal framework of a society, a legal community. Correspondingly, global constitutionalism is the legal framework of international society. With this in mind, the first point to be made is that global constitutionalism puts an end to questions about whether an international legal order exists. For it is impossible to contemplate the topic of global constitutionalism without recognizing its basis in an international legal society. This seems all the more apparent when one calls attention to the root of the word constitutionalism as being “constitute.” A constitution “constitutes” a legal society. The constitutionalist language evokes ideas of a normative framework that is ordered and good: it is a framework that has the potential to largely remain unquestioned, not simply by international lawyers, but by entire societies. Werner states that the rise of global constitutional debates can “partly be understood as 48
an attempt to make sense of some (recent) developments in international law.” I believe the project of these international lawyers is directed towards something more than a desire to rationalize and order. As stated above, it seems that the goal is to regain some of the influence that international lawyers may have lost in the thickets of globalization processes – or may never have had due to the supposedly unresolved question of the legitimacy of the field itself. The above three motivations all share the common theme that 46
Thomas Franck claimed in 1995 that “international law has entered its post-­‐ontological era” in THOMAS FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS 6 (1995). 47
BODANSKY, supra note 1, at 583. 48
WERNER, supra note 42, at 331. 2012] Global Constitutionalism & Public International L awyers 15 international lawyers are seeking a means of expressing their concerns of their own (possibly dwindling or alternatively never existing) influence. International lawyers hope to express and rationalize and perhaps control globalization processes on their field. The proliferation of international and transnational forces (globalization processes) has partly displaced and at any rate decentered international law discourses. International lawyers are observing the factual changes on the international sphere such as the increase in interconnectedness and the international market and wish to address these with legal structures that uphold their own relevance. Global constitutionalism offers the perfect solution: it is flexible enough to take politics and economics into account, and at the same time provides ground for a strong normative framework. The appeal of a strong regulating framework that at the same time is realistic enough to take other (non-­‐normative) forces into account is overwhelming. D. Appeal, Survival or Addiction? So what of this “appeal?” Is it merely a matter of wishful thinking or is it something more compulsive? As stated above, at the centre of the debate on the tenacity of global constitutionalism are its possible regulating and legitimizing properties, which at the same time secure the relevance of international lawyers. It is no secret that international lawyers 49
– indeed lawyers at large – like to think of legal systems as unified and coherent. Mimicking the sovereign power that international lawyers are familiar with from their respective domestic legal settings (see Analogical Constitutionalism), the UN as an organization is rationalized to encompass a hierarchical structure with a centralized power system. As David Kennedy observes, this is a paradoxical enterprise, since what is happening is a struggle to somehow “reinvent at an international level the sovereign 50
authority it was determined to transcend” in the first place. Interestingly, Kennedy 51
describes this enterprise as an “obsession.” Maybe, what we are in fact dealing with is not only an “appeal,” but something more irresistible. Conditioned by their legal training, lawyers are compelled to attempt to find a “principle” in the chaos, a “structure” in the confusion and a “definition” in the varied interpretations and determinations. Legal training, albeit to a larger extent in the civil law system, revolves 49
This appears to be evidenced in the recent rediscovery of systems theory, even as a form of articulating pluralism, particularly pronounced by Gunther Teubner; see TEUBNER, supra note 39; Gunther Teubner, Self-­‐
Constitutionalizing TNCs? On the Linkage of “Private” and “Public” Corporate Codes of Conduct, 18 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 17-­‐38 (2011); Gunther Teubner, Constitutionalizing Polycontexturality, 19 SOCIAL AND LEGAL STUDIES 17-­‐38 (2009). 50
David Kennedy, The International Style in Postwar Law and Policy, 7 UTAH LAW REVIEW 7, 14 (1994). 51
Id. 16 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
around learning a structure and definitions in abstract and then applying these abstract legal rules to cases. In the domestic legal setting, these structures and definitions are extremely useful for reasons of legal certainty and social stability. It is seen as a necessary evil that there will be exceptional individual cases (so-­‐called “hard cases”) in which the 52
application of the structure and definition will lead to injustices; and indeed the system normally provides enough flexibility for adapting the structure if the individual cases become the norm. Overall, coherence is the order of the day. In international law, a greater extent of caution is required when it comes to such abstractions. It is certainly true that the international sphere does not have the same level of coherence as a domestic legal system. Coherence here can be viewed in a formal or a substantive way. Ulrich Haltern, a critic of global constitutionalism, rejects analogies between the international and the domestic on the basis that he believes that international law lacks the “symbolic-­‐esthetical dimension” inherent in national 53
constitutional law. The great diversity of environments, ethnicities, customs, and value systems in the world does not allow for the extrapolation of the symbolism of constitutionalism from the domestic sphere. While constitutions do not necessarily incorporate a great extent of power or detail in themselves, indeed are at times fairly brief documents (the German Constitution) or are comprised of no particular document (English constitutionalism), their idea nevertheless portrays ordered power structures. The emphasis on the symbolism of the constitution, represented here through Haltern’s work, can be referred to as formal coherence. Jason Beckett, in contrast, applies the invocation of coherence to a possible politics of domination; he warns: “Because coherence is an unattainable goal, the search for “coherence” becomes the willful disregard of a reality of conflict, the hegemonic imposition of a particular project which has, always already, 54
subsumed and regulated its “others.“ Beckett’s concern about coherence is thus substantive: How might it be invoked? As a proxy for domination? Notably, the invocation of pluralism as opposed to coherence may not be the answer to breaking such patterns of domination. It appears that when international lawyers do invoke “pluralism” in contrast to coherence, then it is a pluralism that is restricted to the familiar liberal-­‐democratic trajectories. A pluralism of liberalism, so to speak. International lawyers are uncomfortable with embracing “true” legal pluralism. For them, international law with its plurality and diversity is a challenge, in the form of an uncut diamond that requires some legal attention until it will shine in all its clarity. Certainly, the sparkling diamond of international law is something of which many 52
KOSKENNIEMI, supra note 6, at 595. 53
Ulrich Haltern, Internationales Verfassungsrecht?, 128 ARCHIV DES ÖFFENTLICHEN RECHTS 511-­‐556 (2003). 54
Jason Beckett, Fragmentation, openness, and hegemony: adjudication and the WTO, in INTERNATIONAL ECONOMIC LAW AND NATIONAL AUTONOMY 44 (Meredith Kolsky Lewis, Susy Frankel ed., 2010). 2012] Global Constitutionalism & Public International L awyers 17 international lawyers will already have a mental image or a fantasy. Constitutionalism enables international lawyers to bring about that image. Taking the above considerations about non-­‐regulatory forces on the international sphere into account, one could however consider whether the debate on global constitutionalism is more than a desire or a fantasy; whether it is in fact a survival mechanism. In the face of the fragmentation of international law into specialized legal systems, could international lawyers be fighting for the survival of their profession? If this is the case, and if international law is indeed in the midst of a legitimacy crisis, should one regard the model of a global constitution, which provides a normative framework for all of international society, as the saving grace for the profession? In that event, international lawyers could hardly be blamed for the urgency with which global constitutionalism is presented, indeed with the infatuation which is becoming more and more evident. This survival argument in regard to the international legal discipline is however only persuasive if one assumes that every legal system requires a determinate set of rules – or perhaps values – in order to be observed. The survival argument presupposes that individuals can voice preferences in terms of who can make legal decisions, and that once this preference has been ascertained the political body can act upon them and other issues arising from them. But, as Martti Koskenniemi explained in From Apology to Utopia, this 55
view is a premise of liberalism. Thus, international law would only be in a legitimacy crisis if it were exclusively predicated on the political model or tradition of liberal-­‐democracy. It would certainly go beyond the scope of this article to state what the premises of international law are and whether they lie in a particular political tradition, suffice it to say that international law could also derive its legitimacy (assuming it requires this) from other sources, other democratic models for example. Even if the liberal legalist tradition is the predominant tradition, it cannot be assumed to be universal. The discourse on global constitutionalism is therefore not one of survival for the discipline. But what about the survival of those international lawyers partaking in the discourse? Could it be that they are in desperate need of mechanisms to ensure their survival? 56
Beckett fittingly writes about international lawyers “craving” constitutionalization. A craving is stronger than a mere appeal since it carries with it a sense of compulsion, but it also acknowledges that whatever one is craving is dispensable, and could ultimately even lead to self-­‐destruction. Lawyers are accustomed to structures and definitions from their domestic legal systems and therefore long for them when dealing with international law (withdrawal). It is difficult to defy the pull of order, which offers itself as a relief to the chaos. The compulsive side of a craving is often due to an addiction. An international 55
56
KOSKENNIEMI, supra note 6, at 75. Jason Beckett, The Politics of International Law – Twenty Years Later: A Reply, EJIL: Debate, available at: http://www.ejiltalk.org/author/jason-­‐beckett/ (last accessed 23 December 2011). 18 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
lawyer’s addiction for a constitutionalism which promises order, as any other addiction, comes with a health warning: the more the craving is fed, the stronger the desire and the greater the dependency. The stronger the desire, the more arduous it becomes to question one’s behavior and any possible significant problems inherent in that which gives relief. Liberal constitutionalism is a very potent drug with highly addictive properties. It can offer a momentary relief on the contradictions and diversity evident in the global arena by promising hierarchies, order and control. Teubner recently wrote about collective addiction; but not to constitutionalism, rather to 57
growth, particularly as regards the economy. Interestingly, constitutionalism is for him the antidote, not the addiction. Teubner approaches the phenomenon of collective addiction by employing methodologies borrowed from systems theory. In his view, ‘[i]t is possible that social processes as such might exhibit the properties of addictive behaviour 58
quite independently of the dependence syndromes of individual human beings’.” Since the present article focuses in particular on individuals (specific international lawyers) as part of a collective (professionals belonging to the discipline of international law), I would disagree with collective addiction being a phenomenon independent of the individuals making up this collective. However, there is much to be said about collective addiction as a social phenomenon. And the compulsions for growth appear to be a very real instance of addictive behavior, whether engaged in by a collective actor (as Teubner would say) or by individuals. However, rather than constitutionalism being a “‘new orientation”’ that will lead away from the compulsions for growth, what might rather be at hand is the danger real threat of trading one addiction for another. Addiction transfer is a real threat. Teubner envisages that the collective addiction for growth would come to a moment of “‘hitting the bottom’,” a moment of near-­‐catastrophe, which would at the same time be the 59
constitutional moment – the moment of the transformation of the “‘inner constitution’.” What he does not take into account is that the collective addiction for growth can only be overcome by addiction to another drug; indeed, that he is to a certain extent promoting addiction transfer. Who then are the international lawyers who fall prey to its addictive properties? Are they “users” or “abusers” of the drug? As noted above, the debate on global constitutionalism has gained wider appeal in the past years, but has its epicenter in Germany or at least with German-­‐speaking scholars. While international lawyers around the world have been inspired by constitutionalism on a global scale, the debate in Germany has become particularly extensive and detailed. With the ontological questions and doubts largely defeated, scholars such as Andreas Fischer-­‐Lescano, Anne Peters, Angelika Emmerich-­‐
57
TEUBNER, supra note 39, 9-­‐51. 58
Id. at 9. 59
Id. at 15, 16. 2012] Global Constitutionalism & Public International L awyers 19 Fritsche, Armin von Bogdandy, Bardo Fassbender, Gunter Teubner, Mattias Kumm, Nico 60
Krisch and many more discuss which principles and rights have gained constitutional status in great detail. Although Stefan Kadelbach and Thomas Kleinlein are of course correct in stating that with only a lawyer’s tools it is difficult to determine whether the 61
debate on global constitutionalism is a predominantly German debate, it also rings true that there are certain favorable historical, educational and institutional conditions for the appeal to German international lawyers in particular. It can be argued that Germany’s recent history of the Third Reich, combined with a possible collective feeling of guilt, has proved to be fertile ground for viewing its own post-­‐
62
1945 constitution as an instrument with healing properties. Further, it has been stated 63
that this has left Germans with conflicting feelings in regard to their national heritage. Such could be the reason why German lawyers and politicians arguably prefer to invoke the interests of the global legal community, as the advocate of universal legal principles, 64
rather than their own national interests. Aside from the historical reasons, there are also reasons entrenched in the German legal educational system, which further a link between international and constitutional law. Traditionally, professors of international law in Germany will also hold a chair for constitutional law and will be expected to teach and publish in both areas of law. A cross-­‐fertilization of the two disciplines is therefore very likely. These professors will introduce ideas grounded in such cross-­‐fertilization into their teachings and supervisions, which continues the cycle for the next generation of scholars. Such cross-­‐fertilization has been institutionalized through the establishment of research centers and the election of international law scholars to judges, particularly at the Federal 65
Constitutional Court (Bundesverfassungsgerich). 60
A brief look at the Council of the German Society of International Law (Deutsche Gesellschaft für Internationales Recht) shows a large number of names taking part in the debate on global constitutionalism, available at: http://www.dgfir.de/society/structure/ (last accessed 23 December 2011). 61
Stefan Kadelbach & Thomas Kleinlein, International Law – a Constitution for Mankind? An Attempt at a Re-­‐
appraisal with an Analysis of Constitutional Principles, 50 GERMAN YEARBOOK OF INTERNATIONAL LAW 304 (2007); 62
The issue of collective guilt and Vergangenheitsbewältigung is much debated in German literature; see, most recently, BERNHARD SCHLINK, GUILT ABOUT THE PAST (2010). 63
Juliane Kokott, Report on Germany in THE EUROPEAN COURT AND NATIONAL COURTS – DOCTRINE AND JURISPRUDENCE: LEGAL CHANGE IN ITS SOCIAL CONTEXT 77, 126 (Anne-­‐Marie Slaughter et al. (eds.), 1998). 64
Armin von Bogdandy, Constitutionalism in International Law: Comment on a Proposal from Germany, 47 HARVARD INTERNATIONAL LAW JOURNAL 223-­‐242 (2006). 65
Andreas L. Paulus, for example, was elected as Judge in the Bundesverfassungsgericht in 2010. His work on constitutionalism includes ANDREAS L. PAULUS, DIE INTERNATIONALE GEMEINSCHAFT IM VÖLKERRECHT (THE INTERNATIONAL COMMUNITY IN INTERNATIONAL LAW) (2001); Andreas L. Paulus, The International Legal System as a Constitution, in RULING THE WORLD? CONSTITUTIONALISM, INTERNATIONAL LAW, AND GLOBAL GOVERNANCE 69-­‐109 (Jeffrey L. Dunoff & Joel P. Trachtman eds., 2009). 20 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
These scholars have shaped the debate to date in a way that mimics the constitutional precepts, at the very least the constitutional culture, predominant in Germany. Although the ideas of these eminent scholars are diverse, multifarious, and at some times contradictory, the contemporary understanding of global constitutionalism is largely focused on five key themes of constitutionalism: the limitation of power, the institutionalization of power, social idealism, standardization, and the protection of 66
individual rights. The compulsion to mimic German constitutionalism has led to an exclusion of other, perhaps more flexible, ideas of constitutionalism. To date, there are very few contributions to the debate by scholars from the global south or the group of scholars now associated with the acronym TWAIL. There are a few engagements with constitutionalism by scholars from critical legal studies, but it is fair to say that those scholars who have a commitment to a liberal tradition have primarily led the debate. And within that tradition there has been a constant dosage of constitutionalism understood as a coherent international legal system, which requires common principles, rights and morals. Rather than being “abusers” of the drug, these scholars maintain a constant, careful dosage. They are users, not abusers. For an overdose, say an institutionalized federal constitutional system, is very much frowned upon. The problem with this constant high is that it causes reality to be distorted. The hegemonic potential of the liberal constitutionalism rhetoric is out of sight for the sedated. What is the antidote then to this addiction? I suggest it lies in the embrace of indeterminacy on the one hand and the taking seriously of private law conceptions and methodologies on the other. Applied to this issue, embracing indeterminacy means embracing global constitutionalism as an ongoing process. Although this may seem less comforting than a set of rules enshrined in a given hierarchy, there may nevertheless be the possibility of taking comfort in ones own discomfort. Importantly, the discomfort does not point towards a structural deficiency of international law, it is merely an indicator of the appeal for order. In the Epilogue to the reissue of From Apology to Utopia, Martti Koskenniemi aims to save indeterminacy from disrepute by stating that indeterminacy is neither a scandal nor about deficiency, it is indeed “an absolutely central aspect of 67
international law’s acceptability.” He explains that it is necessary to recognize indeterminacy as a mechanism for accommodating not only for the different, and often conflicting, purposes of legal rules but also to accommodate for change. Rules must stand the test of time and for this, they must be indeterminate – at least to a certain extent. Thus, although it may be possible to order the international legal sphere in hierarchies and to design a global constitution, this is only one possible interpretation. As soon as one attempts to define the indeterminate, one inevitably excludes all other potential 66
For a closer analysis of these five key themes, see SCHWÖBEL, supra note 9, particularly Chapter 2. 67
KOSKENNIEMI, supra note 6, at 591. 2012] Global Constitutionalism & Public International L awyers 21 interpretations. I believe that, from this point of view, it should be possible to take comfort in the discomfort of indeterminacy of global constitutionalism. While there are of course moments of stasis, global constitutionalism should be regarded as a shifting debate. There will therefore not be room for “a global constitution;” instead the “ism” of global constitutionalism should be embraced. Global constitutionalism should thus be understood 68
as an on-­‐going process, one with the potential to continually self-­‐correct. It appears that this can only take place if the contributors to the debate attempt to “unlearn” that which they have learned from their domestic constitutional systems about constitutionalism. They need to break the habit. The final point relates to the increasing significance of private law in public international law and the reluctance of international lawyers to take this seriously. Whether in the form of private military companies as mentioned above, human rights and business, or of bilateral investment treaties, private law is a growing part of international law. In contemporary international law scholarship, private law has however been demonized or has been equated with extra-­‐legal processes. It is therefore regarded as a serious and urgent matter to make private military companies and private corporations accountable in a public law framework. Such subsuming under public law causes a blind faith in the public that goes hand in hand with a fear of the private. Taking private law conceptions seriously, such as the varied possibilities for remedies, the (legal) equality of the parties and contractual freedom could therefore provide part of an antidote to the addiction of systemizing that has taken place within the global constitutional debate. E. Conclusion The above argument takes a step back from the contemporary debate on global constitutionalism that revolves around suggestions for what is or should be the global constitution, to identify what it is that draws advocates of global constitutionalism to the field. Understanding the appeal and the motivation behind suggestions for global constitutionalism assists in analyzing the concerns of international lawyers as regards their field at large. The idea of global constitutionalism embodies important – though not existential – concerns of public international lawyers. It is not only the concern about international law that is of interest however; importantly, by looking at global constitutionalism as a field of enquiry conceived by individual authors, we can also get a grip on the weight to be attributed to the notion of global constitutionalism itself. Iain Scobbie states that the identification of “authorial predispositions is simply crucial to evaluating the weight to be given to an argument”, and that it can indeed be “decisive in 68
Elsewhere I term this “organic global constitutionalism,” SCHWÖBEL, supra note 9, particularly Chapter 4; Christine E. J. Schwöbel, Organic Global Constitutionalism, 23 LJIL 529-­‐553 (2010). 22 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
69
law.” In order to understand and assess visions of global constitutionalism, it is therefore a useful path of enquiry to examine the country that the author comes from, the author’s legal education, the author’s sex, age, ethnic background, religion, and other cultural characteristics. Naturally, there is also the issue of the partial reader. Yet, it is illuminating in terms of the global constitutional debate that the majority of the authors (with significant exceptions) are German, or have at least had a German legal education, regard themselves as general international lawyers, are male, white, and have most likely had a Christian (protestant) upbringing. This not only helps interpret their abstractions in a more concrete and contextual manner, it also assists in making a legal assessment. Most importantly for international law: can these individuals really speak authoritatively about a supposedly global and neutral phenomenon? Within the framework of this paper it has only been possible to touch on the critique of contemporary visions of global constitutionalism. However, global constitutionalism should be viewed as one of a number of competing ideas pertaining to a framework for an international legal order, others being global administrative law, an international ordre 70
public, or global governance. Some of the arguments therefore also apply to these competing concepts insofar as they too foreground liberal democratic political models. It has hopefully become clear that the prevalent concerns regarding a loss of control of international lawyers only stand fast if one assumes that international law is predicated on an exclusively liberal-­‐democratic political model. The recognition that global constitutionalism could be influenced by other political models, some that do not (or would not) necessarily mimic the domestic constitutional orders of the developed world, allows for a creativity that could occasion progressive social change. Global constitutionalism, once detached from these concerns about fragmentation and the influence of law on society, might be an effective tool for social change in that it could provide the space for discussing global concerns with actors that may have been previously excluded and whose interests may have previously not been heard. 69
Iain Scobbie, Wicked Heresies or Legitimate Perspectives? Theory and International Law in INTERNATIONAL LAW 59 rd
(Malcolm D. Evans 3 ed., 2010). 70
See Neil Walker, who writes about the disorder of orders in Beyond boundary disputes and basic grids: Mapping the global disorder of normative orders, 6 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 373-­‐396 (2008). Articles The Territorial Challenge: From Constitutional Patriotism to Unencumbered Agonism in Bosnia and Herzegovina By Zoran Oklopcic*
A. Introduction Constitutional patriotism is on the ascent among contemporary constitutional theories. Its objective is to re-­‐orient the loyalty of citizens away from particularistic attachment to a Nation, and towards the Constitution. In promoting political justice, constitutional patriotism relies on citizens' acceptance of a particular constitutional order not as an embodiment of particularistic ethnocultural, or even statist values, but rather as an expression of universal political principles. In other words, a constitutional order ought not to be seen as an instrument for a nation's political self-­‐actualization, but rather as a framework for institutions and a repository of values that enable a diverse body of citizens to critically rework their particular traditions in light of universalist principles of political justice. While the intellectual origins of constitutional patriotism stem from a specific set of concerns in post-­‐1945 West German society, as a constitutional doctrine, constitutional 1
patriotism increasingly has global appeal. It has been suggested that constitutional patriotism is suitable not only to a society that shuns nationalism, and is coming to terms with darker aspects of its past, but also to contemporary deeply divided multinational societies. Different authors have expressed their hope that versions of constitutional patriotism may be relevant for diverse multinational states such as Canada, South Africa, 2
Northern Ireland, or Bosnia and Herzegovina.
*
Assistant Professor, Department of Law Carleton University. This paper benefitted from the discussions at the 2009 conference of the Toronto Group for the Study of International, Transnational, and Comparative Law. Email: [email protected]. 1
2
For the intellectual history of the concept, see JAN-­‐WERNER MÜLLER, CONSTITUTIONAL PATRIOTISM 15-­‐45 (2007). Omid Payrow Shabani, Who’s Afraid of Constitutional Patriotism? The Binding Source of Citizenship in Constitutional States, 28 SOCIAL THEORY AND PRACTICE 419, 435 (2002); Elsa van Huyssteen, ‘The Glowing Fire of our New Patriotism’: The Constitutional Court, Civil Society and Constitutional Patriotism in South Africa in GATHERING VOICES: PERSPECTIVES ON THE SOCIAL SCIENCES IN SOUTHERN AFRICA (Teresa Cruz María & Silva Ari Sitas eds., 1998); Gerard Delanty, Habermas and post-­‐national identity: Theoretical perspectives on the conflict in Northern Ireland, IRISH POLITICAL STUDIES 1, 11 (1996); Esad Zgodić, Ustavni patriotizam za Bosnu I Hercegovinu (Constitutional Patriotism for Bosnia and Herzegovina), 1 GODIŠNJAK BOŠNJAČKE ZAJEDNICE KULTURE “PREPOROD” 13 (2010). 24 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
However, the uneasy relationship between constitutional patriotism and nationalism has not gone unnoticed, as constitutional patriotism faces two sets of objections: pragmatic and normative. The pragmatic objection comes in two variants. The first argues that adherence to abstract universalist principles renders constitutional patriotism motivationally powerless to sustain a vibrant democratic society that needs common political sympathies, based on shared ethnicity and culture, to enable social solidarity and political deliberation. The second is the flipside to the first and argues that constitutional patriotism is motivationally too strong—that its symbolic use of a particular political history motivates the majorities excessively, while at the same time alienating minorities from the particular polity. This latter pragmatic objection depends on a normative presupposition that a diverse polity must be ethnoculturally neutral in order to fulfill the demands of political justice. A polity that embodies the symbolism of a particular political history can never be free of ethnic bias, and hence ethnoculturally just. My quarrel with constitutional patriotism intersects with these normative arguments, but also cuts deeper. Constitutional patriotism is highly suspect as a political doctrine in a multinational political setting, in that it cannot compellingly respond to the problem of arbitrary delineation of territory.
The question of territory, the physical shape of a constitutional order, is neglected in constitutional theory (including constitutional patriotism), but nonetheless has deep salience for constitutional politics. The shape of a territory will determine the identity of the population, and, as a result, the population’s attachments, symbols, values that are destined to ‘trickle up’ to the constitutional document. Equally, the inherited composition of the population will make certain institutional outcomes seem natural: unitary versus federal structure, consociational arrangements in the executive, regional vetoes in the legislature and the like. Even though constitutional patriotism aspires to critically rework inherited national traditions, any constitutional patriotic project will carry a particular national ‘flavour,’ and will necessarily respond to its territorial ‘given.’ This is not problematic in a traditionally homogeneous country such as Germany where almost everyone shares loyalty to the state, but remains inappropriate in countries such as Bosnia and Herzegovina, which has recently attracted the attention of several scholars as potentially fertile ground for constitutional patriotism outside of its original context.
With these initial concerns in mind, the aim in this paper is three-­‐fold. First, my aim is analytical: I want to catalogue the defenses of constitutional patriotism and to demonstrate how none suffice when confronted with the ‘territorial challenge’ of constitutional theory. The purpose of critiquing the defenses of constitutional patriotism is both negative and constructive. I will discuss the problems of various defenses of constitutional patriotism with an aim to extract valuable normative commitments and psychological assumptions, that can be used to argue in favor of either a ‘mutated’ constitutional patriotism, or ‘unencumbered agonism’ a theoretical approach I prefer. In so 2012] From Constitutional Patriotism to Unencumbered A gonism 25
doing I stylize available defenses and extrapolate and assess others, which may build on resources already available in debates on constitutional patriotism. My second aim is more practical, in that it is a modest intervention in the debates surrounding constitutional reform in Bosnia and Herzegovina. I argue that in addition to theoretical difficulties that would advise against applying constitutional patriotism to deeply divided states, the invocation of constitutional patriotism can serve the hegemonic purposes of any political elite that has a delineated territory as its basis of power. The simultaneous hypocrisy and sterility of invoking constitutional patriotism, as I will argue using the example of Bosnia and Herzegovina, only compounds its theoretical problems. As Bosnia inches toward a new round of ‘mega constitutional politics,’ it is important that doctrines with the potential to frame the constitutional debate and to provide moral imprimatur to political allegiances, be scrutinized, assessed, and, in this case, judged as problematic for being ‘marketed’ in deeply divided states.
My third aim is constructive: I will sketch an alternative to the account of unencumbered agonism that diverges from constitutional patriotism, while drawing on elements of its heritage. As a model, unencumbered agonism would be particularly suited for fragile and deeply divided states, in which there is no consensus on the most basic questions such as the very existence of a state as a unified polity. In rejecting constitutional patriotism, this article joins a growing chorus of voices in 3
constitutional scholarship. However, given the profundity of the territorial challenge at constitutional patriotism’s foundation, this article cannot simply abandon it in favor of one of its closer conceptual cousins which, while departing from ‘constitutional patriotism’ 4
seeks to salvage patriotism’s ‘brand.’ For the same reason, my argument will go beyond 3
For a prudential critique of constitutional patriotism in the context of the European Union see Mattias Kumm, Why Europeans will not embrace constitutional patriotism, 6 ICON 117 (2008). For a critique in the Canadian context, see Jean-­‐François Gaudreault-­‐DesBiens, The Fetishism of Formal Law, the Circumstances of Constitutional Patriotism, and the Fate of Complex Polities in NATION ÜBER ALLES: PROCESS OF REDEFINITION AND RECONSTRUCTION OF THE TERM NATION IN CENTRAL EUROPE (Michal Vasecka ed., 2008). For a critique in the context of Northern Ireland, see Alexander Schwartz, Patriotism or Integrity? Constitutional Community in Divided Societies, 31 OX. J. LEG. S. 503 (2011).
4
See Cecile Laborde, From Constitutional to Civic Patriotism, 32 B. J. POL. S. 591 (2002); Antonino Palumbo, Patriotism and pluralism: identification and compliance in the post-­‐national polity, 2 ETHICS AND GLOBAL POLITICS 321 (2009); Ephraim Nimni, Constitutional or Agonistic Patriotism? The Dilemmas of Liberal-­‐Democratic States in CONSTITUTING COMMUNITIES: POLITICAL SOLUTIONS TO CULTURAL CONFLICT 94 (Per Mouritsen & Knud Erik Jorgensen eds., 2008).
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5
even bolder rejections of constitutional patriotism, which in the name of “integrity” or 6
“incrementalism,” assume and seek to preserve, the territorial frame of the state. By the same token, the theoretical project of unencumbered agonism shares its rejection of constitutional patriotism with the more practice-­‐oriented academic agenda of democratic consociationalism. It doesn’t, however, commit to consociationalists’ institutional prescriptions which request some form of power sharing between 7
antagonistic groups in a deeply divided polity. While consociational power-­‐sharing agreements will often emerge as a tentative result of constitutional struggles in these locales, unencumbered agonism is comfortable both with thicker forms of constitutional identity (should they emerge from the constitutional struggle), as well as with radical 8
constitutional options such as secession and partition. Finally, while the implications of the theoretical argument of this paper and the constitutional prescriptions of democratic consociationalists partly overlap, the tonality of my and their suggestions is different. For consociationalists, secessionist agendas in deeply divided societies are prima facie suspect and dangerous—at any rate, not a preferred political outcome. In contrast, given the theoretical commitments of unencumbered agonism that will be revealed in the article, secessionists’ pursuits enjoy dignity as morally co-­‐equal political projects within the constitutional struggle.
B. Exploring the Evolving Defenses of Constitutional Patriotism
How does constitutional patriotism respond to the problem of political founding, and the legitimate scope of a constitutional order’s territory? The first strategy ignores the problem, embracing the arbitrariness involved in the constitution of a political space, and employs the counterfactual device of unanimous contracting, operating solely at the level of constituting institutions, rather than the logically preceding condition for these institutions: the constitution of territory. The reverse side of this strategy is to shift the 5
See Schwartz, supra note 3.
6
See Hanna Lerner, Constitution-­‐writing in deeply divided societies: the incrementalist approach, 16 NATIONS AND NATIONALISM 68 (2010).
7
For the consociationalists’ rejection of the Arab intellectuals’ invocation of constitutional patriotism in the context of Iraq’s constitutional transformation, see BRENDAN O’LEARY, JOHN MCGARRY & KHALED SALIH, THE FUTURE OF KURDISTAN IN IRAQ 30 (2005).
8
In contrast, the recent upsurge of interest in deeply divided societies among constitutional lawyers and political scientists focuses on the choice between “integration” and “accommodation.” See generally, SUJIT CHOUDHRY ED., CONSTITUTIONAL DESIGN FOR DIVIDED SOCIETIES: INTEGRATION OR ACCOMMODATION? (2008). Those who consider secession a legitimate option seek to discourage it through constitutionalizing, a rather cumbersome procedure, see WAYNE NORMAN, NEGOTIATING NATIONALISM: NATION-­‐BUILDING, FEDERALISM AND SECESSION IN THE MULTINATIONAL STATE 204 passim (2006).
2012] From Constitutional Patriotism to Unencumbered A gonism 27
ground of legitimacy along a horizontal, temporal axis: from the past in which the hypothetical social contracting occurred, to the future which holds the promise of political justice and social inclusion. The second strategy for constitutional patriotism is to rework the idea of past unanimity, understood from the vantage point of an individual—a ‘reasonable person’—who, if treated justly, cannot justifiably complain about being ‘captured’ within the boundaries of the existing polity. Form the juncture of a ‘reasonable person’ the inquiry forks in two directions. On the one hand, we could attempt to inject the regulative ideal of ethnocultural justice into constitutional patriotism in order to argue how a ‘reasonable’ citizen ought to behave in the context of deeply divided states. On the other hand, we can chose to understand the ‘reasonable person’ of constitutional patriotism, less as a normative ideal, but rather as a virtuous, meek, character who accepts the initial territorial delineation. Finally, the fourth strategy—contrary to all the previous ones—cedes ground on the issue of the legitimate territory, and argues that constitutional patriotism must remain silent on the issue of the scope of a democratic unit. I. From Worthy Founding to Worthy Aspiration While Habermas is not considered a theorist of political foundational moments in the same way as Hobbes, Rousseau or Arendt, his work shares in the intellectual patrimony of social contract theories. Like many other notable contemporary theorists, the social contract is, for Habermas, a counterfactual device used to induce an intellectual disposition that would enable us to see ourselves as co-­‐equal authors of the laws we are subjected to. The idea that “an arbitrary number of persons freely enter into a constitution-­‐making practice …. satisfies the important condition of an original equality of the participating parties, whose 9
‘yes’ and ‘no’ count equally.” But, to enter into “constitution-­‐making practice” is not the same as entering into the practice of creating a constitutional order in its totality. The logically and temporally preceding question of constituting a territory, before constituting a constitution with a capital “C,” is irrelevant. Habermas readily concedes that he simply assumes a “spatiotemporally delimited collectivity” in “the real world” where boundaries 10
are “settled by …. the arbitrary outcomes of wars and civil wars.” Habermas is aware, if unconcerned, that a particular composition of the polity must affect the content and outcome of constitutional deliberations at the fourth constitutive moment, irrespective of the formal demand for unanimity. He writes that “if the population of citizens as a whole shifts …. new discourses will be held about the same 9
Jürgen Habermas, Constitutional Democracy: A Paradoxical Union of Contradictory Principles?, 29 POLITICAL THEORY 766, 776 (2001). 10
JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY, 133 (William Rehg (tr., 1998).
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questions and new decisions will be reached.” This suggests that a change in the composition of the polity will tilt political decisions toward the will of the new political majority, and that the rules of the constitutional game are fundamentally decided by the initial composition of consociates. At a later stage, however, Habermas subtly shifted his justification for constitutional patriotism. While not mentioning constitutional patriotism by name, he elaborates themes already present in Between Facts and Norms. He revisits the idea of self-­‐legislation and again argues that citizens must be able to understand themselves as self-­‐legislating actors. However, he no longer employs the device of unanimity, but argues that self-­‐legislation implies equal consideration of the political views of the members of the polity, as well as equal appreciation for their interests. This shift in Habermas’ justification of a constitutional patriot polity emerges when he tackles the objection of infinite regress to his proceduralist attempt to reconcile popular 12
sovereignty and the idea of human rights. The procedural legitimacy of a political outcome depends on the legitimacy of the rules that frame that particular discourse from a temporal, social and material point of view. Habermas admits that such a legitimizing chain reaches back beyond “constitution-­‐making practice.” A constituent assembly, after revolution or secession, for example, cannot safely vouch for the legitimacy of the rules according to which it was constituted. And even if it could, it wouldn’t solve the problem: we would still need to justify these rules by invoking a higher set of norms. Such an imaginary constituent assembly would lack legitimacy not only because of the absence of prior procedural rules that legitimated its existence; more importantly, its legitimacy would be dubious because there are no legitimate rules for delineating its territorial jurisdiction, and consequently its very composition. The problem of infinite regress is not constrained to the issue of constituting institutions, but stretches back to the very beginning of a polity in its totality, including the territorial aspect of a constitutional order. Habermas’ answer to infinite regress is to turn our attention away from the political foundation, and toward the future. He meets the challenge of legitimacy by pointing out that constitution-­‐making is a “tradition-­‐making enterprise,” an understandable expression 13
of a future-­‐oriented character, or openness.” Yet, there are two problems with this account. The first is that Habermas’ turn to the future is not decisive; the promise of future inclusivity can only work if subsequent 11
JÜRGEN HABERMAS, STRUGGLES FOR RECOGNITION IN DEMOCRATIC CONSTITUTIONAL STATE in 8 THE INCLUSION OF THE OTHER: STUDIES IN POLITICAL THEORY, 203, 213 (Ciaran Cronin & Pablo DeGreiff, eds., 1999).
12
Habermas, supra note 9, at 772.
13
Id.
2012] From Constitutional Patriotism to Unencumbered A gonism 29
generations adjust their political disposition, and decide to see themselves as being “in the same boat” as the founders. All participants in subsequent “interpretive battles” must be able to judge the constitutional order from the “same perspective.” But that is precisely the problem in deeply divided societies. That “same perspective” is, among other things, an arbitrary territorial referent that, at the time of founding, was supported by some, and vehemently opposed by other purported ‘consociates.’ The promise of social inclusion doesn’t undo the fact of national exclusion, or over-­‐inclusion. Even if he were to sever the link between the founders’ intention and the desirable direction of the constitutional ‘boat,’ Habermas’ invocation of a desirable future horizon is vulnerable on its own. As Bonnie Honig observes, Habermas “legitimates constitutional 14
democracy by way of future promised reconciliation.” Habermas’ “hoped for future in progressive terms,” according to Honig, turns that future into a ground of legitimacy of constitutional order. Its character as an open-­‐ended future is undone by progress’ 15
guarantee.” Honig cautions against the possibility that participants in “interpretive battles” who remain in the minority are often unpersuaded by the logic of the majority. 16
Instead, they are “minoritized, over and over, into silence and aggression.” Honig’s point is well taken, but we would still do well to ask what would be the end-­‐result of such progress. What is the asymptote toward which Habermas’ constitutional progression strives? Habermas is not explicit about the wished-­‐for, end result. Yet, his illustration of American constitutional development gives us an indication of what he has in mind. He claims that interpretive constitutional battles in the United States brought about the “inclusion of marginalized groups and .... the empowerment of deprived classes,” 17
which, in time, all participants in political life came to appreciate as legitimate. In a similarly lateral remark, Jan Werner Müller argues that minorities can try to tell stories about ever widening circles of inclusion, appealing to a common patriotic care to remain 18
faithful to constitutional essentials and render their realization ‘ever more perfect.’ While ever more perfect solidarity and inclusion feature both in Habermas’ and Müller’s accounts, its profile should be raised higher. As aspirations, solidarity and inclusion should 14
Bonnie Honig, Dead Rights, Live Futures: A Reply to Habermas’s “Constitutional Democracy,” 29 POLITICAL THEORY 792, 797 (2001). 15
Id. at 797.
16
Id. at798.
17
18
Habermas, supra note 9, at 775 [emphasis author’s].
Jan-­‐Werner Müller, A European Constitutional Patriotism? The Case Restated, 14 EUR. LAW J. 542, 547 (2008).
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survive in an updated version of agonistic politics more suitable for deeply divided societies. I will return to this point toward the end of the essay. II. Between Reasonableness, Justice, and Ethos: The Character of a Constitutional Patriot Both justifications—worthy foundation, and worthy aspiration—operate along the horizontal, temporal axis of the life span of a constitutional patriot polity. Yet, a permutation of these justifications enables us to change the manner of justifying constitutional patriotism away from the quality of the past and future state of being, and toward an individual psychosocial disposition that ought to sustain the constitutional patriot project in any moment. For Omid Payrow Shabani, it is the ideal of a reasonable 19
person that “makes the normative proposition of constitutional patriotism possible.” Grounded in the ideal of a reasonable person, constitutional patriotism should apply to a gamut of liberal-­‐democratic states: from a nation-­‐state, to a multinational state, to a 20
supranational political order. But what about politically mobilized groups in multination states who do not wish to belong to a common political framework? According to Shabani, “[i]f we view the constitutional state as composed of “reasonable” people who have to live together despite their differences, it is hard to understand why recognition of the fact that they are the authors of the system of laws that applies to all of them equally, is not enough 21
psychologically to make them identify with each other, as fellow citizens.” Shabani’s claim about reasonableness of reconciliation with a pre-­‐existing constitutional patriotic order critically hinges on his claim that reasonable people somehow ‘have to live together despite their differences.’ Is ‘having to live together’ an empirical observation about the practical difficulty of carving out a new polity from an existing one, or is it a normative precept demanding citizens live together in spite of their differences? On the one hand, Shabani’s claim appears to be empirical. He writes that the redrawing of boundaries, such as in the Balkans during the 1990s, is unrealistic and naive given intermixed populations and the “diverse reality” of the existing states. If that is the case, the ultimate justification for constitutional patriotism would be a prudential calculus of the moral hazard of breaking apart existing states, and not a normative claim about why an existing state ought to exist with its current boundaries. Shabani is mistaken in his optimism about the ease with which equal treatment translates into a sense of political belonging. Persistent secessionist mobilization of the Basques, Flemish, Catalans and 19
Shabani, supra note 2, at 435.
20
Id. at 436.
21
Id. at 437.
2012] From Constitutional Patriotism to Unencumbered A gonism 31
Québécois disproves his claim. On the other hand, if having to live together is a normative precept, we need to ask what do universalistic ethical principles of political justice demand, when contextualized in a multinational, deeply divided state? Shabani invokes Kymlicka favorably in flashing out his account of constitutional patriotism, but never engages directly the prescriptions that Kymlicka’s account may hold for such states. In the following section I will try to unpack Kymlicka’s prescriptions and ask how useful they actually are for the project of political justice as applied to multinational states. Doing so raises the question whether the trope of a reasonable person is just a provisional rest stop in the development of an argument that ricochets between past foundation, future aspiration, and omnipresent pursuit of justice. III. Constitutional Patriotism and Ethnocultural Justice While Shabani suggests that justice is an inescapable feature of the idea of a reasonable person—who sustains constitutional patriotism in the face of deep diversity—he never connects constitutional patriotism with a theoretical program that directly speaks to questions of justice in a multinational setting. Yet, for justice to be operative in the context of deeply divided, most often multinational states, it must address the normative legitimacy of nationalist aspirations. It would seem logical for constitutional patriotism to align itself with the program of ethnocultural justice if it wanted to increase its cachet as a credible political alternative in deeply divided states. While charging that modern unitary liberal-­‐democratic states provide unfair advantages to the dominant nation by organizing the public sphere around the dominant national 22
culture, theorists of ethnocultural justice do not offer precise constitutional blueprints. In addition, these states often define themselves constitutionally as belonging to the dominant nations. Ethnocultural justice demands that these unfair advantages be remedied. Ethnocultural justice may, according to Will Kymlicka, be satisfied by individual minority rights, but may also include territorial autonomy, or can be satisfied by reconstructing the state as a multinational federation. However, it is not clear which of these possible solutions Kymlicka prefers, and why. For example, Kymlicka claims not to be 23
defending the concept of territorial autonomy, as such. Yet he states that “adopting multination federalism [which, of course, entails the most robust territorial autonomy] creates a genuine form of equal treatment, by giving national groups the same power to 24
govern themselves and to live and work in their own language.” Also, while he does not 22
WILL KYMLICKA, MULTICULTURAL CITIZENSHIP 108 (1996). 23
Will Kymlicka, Reply and Conclusion in CAN LIBERAL PLURALISM BE EXPORTED? WESTERN POLITICAL THEORY AND ETHNIC RELATIONS IN EASTERN EUROPE 345, 362 (Will Kymlicka & Magda Opalski, eds.,2001).
24
Id. at 354 [emphasis added].
32 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
commit to a specific model, he notes—contrary to Shabani’s prescriptions for a ‘reasonable person’ of constitutional patriotism—that “it is not reasonable or realistic” that a 25
multinational state be seen as a political unity in perpetuity. By advocating multinational federalism, Kymlicka suggests that a unitary state ought to be constitutionally reconstructed as a just multinational federation. However, by not committing to the ideal of perpetuity, Kymlicka does not exclude secession from the range of legitimate solutions – even in a situation where the state, for example, a multinational federation – is ethnoculturally just. This raises the question of why. If a state is ethnoculturally just, why should we allow for—
and not condemn or demand mobilization against—attempts to create a new independent 26
(mono-­‐) national unit? This appears to be the position advocated by Shabani in his articulation of constitutional patriotism. For Kymlicka, “there is no obvious way for a free and democratic country to prevent a self-­‐governing region from electing secessionist parties, and from holding referenda on secession.” Preventing this, according to Kymlicka, 27
“can only [be] prevent[ed] by undemocratic and illiberal means.” But if a just state ought 28
not to prevent a secessionist referendum, why shouldn’t it simply ignore it? And if secessionists were to try to disrupt the workings of the state, the state would, arguably, be justified in quelling the rebellion, by force, if necessary. Kymlicka does not address this question directly. He does say that the accommodation of minority nationalist demands (possibly in the form of territorial autonomy) diminishes the possibility of violent conflict. From this it would follow—although Kymlicka is not explicit about this—that the consequentialist calculus as to what constitutional settlement would be welcomed with least resistance, is an inescapable element in deciding on a particular prescription of ethnocultural justice. Equally, from a normative standpoint, the requirements of ethnocultural justice are vulnerable to shifts in perspective. Kymlicka’s vantage point is local and domestic. Local ethnocultural justice may require reconstituting the unitary state into a multinational federation, and creating new sub-­‐national territorial units. However, if we ask what 25
WILL KYMLICKA, POLITICS IN THE VERNACULAR: NATIONALISM, MULTICULTURALISM AND CITIZENSHIP 118 (2001). 26
Kymlicka, Western Political Theory and Ethnic Relations in Eastern Europe in 13 KYMLICKA, supra note 23, at 27.
27
Kymlicka, supra note 23, at 390. 28
At this point the answer might be that multinational federalism is an expression of the compact between self-­‐
determining peoples, which implies the right to secession. In words of Jacob Levy, “if … ethnically-­‐sensitive federalism is justified on grounds that the group gaining control of a province is a national and if nations have a prima facie right to self-­‐determination, then moving toward such federalism seems to grant a key premise of a future argument for secession.” Jacob T. Levy, National Minorities Without Nationalism in THE POLITICS OF BELONGING: NATIONALISM, LIBERALISM, AND PLURALISM 155, 156 (Alain Dieckoff ed.,2004).
2012] From Constitutional Patriotism to Unencumbered A gonism 33
ethnocultural justice would require globally, we would not have much in the way of guidance on whether sub-­‐national territorial units should remain part of multi-­‐national federations. If Montenegrins, Fijians or Luxembourgeois can have an independent state, and not filter their presence in global politics independently, and not through the colander of a multinational state, why should Québécois remain a mere member of a locally 29
ethnoculturally just Canadian federation? Why would their demands—to use Shabani’s terminology—be unreasonable? Depending on one’s perspective, we may understand a multinational federation either as a principled solution required by (local) ethnocultural justice, or as a prudential, second-­‐best compromise in the absence of full independence for the minority nation, according to a conception of (global) ethnocultural justice. This leads to a further complication. If we reject the perspective of global ethnocultural unfairness, we might be impelled to reconsider the nature of multinational accommodation in the domestic context. If the local perspective is the only perspective there is, and other options, such as independence, or territorial autonomy, are out of the question, then the accommodation of the minority nation in the form of territorial autonomy may itself be considered unfair, and subject to further modifications. After the dissolution of Yugoslavia, Bosnian Serbs fought to create their own independent state, or join Serbia. The quasi-­‐federal structure of today’s Bosnia and Herzegovina can be seen as a compromise between the frustrated efforts of Bosnian Serbs to achieve their first-­‐order preference, and the frustrated but also legitimate efforts of Bosnians to maintain a unitary Bosnia and Herzegovina. Republika Srpska (RS), the Bosnian-­‐Serb entity within independent Bosnia and Herzegovina, can be seen as a principled compromise between those two projects. However, if the tacit legitimacy of an independent polity for a minority nation is denied, it serves to undermine the logic of constitutional accommodation usually associated with ethnocultural justice, where sub-­‐state territorial units are seen as a 30
response to minority nations’ demands for recognition and political equality. If independent status for a minority nation is not considered as a legitimate possibility, this would open the door to the normative argument that all the territorial units within independent multinational states, such as Bosnia, be refashioned according to the demands of ethnocultural justice. This would mean that the minority within the minority has the same right to protection against being dominated in the first order minority’s territorial unit. For example, Bosniaks in Republika Srpska – one of the two quasi-­‐federal units in Bosnia and Herzegovina – have complained that the symbols of the RS violate the norms of national equality. As a result, a ruling of the Bosnian Constitutional Court ordered 29
A potential way around this difficulty is to say that ethnocultural justice is important only domestically, because only domestically does it impact individual autonomy and flourishing. The fact that a member of a national community does not have a unit to call her own in an international setting does not subtract from the possibilities for her individual autonomy. 30
KYMLICKA, supra note 25, at 101. 34 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
the RS National Assembly and the Parliament of the Federation of Bosnia and Herzegovina 31
to change some of its symbols to incorporate the symbols of other constituent nations. Equally, the Constitutional Court of RS has declared that the RS anthem violates the vital national interest of Bosniaks and Croatians in the RS. The aim of these legal challenges and court decisions was, arguably, to dilute the national ‘flavour’ of the two respective entities, to make them more inclusive and ethnoculturally just on a sub-­‐local level. The result can be seen as undermining the project of ethnocultural justice on a local level, because it brackets off the possibility of implementing a global strategy of ethnocultural justice. The upshot of these examples is that ethnocultural justice is less instructive in judging constitutional legitimacy than we might think at the first, due to its unresolved geographic range. Ethnocultural justice commends the reconstruction of the unitary mono-­‐national state in the direction of decentralization where the component nations’ perpetuation will be given institutional help. However, ethnocultural justice does not tell us whether this should be in the form of a new territorial polity. It also does not specify its constitutional status. For example, should it be only territorial autonomy within a unitary state, or a federal unit in a multinational federation, or a fully ‘upgraded’ territorial autonomy, an independent state? In a similar vein, ethnocultural justice does not tell us how the boundaries of a territorial autonomy should be drawn. While it suggests that a national group should form a numerical majority within a territory, it is silent on whether the boundaries should be drawn expansively, that is, to encircle as many members of the national group as possible. Or, whether boundaries ought to be drawn in a more restricted manner, so as to exclude as many non-­‐nationals from the new political unit. By the same token, ethnocultural justice provides no guidance as to whether there should be only one unit encapsulating members of the national group within a larger federation, or whether there may be several sub-­‐
32
national polities in which there are numerical majorities of the same group. Finally, ethnocultural justice does not tell us—due to the unresolved question of perspective—
how the new polity, created for the sake of a minority nation, should be internally organized. Should it be a monolithic polity, as compensation for not achieving full independence, or should it have further robust constitutional guarantees – like veto, proportional representation, etc., – for ‘new’ minorities within minorities? To put it 31
The national symbols featured in the coat of arms of Republika Srpska and the Federation of Bosnia and Herzegovina were based on “distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.” U-­‐4/04, Partial Decision on the Merits, 31 March 2006, (Constitutional Court of Bosnia and Herzegovina) at para. 124, available at: http://vlex.com/vid/-­‐59929523 (last accessed: 23 December 2011).
32
Kymlicka treats this possibility as a way to dilute the political power of the ethno-­‐national group, but the territorial pattern of distribution of this group may be such that it would not be possible to include the majority of them within a single territorial unit without wronging the other ethnic group within a multinational polity.
2012] From Constitutional Patriotism to Unencumbered A gonism 35
differently, ethnocultural justice does not come with a built-­‐in perspective, yet its prescriptions are perspective-­‐sensitive. As a result, constitutional patriotism cannot become normatively immune to nationalist challenges if injected with ethnocultural justice. IV. A Constitutional Patriot in a Divided State: Meek, Not Reasonable The inability of ethnocultural justice to stabilize an argument in favor of constitutional patriotism in deeply divided states undermines, by implication, the appeal of a constitutional patriot qua ‘reasonable person’ as well. But Shabani’s reasonable person need not only be understood as an embodiment of the demands of justice. Equally, the idea of a reasonable person can be understood as shorthand for the desirable psychosocial disposition that a constitutional patriot should maintain, irrespective of (or in addition to) the capability to engage in the discourse of justice. In other words, we need not inquire into normative justifications for constitutional patriotism, but rather to articulate a virtuous character of a constitutional patriot. One may argue that this view is already present, if unstated, in other justifications for constitutional patriotism. Recall Habermas’ defense of the fiction of unanimous contracting as a self-­‐motivating device that enables us to see ourselves as self-­‐legislators. A more explicit explanation of unanimity links unanimity to reasonableness, and reasonableness to being prone to modify one’s arguments. For Thomas Nagel, unanimity describes a mode of reaching agreement “which could be achieved among persons in many respects as they are, provided they were also reasonable and committed within reason to modifying their claims, requirements, and motives in a direction which makes a 33
common framework of justification possible.” Even though Nagel remains committed to ‘reason,’ his account of unanimity is impossible without persons being committed to modifying their political demands.
While Nagel links ‘commitment to modification’ to the idea of reason, recent writings on constitutional patriotism emphasize a “moderate way of life,” which arguably leads to such a ‘modification,’ as a free-­‐standing virtue, and highlight an “idealistic citizen [who] has a 34
special obligation to adopt a moderate stance” According to Karol Sołtan, constitutional patriotism as a vehicle for moderation appears particularly well suited to multinational states because “moderation requires … both a recognition of the pervasive power of destruction and violence, and making the defeat of destruction a central goal.” Notice however, how the virtue of moderation remains instrumental, invoked to help fend off 33
34
Thomas Nagel, Legitimacy and Unanimity in 3 EQUALITY AND PARTIALITY 33, 34 (1995).
Karol Sołtan, Constitutional Patriotism and Militant Moderation, 6 ICON 96, 99, 103 (2008).
36 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
violence. While it is true that a number of separatist movements promote illiberal radical ideologies, there are other movements that would take issue with being labeled as immoderate. As Scottish, Québécois, and Montenegrin secessionists have pursued, and in the Montenegrin case succeeded, in achieving secessionist projects without destruction and violence. Therefore, positing ‘an idealistic citizen,’ instrumentally committed to moderation in the context of multinational, deeply divided states is inadequate as justification for constitutional patriotism. In a description of a desirable character, we would need to go deeper, and ask: what sort of person would not hold a grudge against the historically contingent incorporation of his ethnic group in a larger state? What kind of a character would, instead of plotting tirelessly to form an independent state, engage generously in political give and take, aiming to construct a common constitutional culture? Or, what kind of a character would extend a welcoming hand, and not perceive threat to his group’s cultural survival? An ethos of such a person would require more than mere ‘reasonableness’ or ‘moderation.’ The most cogent sketch of such a character comes from an elegiac, late essay by Norberto 35
Bobbio, “In Praise of Meekness.” Meekness belongs to the so-­‐called “weak,” or “private” 36
virtues that are inherent to “private, insignificant or inconspicuous individuals.” The meek, Bobbio laments, are not of this world; they don’t show off, and are not aggressive. More importantly, they detest the very spirit of “contest, competition, rivalry, and …. winning.” Such people not only dislike struggle, but the underlying psychological impulses that cause one to have the affinity for struggle. They are not vindictive or resentful, nor do they brood over past offences or historical injustices. They have a deep detachment from “vanity or pride that urges an individual [or a group, we might add] to stand out.” They detest “perpetuate quarrels” and reject “succession of reciprocal grudges and reprisals 37
expressed through the usual justification 'you did that to me so I do this to you'.” A meek person rejects a “destructive life contest”, not only because it is dangerous, as Sołtan seems to suggest, but more profoundly, “out of a sense of annoyance for the futility of its 38
intended aims." The political world that a meek person would want to inhabit is “one where there are neither winners nor losers.” In such a world, there are no contests for 39
primacy, no struggles for power, and no competitions for wealth.” How different an account from the bases of modern constitutionalism! 35
Norberto Bobbio, In Praise of Meekness in IN PRAISE OF MEEKNESS: ESSAYS ON ETHICS AND POLITICS (2000). 36
Id. at 26. 37
Id. at 30.
38
Id. at 29.
39
Id. at 29.
2012] From Constitutional Patriotism to Unencumbered A gonism 37
What is the relevance of meekness to constitutional patriotism? Bobbio reminds us that while a Machiavellian fox, or a Hobbesian wolf are distinctly political animals, a meek lamb 40
never found its way into the metaphorical imaginary of political life. But, if meekness is an antipolitical virtue, can constitutional patriotism as a theory of constitutional politics, still make use of it? An idea along these lines is not as unprecedented as it may seem. While implicitly positioning himself as ambivalent about constitutional patriotism, Joseph Weiler has, in the context of European Union constitutionalism, argued in favor of a ‘habit of soul’ similar to Bobbio’s meekness. Instead of trying to find ultimate authority in a constitutional demos—which, we have seen, is precisely what is disputed in deeply divided states—Weiler suggests a turn toward ‘a constitutional ethos’ which is not obsessed with constituting or reconstituting constitutional demoi, but rather which submits to the existing constitutional regime, where the “end is to try, and try again, to live a life of 41
decency, to honor our creation in the image of God, or the secular equivalent.” While meekness is a cardinal Christian virtue, Weiler anchors his discussion of submission to constitutional Nomos in Jewish religious tradition, which, at least superficially, does not bring tangible benefits to those who blindly submit to a [territorial] Nomos. Yet, the upshot of Weiler’s argument is that the unintended, practical consequence of a submissive attitude may be individual emancipation. I will not explore here how this claim translates into the domain of constitutional patriotism; for the purposes of this essay, it suffices to note that anchoring constitutional patriotism in an ambitious virtue, at least theoretically, provides the strongest case for constitutional patriotism in all contexts. While making the strongest case for constitutional patriotism—not as a deontological or consequentialist, but as a virtue-­‐based project—it would also acknowledge just how ambitious this project is in the context of multinational, deeply divided states. A more practical implication of this sort of justification would be to redirect theoretical energy away from devising macro-­‐political heuristic devices, such as a ‘social contract,’ or a ‘reasonable person,’ and toward micro-­‐political practices such as civic education for charity, generosity, and ‘turning the other cheek,’ not only in the private, but also the public sphere. V. Retrenching constitutional patriotism: Jan-­‐Werner Müller and (modest) hope for constitutional patriotism in deeply divided states The normative problems associated with achieving a just constitutional regime in the context of deeply divided states have not been lost on recent generations of theorists of constitutional patriotism. If the general purpose of constitutional patriotism is to “enable 40
41
Id. at 28.
Joseph H.H. Weiler, In defense of the status quo: Europe’s constitutional Sonderweg in 1 EUROPEAN CONSTITUTIONALISM BEYOND THE STATE 7, 18 (JOSEPH H.H. Weiler & Marlene Wind eds., 2003)
38 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
and uphold a just constitutional regime,” and yet we do not have a reliable indication of what would such justice require, it is no wonder that the theoretical ambition of 42
constitutional patriotism was truncated. In a recent article, Jan-­‐Werner Müller thus makes a crucial concession: constitutional patriotism is “not a freestanding theory of boundary-­‐formation, and therefore, does not answer questions about political self-­‐determination that other rival theories, such as liberal 43
nationalism, may be in a position to answer." This underlying normative uncertainty leads Müller to modesty about its practical applicability. He admits that constitutional patriotism is not “some kind of civic panacea” to be applied to cases of “collective political breakdown,” adding that constitutional patriotism has to rely on existing political units, understood as “more or less clearly bounded political associations." While constitutional patriotism cannot create motivation for a politically just and socially inclusive polity, it can 44
still help us understand an ongoing commitment to those ideals. While Müller is correct to cede ground on the issue of territorial boundaries, the range of applicability of constitutional patriotism hinges on how we understand the clause “more or less clearly bounded.” Formally speaking, every member state of the United Nations is 'clearly bounded,' as its territorial integrity is protected by the UN Charter. However, there are a number of states which are challenged from within or from without. In these contexts, are their territories more or less clearly bounded? If they are, ought constitutional patriotism be legitimately ‘marketed’ to deeply divided societies where there are profound divisions in matters of constitutive constitutional politics? Müller’s concession on normative issues informing the politically prior question of territory allows for a modest understanding of the scope of constitutional patriotism. Yet, Müller’s practical and normative concession is not unequivocal. While he likely would not claim, like Shabani, that those who reject a just constitutional patriotic order are ‘unreasonable,’ he entertains hope that constitutional patriotism could help curb “the sources of moral danger” often associated with both liberal nationalism and traditional forms of 45
patriotism. Even in these contexts Müller remains optimistic about the prospects of constitutional patriotism to bring about a “certain degree of civility even in deeply divided 46
societies.” 42
43
44
Jan-­‐Werner Müller, A general theory of constitutional patriotism, 6 ICON 72, 82 (2008).
Id. at 76.
Jan-­‐Werner Müller, Three Objections to Constitutional Patriotism, 14 CONSTELLATIONS 195, 199 (2007).
45
Müller, supra note 42, at 76.
46
Id. at 79.
2012] From Constitutional Patriotism to Unencumbered A gonism 39
Equally, while his modesty in relation to first-­‐order normative issues would suggest that he would remain agnostic about matters of ethnocultural justice, Müller claims that “no demand for cultural self-­‐preservation by means of political autonomy could be deduced from the theory of constitutional patriotism.” What is more, constitutional patriotism “[i]s more likely to come down on the side of political arrangements that integrate rather than 47
those that separate.” Finally, while claiming that constitutional patriotism is not incompatible with secession, his justification of secession appears restrictive, providing justification only in cases where minorities suffer “unbearable oppression.” Irrespective of some vacillation, Müller’s concessions on the theoretical scope and practical import of constitutional patriotism are welcome. But, his sympathy for integration in deeply divided societies is a potentially dangerous position, which could lead to more bad than good in times of serious civil strife. In the next two sections I will argue against constitutional patriotism in the context of Bosnia and Herzegovina, and suggest a more fitting theoretical model, which, while forsaking constitutional patriotism, takes on board its concern for solidarity and social inclusion. C. Constitutional Patriotism in Bosnia and Herzegovina: Some Arguments The inability of constitutional patriotism to cope with the territorial challenge counsels against its invocation—both as a realistic possibility as well as a distant aspiration—in deeply divided states, such as Bosnia and Herzegovina. Fifteen years after the end of the war, Bosnia and Herzegovina is far from reaching consensus on the normative justification for its existence. While Croats and Serbs in Bosnia grudgingly accept its existence as a matter of external fiat, representatives of Bosniaks and the ‘international community’ at large—international administrators, western diplomats and experts—take its existence for granted, and frame the debate surrounding constitutional reform in terms of improving 48
the ‘functionality’ of the ‘broken’ Bosnian state. As a trope, constitutional patriotism exists in a rhetorical field that seeks to provide justification for state building, and is almost indistinguishable from its older theoretical cousin, civic nationalism. While theorists of constitutional patriotism insist that constitutional patriotism be carefully distinguished from civic nationalism, the reality of political rhetoric in Bosnia suggests otherwise. 47
Id. at 89.
48
William Hague & Paddy Ashdown, Broken Bosnia needs western attention, FINANCIAL TIMES , Dec. 29, 2009, available at: http://www.ft.com/intl/cms/s/0/bf60a826-­‐f4af-­‐11de-­‐9cba-­‐00144feab49a.html#axzz1eM2x8sa8 (last accessed: 23 December 2011). 40 [Vol. 13 No. 01
G e r m a n L a w J o u r n a l Consider similarities between the rhetoric of Bosniak political parties, who support the project of a civic, unitary Bosnian state, and members of the intellectual elite and civil society, who advocate constitutional patriotism. On the one hand, the program of the Party for Bosnia and Herzegovina (SBiH) declares that Bosnia is “older” than any of its ethnic nations, is “founded by the sovereign free will of the people [understood in a civic sense], with the mission to promote a common welfare, sustainable development, and 49
inner cohesion.” Similarly, the Party of Democratic Action (SDA), defines Bosnia and Herzegovina as “a democratic State that belongs to all her citizens” and advocates 50
“nurturing of the patriotic feeling of belonging to the State of Bosnia and Herzegovina.” On the other hand, constitutional theorists such as Zdravko Grebo, argue that through the idea of constitutional patriotism “people don’t renounce their rights and other identifications, but simply feel they are the citizens of their country.” According to Grebo, “one sentence is enough for that, one sentence that they will say with pride and respect: I 51
am a citizen of Bosnia and Herzegovina." Equally, for political scientist Nerzuk Ćurak, constitutional patriotism is “an identification with a state in which you live, but not based on some myths or historical dwellings [sic], but rather based on the loyalty of the state 52
towards its citizens, and their loyalty towards her.” Others, such as a civic leader from Tuzla, the most multiethnic region in Bosnia, demand constitutional reform that would pave the way toward “a constitutional patriotism of the citizens of Bosnia and Herzegovina 53
toward this state.” In addition to scholars and public intellectuals, religious leaders such as Bosnian Grand Mufti Mustafa Cerić, have also voiced support for constitutional patriotism in Bosnia and Herzegovina, a pronouncement received with close attention from theorists of 54
constitutional patriotism, such as Kim Lane Scheppele and Jan-­‐Werner Müller. Cerić’s 49
Stranka Za Bosnu I Hercegovinu, Programska orijentacija Stranke za Bosnu i Hercegovinu (Program Orientation for the Party for Bosnia and Herzegovina), available at: http://www.zabihsana.com/sadrzaj/programska-­‐
orjentacija-­‐stranke-­‐za-­‐bih.html (last accessed: 23 December 2011). 50
th
Stranka Demokratske Akcije, Political Declaration as adopted on the 5 Party Congress, available at: http://sda.ba/download/PROGRAM_DECLARATION_5TH_CONGRESS.pdf (last accessed: 23 December 2011).
51
Interview with Professor Zdravko Grebo, "Potrebno je samo da s poštovanjem kažemo da smo građani ove zemlje,” ("You just have to respectfully say that we are citizens of this country,”) RADIO STUDIO 88, Nov. 25, 2008, available at: http://www.studio88.ba/bh/38/bih/11804/ (last accessed: 23 December 2011). 52
Omer Karabeg, BiH-­‐zemlja zamrznutog konflikta (Bosnia and Herzegovina: A country frozen in conflict), RADIO FREE EUROPE, http://www.slobodnaevropa.org/content/article/1371186.html (last accessed: 23 December 2011).
53
FORUM GRADJANA TUZLE, available at: http://www.forumtz.com/bos/vijest21.html (last accessed: 23 December 2011).
54
Jan-­‐Werner Müller & Kim Lane Scheppele, Constitutional Patriotism: An Introduction, 6 ICON 67, 67 (2008).
2012] From Constitutional Patriotism to Unencumbered A gonism 41
attachment to the underlying values of constitutional patriotism appears dubious, however, in light of his pronouncements elsewhere. Ironizing the existing Bosnian constitutional framework, Cerić, somewhat wistfully, declared: It is now completely obvious that all ethnic groups of the former Yugoslavia—
Slovenians, Croats, Macedonians, Montenegrins and soon, Albanians—realized their exclusive right to their home-­‐ and nation-­‐state. Obviously, only the state of Bosnia and Herzegovina, where Muslims are in the majority, ought to have …. a 55
tribal and not a civic constitution. In light of this statement, civic constitution—and constitutional patriotism—appear less as a means of achieving universalistic values than as a stratagem for achieving what, in Cerić’s words, was denied to Bosnian Muslims: their own nation-­‐state. Does this self-­‐interested strategic invocation, coupled with conceptual confusion, militate against constitutional patriotism in deeply divided societies? A theorist of constitutional patriotism may argue that such meshing of civic nationalism with constitutional patriotism is accidental and does not impinge on the theoretical value of constitutional patriotism. Civic nationalists seek to develop an attachment to a nation, understood not in an ethnic sense, but rather as a community of equal citizens. Constitutional patriotism, on the other hand, seeks to establish allegiance not to a nation—no matter how defined—but rather to a constitution, as a repository of universal, albeit contextualized principles. But that constitution (and the principles it embodies) applies to a referent; the “constitution” of constitutional patriotism regulates the political life of a “community,” or establishes the principles for attaining the “common good,” and obviously applies to some “country.” It is a short step from these unitary referents to that of invoking the idea of a “nation,” as a 56
standard part of any modern constitutional imaginary. We might shirk from invoking a Bosnian civic nation, but if pressed we would still be incapable of explaining the difference between a community of citizens having allegiance to the Bosnian constitution, and a community of citizens understood as a Bosnian civic nation. Since constitutional patriotism doesn’t abandon the vocabulary of a political community, it can legitimately be seen as closely related to civic nationalism. And subtle theoretical alterations, such as Shabani’s, that constitutional patriotism actually “resists creating a fixed identity altogether” cannot 57
paper over the fact that some identity, at some point will be created. The fact that it isn’t fixed is of little consolation to those who find themselves unwillingly captured in a 55
Eldin Hadžović, Reisov Manifest [Reis’s Manifesto], 619 BHDANI,, Apr. 24, 2009, available at: http://www.bhdani.com/default.asp?kat=kol&broj_id=619&tekst_rb=1 (last accessed: 23 December 2011).
56
Some constitutionalists, for example, use the two terms indistinguishably. See Sujit Choudhry, After the Rights Revolution: Bills of Rights in the Post-­‐Conflict State, 6 ANNUAL REVIEW OF LAW AND SOCIAL SCIENCE 301, 316 (2010).
57
See Shabani, supra note 2, at 441.
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particular territorial order. And while an identity won’t remain fixed forever, the territorial boundaries of a state necessarily constitute an imagined spread of symbolic possibilities within which any identity formation can fluctuate. To put it differently, no amount of boiling will turn celery and carrots into tomato soup. In a multinational setting, both civic nationalism and constitutional patriotism are often used by the state’s ethnic majority to justify a specific constitutional design that would translate that group’s demographic position into political power. Users of such rhetoric conveniently forget that “civic” and “ethnic” nationalisms are less empirical realities than rhetorical resources used to assume the moral high ground over one’s opponent. An external decision about which set of boundaries to endorse—such as the decision to recognize Bosnia in its administrative boundaries—directly empowers majorities in the units designated for autonomy or independence to assume the stance of good civic nationalists or—constitutional patriots. Thus, adherence to the constitutional patriotism/civic nationalism political agenda disregards the manner in which Bosnia and Herzegovina came to be an independent state, and simply asserts that Bosnia is “older” 58
that any of its component nations. The flipside of hegemonic invocation of constitutional patriotism in a multinational context is that everybody can invoke it (or the gist of it) for their particularistic purposes as long as the invocator’s group forms a majority in the referent territory. Constitutional patriots are aware of this. Sołtan, for example, claims that constitutional patriotism can be directed toward many different objects of loyalty, but only when it can be simultaneously directed 59
toward a universal civilization. Constitutional patriotism can be grafted onto any political unit, and any political project, so long as there is an appropriate territorial referent that enables politicians who, when speaking of constitutional patriotism, use it to invoke the inclusive “people of:” the people/citizenry of Bosnia, the people of the Serb Republic in Bosnia, the people of Canada, the people of Quebec, instead of the sectarian adjectival people: Serb, Québécois, Croatian people. And as the political dynamic in Bosnia and Herzegovina shows, universalistic ethical principles can be parasitic—as more or less sincere rhetoric—upon any claim in the volatile constitutional politics in deeply divided 60
societies. For example, while Republika Srpska has often been portrayed as a result of the 58
This hegemonic invocation doesn’t need to have a solely domestic side. If constitutional patriotism is defined against its ethnic other, and if that ethnic other is constructed through the external endorsement of a particular territorial distribution, then, in a particular context constitutional patriotism serves the purposes of those who, from the outside, have an interest (and not only an unselfish desire) to maintain a territorial status quo. The practical consequences of such a stance may be good or bad, but at least—at a theoretical level—we would do well to acknowledge that constitutional patriotisms structurally depend on ‘invisible’ actors who enable it to configure itself as an alternative to vicious ethnic nationalism. 59
60
Sołtan, supra note 34, at 96.
Perhaps, for this reason, recent writings on constitutional patriotism among Sarajevo intellectuals offer only qualified support for the constitutional patriot project. For Esad Zgodić, constitutional patriotism can equally be 2012] From Constitutional Patriotism to Unencumbered A gonism 43
genocidal policies of war-­‐time Bosnian Serb leadership, a new generation of more adept (hypocritical?) Serb politicians has employed more inclusive rhetoric that does not smack of ethnic nationalism. Responding to alleged attempts on the part of Bosniaks to achieve hegemony within Bosnia and Herzegovina, Milorad Dodik, the Prime Minister of Republika Srpska, has stated that the status of the RS doesn’t depend on the will of Bosniak politicians but on the “will of the people who live in Republika Srpska, which also means 61
Bosniaks who live here.” As a result, any verdict on the practical impact of constitutional patriotism must be negative. Constitutional patriotism is both prone to hegemonistic manipulation, and simultaneously available to any intelligent contender. Its potential inflammatory effects (‘why constitutional patriotism in your unit, and not in mine?’) and its practical incapacity to discriminate between political projects (‘I can be a constitutional patriot in the same way you are’) compound the theoretical problems discussed in the previous section. If this is the case, what is the alternative? D. The Alternative: Toward Unencumbered Agonism
The previous discussion suggested that we cannot count on ethnocultural justice or its proxies in the form of a reasonable person to stabilize a proto-­‐polity and create a field in which constitutional patriotism can operate. We could follow Bobbio and Weiler and prescribe an ethos of acceptance, timidity and meekness as a moral ideal that would prescribe a ‘new man’ of constitutional patriotism. Though highly unrealistic—and going against the grain of political and constitutional theory that ‘takes men as they are’ (Rousseau), and who are ‘not angels’ (Madison)—‘meekness’ would at least provide constitutional patriotism with an axiomatic and unequivocal starting point. The recent wave of constitutional patriots, such as Müller, have themselves counseled moderation –
not in relation to a citizen’s character, but with regard to the theoretical ambition of constitutional patriotism. While applauding the reluctant thrust of such an understanding of constitutional patriotism, this essay gestures toward an alternative stylization of constitutional politics.
grafted onto the Dayton constitution of Bosnia and Herzegovina, which, for him, would be morally unacceptable given the war crimes and ethnic cleansing that led to the current internal territorial division of the country, entrenched in this constitution. Instead, his understanding of constitutional patriotism’s promise—echoing Shabani’s theme of reasonableness—gestures towards patriotism’s potential to liberate the country from “malevolent irrationalism” of nationalism and “‘custom-­‐based’ patriotism.” See Zgodić, supra note 2, at 23-­‐4. 61
Interview with Milorad Dodik, “Mi svoj put znamo,” FOKUS, Banja Luka, published on the GOVERNMENT OF REPUBLIKA SRPSKA WEBSITE, available on file with the author.
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Such constitutional politics would equally take ‘men as they are,’ and accept that the discourse of justice is of limited relevance, but would also take on board some of the less articulated aspirations of constitutional patriotism. I will call the sketch of this proposed model unencumbered agonism. Unencumbered agonism is inspired by the writing of James Tully, but as will immediately become apparent, my proposition qualifies some of Tully’s arguments, frontlines some of his more implicit claims, and takes into account the critiques his theory has encountered, engaging in the end the preceding discussion of constitutional patriotism. Engaging a diversity of philosophical traditions, Tully’s agonism is a constitutional theory that places the struggle for political recognition —and not meek surrender, nor the pursuit of normative consensus—at the centerpiece of political life and theoretical inspection. A proponent of agonism maintains that political conflict cannot be resolved outside of the struggle itself, by invoking counterfactual heuristic devices such as a social contract, or by trying to deduce what universalistic principles would demand in a particular case. Prima facie, then, agonism seems more fitting to the realities of multinational polities, than does constitutional patriotism. My sketch subscribes to Tully’s general argument, but departs from it in several ways. The first is that unencumbered agonism doesn’t share the tenor of Tully’s argument. Tully has pointed out that the struggle can take the form of ‘agon,’ the chivalrous competition between participants in a constitutional game of striving for political recognition. Tully finds inspiration for his articulation of agonism in the spirit of the Olympic games. The “[y]oung Olympian athlete,” writes Tully, “greets the dawn’s early light with a smile, rises, dusts herself off, surveys her gains and losses of the previous days, thanks her gods for such a challenging game and such worthy opponents, and engages in the communicative-­‐
62
strategic agon anew.” A problem with this metaphor is that it suggests that noble contest should be seen as one of the virtues of constitutional democracy. But, as political life in many pluralist societies demonstrates, political actors do not necessarily perceive their 63
activity as a sort of sport. And, even if they do, they do not wish to be engaged in it all of the time. Ancient and modern, Olympics take place at regular intervals. However, our agonist—a Bosnian, Serbian or Croatian politician—may decide when to pick a fight, but not when and how to end it. Therefore, we should simply acknowledge, rather than celebrate, the inescapable feature of ongoing political struggle to constitute and re-­‐
constitute political communities. 62
James Tully, The Unfreedom of the Moderns in Comparison to Their Ideas of Constitutional Democracy, 65 MLR 204, 219 (2002). 63
As Patchen Markell rightly argued “[t]he maxim, ‘it’s not whether you win or lose,’ only goes so far, especially in politics.” PATCHEN MARKELL, BOUND BY RECOGNITION 33 (2003). 2012] From Constitutional Patriotism to Unencumbered A gonism 45
More importantly, unencumbered agonism takes constitutional struggle across the boundaries of an existing polity. Tully does admit this when quoting Foucault approvingly, he claims that political activity is never closed off by a frontier, and that those engaged in 64
these struggles participate “at a multiplicity of sites,” both domestic and international. If this is indeed so, how can Tully claim that those who ultimately make a constitutional 65
decision are “citizens who are affected?” Does positing the ultimate decisional authority with the citizens of an existing polity presuppose the normative legitimacy of an existing polity? If so, then doesn’t constitutional agonism suffer from the same territorial challenge as does constitutional patriotism? In this regard, I agree with Emilios Christodoulidis’ and David Armitage’s critique of Tully. For Christodoulidis, the “asking price” for meaningful agonistic constitutional politics is that the basic structure that provides the framework for agony and deliberation is not put at 66
stake. Even in Olympic sporting events there are referees and level playing fields. Christodoulidis argues that “the case for constitutionalism as perpetual transgression is to ignore how the rules of recognition, which pin down jurisdiction and constituency, must be kept fast. To claim otherwise is to stretch the constitutional moment to the breaking point 67
and undo what it is we achieve through it.” Equally, for Armitage, Tully’s “practice of civic freedom implies, at the very least, the existence of a civitas within which all agents may 68
conduct themselves as a cives.” In order for Tully’s constitutional project to succeed, there must exist if not an ultimate decider who decides who the ‘cives’ is, then at least a tacit underwriter of the provisional territorial field of the constitutional game, even if this game is endless and open-­‐ended. While granting that the constitutional struggle is ‘not closed off by a frontier,’ neither Tully nor other theorists who celebrate agonism emphasize that the field of constitutional struggle is enlarged to encapsulate actors, forums and normative spaces outside of the distinct constitutional order. This is understandable, because Tully’s lens is chiefly on Canada, a vast, Western liberal democracy, which has experienced little external constitutive pressure. Needless to say, the constitutional context in Bosnia and Herzegovina is markedly different. Even a cursory look at the Bosnian constitutional agon reveals how the space of 64
JAMES TULLY, 1 PUBLIC PHILOSOPHY IN A NEW KEY: DEMOCRACY AND CIVIC FREEDOM 139, 141, 154 (2008).
65
Id. at 175.
66
Emilios Christodoulidis, Constitutional Irresolution: Law and the Framing of Civil Society, 9 ELJ 401, 416 (2003). 67
Id. at 426.
68
David Armitage, Probing the Foundations of Tully’s Political Philosophy, 39 POLITICAL THEORY 2011, 124, 127 (2011).
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the constitutional struggle is enlarged, and that the putative ‘referees’ cannot stay above the fray. The ultimate political and legal authority in Bosnia, the Office of the High Representative—“the referee,” for all intents and purposes—is challenged not only domestically in Bosnia, but increasingly internationally, in the locales of the United Nations 69
and other great powers. The government of the Serb entity in Bosnia has taken the constitutional struggle outside of Bosnia and Herzegovina, complaining to the UN Security Council that the Office of High Representative endangers prospects for political stabilization and the rule of law. Conversely, other domestic actors, such as Bosniak political parties, have invited international ‘referees’ (i.e. the Office of the High Representative) to continue their participation in the agon, and remain in Bosnia as a 70
state-­‐builder, setting it irrevocably toward integration into EU-­‐NATO structures. If the field of the struggle—the territory—is accepted in Bosnia and Herzegovina, it is not because of its normative salience. Rather, what “pins down the constituency,” to use Christodoulidis’ term, is nothing but a recognition of geopolitical fiat –that is, the power differential that makes challenging territory practically unfeasible, if not normatively unjustified. Unlike constitutional patriotism, which inadvertently leads us to neglect the larger context of geo-­‐constitutional struggle, unencumbered agonism enlarges our political vision, and may, one can hope, make political struggle in deeply divided states more self-­‐
aware, and by implication, more prudent. However, there is an underlying assumption in agonism that should be made more explicit. If the political struggle that challenges the inherited territorial frame is to be considered legitimate, and if the demands of political qua ethnocultural justice are inadequate as a reliable guide, as I have argued above, then under-­‐articulated political desires for greater autonomy, even secession, enjoy prima facie legitimacy. In other words, unencumbered agonism, to be a legitimate stylization of constitutional politics in deeply divided states, must go hand in hand with what I would provisionally label here as “democratic 71
reductionism.” Demands for greater autonomy must be engaged not because they are 69
Second Report of Republika Srpska to the United Nations Security Council on the Situation in Bosnia and Herzegovina, 2219/09 (2009).
70
“Sulejman Tihić repeated the position of SDA that the OHR has to stay in Bosnia and Herzegovina until it is … capable to function independently and fulfill its obligations on the road towards the full membership in NATO and the EU.” [translation mine] Official Website, PARTY OF DEMOCRATIC ACTION, available at http://www.sda.ba/vijest.php?id=626 (last accessed: 23 December 2011). 71
I won’t elaborate further on the idea of ‘democratic reductionism’ in this article. However, I will remark that support for it may come from diverse political and legal traditions. Hans Kelsen, a legal positivist, known cosmopolitan and a pacifist, argued for the satisfaction of national demands wherever possible. See for example, HANS KELSEN, LAW AND PEACE IN INTERNATIONAL RELATIONS, THE OLIVER WENDELL HOLMES LECTURES, 1940-­‐41, 141, 163 (1948). From within a liberal tradition, on the other hand, Richard Flathman constructs the concept of ‘willful liberalism’ that embraces the legitimacy of under-­‐argued, opaque political desires. See RICHARD FLATHMAN, WILLFUL LIBERALISM: VOLUNTARISM AND INDIVIDUALITY IN POLITICAL THEORY AND PRACTICE (1992). Finally—and more directly 2012] From Constitutional Patriotism to Unencumbered A gonism 47
deserved (recall, from the perspective of ethnocultural justice we cannot reliably gauge what different ethnonational groups actually “deserve”), but because they are willed, and yet at the same time are themselves willing to engage the interests of the other side.
By naming the implicit imperative to satisfy autonomist political desires “democratic reductionism,” I also highlight a tension in Tully’s account. On the one hand, Tully demands that challengers to an existing constitutional arrangement “present reasons for why 72
current forms of recognition are unacceptable.” Equally, he asks that “dissenters remain attached to their democratic society” because they know that their loss is temporary. Finally, Tully posits the principle ‘quod omnes tangit’—what concerns all should be approved by all—at the centre of constitutional agonism.
On the other hand, Tully claims that demands for greater autonomy must be accommodated, such that the desirable tendency of the constitutional agon should be toward satisfaction of autonomist demands, even if there is no wider consensus. As long as there is internal consensus within the minority itself he writes, “it is not necessary for the 73
final decision to be made by a majority or by a consensus of all affected.” Tully argues that letting the majority decide would be ‘unfair,’ and that asking for consensus would be ‘utopian.’ But, by judging a certain decision to be ‘unfair’ isn’t Tully in fact smuggling in an idea of what justice requires in deeply divided states? If my earlier argument about the problematic usefulness of the idea of ethnocultural justice is persuasive, I think that the only way to justify agonism is by positing democratic reductionism as its animating principle. Respecting nude democratic desires is precisely the spirit of the Canadian Secession Reference, a judgment that figures prominently in Tully’s account. The Supreme Court of Canada didn’t ask Québécois to ‘explain themselves,’ to answer why exactly do they need secession, or what they plan to do with their independence. Instead, the Court posited prima facie, a priori legitimacy of secessionist pursuits, demanding that participants in the federation negotiate in good faith—not over secession, but over its terms. At this point, I would like to offer three qualifications. The first anticipates an objection to my putative permissiveness toward political radicalism. I do not believe that democratic reductionism is a royal road to extreme nationalism. To the contrary, the prima facie legitimacy of democratic desires for greater autonomy is not anchored in any pre-­‐packaged concept that may be complicit in categorical agendas, such as popular sovereignty or self-­‐
determination. Democratic reductionism, I would argue, does not create a legal and relevant to the project—there are theories of secession that build on the idea of individual autonomy to justify reconfiguration of political boundaries. See generally CHRISTOPHER WELLMAN, A THEORY OF SECESSION (2005).
72
73
TULLY, supra note 52, at 212. Id. at 177.
48 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
political entitlement. Rather, it legitimizes a radical aspiration, and indicates the direction in which political negotiations should be moving. In fact, unencumbered agonism shares in 74
constitutional patriotism’s desire to ‘make affect safe for democracy.’ But it does so not by concocting an affective and intellectual attachment to a constitution, or by imploring citizens to be ‘reasonable’, but rather by airing those radical desires and subjecting them 75
to prudential yardsticks of viability and mitigation of violence. In such a way, those radicals will not, as Honig complains in the case of constitutional patriotism, be minoritized into silence and aggression, but will be given a genuine opportunity to ‘discharge’ their 76
resentment. Having said this, allow me to clarify: by remaining open to nationalist agendas, unencumbered agonism does not retreat into prescribing homogenizing national(ist) polities, not even in the form of liberal nationalism. What emerges out of constitutional struggle may not be separate nationalist mini-­‐states, but actually a renewed awareness of being ‘stuck together’ by the realistic impossibility to extricate oneself from 77
the common constitutional framework.
Second, I do not claim that participants in political struggles will not invoke the tropes of justice, fairness and expediency. While following Tully, I would like to also clarify that those claims are parasitical upon the deep structure of constitutional agon. In a sense the metaphor of agon is actually quite fitting: constitutional politics is not, and cannot be, a political theory seminar injected with concerns of ethnocultural justice, but rather something akin to ‘constitutional’ jiu-­‐jitsu. Wrong footing, causing paralysis in the political system, taunting and throwing off balance (and thus delegitimizing), is the true content of an agonistic repertoire, and not pursuit of normative consensus. “Eristic,” “permanent provocation,” and even “occasional rebellion” are, as Tully rightly notes, inescapable 78
features of constitutional agonism. If compromise emerges, it emerges not out of a sense of what justice requires, but rather as a result of a political war of attrition, where compromise arrives either as a result of fatigue, or out of surrender to a political calculus of violence. 74
Theorists of agonism are generally keen to distinguish themselves from more rabid nationalists. Agonism, for Chantal Mouffe, for example, is a progressive step away from ant-­‐agonism, implicit in nationalist sectarian struggles. See CHANTAL MOUFFE, THE RETURN OF THE POLITICAL 117, 133 (2005).
75
Responding to speculation about a potential decision about holding a referendum on secession of Republika Srpska, Bosnian Serb politician Nikola Špirić, currently the Bosnian prime minister, said: “What would such a referendum mean anyway, if nobody recognized it?” RADIOTELEVIZIJA SRBIJE (Jan. 20, 2010), available at: www.rts.rs (last accessed: 23 December 2011). 76
TULLY, supra note 52, at 181, 183.
77
For an interesting neo-­‐republican articulation of a community of fate, a community of individuals connected not through normative ideals but rather by a simple fact of being ‘stuck’ together, see HERMAN R. VAN GUNSTEREN, A THEORY OF CITIZENSHIP: ORGANIZING PLURALITY IN CONTEMPORARY DEMOCRACIES (1998).
78
Id. at 147, 163.
2012] From Constitutional Patriotism to Unencumbered A gonism 49
Third, while I argue that democratic reductionism enjoys prima facie legitimacy, engaging the important deep-­‐structure aspiration of constitutional patriotism is inevitable. If unencumbered agonism doesn’t share constitutional patriotism’s “fondness for 79
deliberation, for error-­‐correction mechanisms,” it still acknowledges the importance of the not-­‐so-­‐explicit aspiration highlighted in the preceding discussion of Habermas and Müller: “widening circles of inclusion.” If participants in unencumbered agon understand that the field of constitutional struggle is wider than the territorial boundaries of a state, then they also understand that the fortunes of those who make radical demands on the status quo will improve if they align themselves with a project of social inclusion. But doesn’t this acknowledgment immediately discredit any radical political movement that seeks to achieve greater autonomy, or even separation? Not necessarily. In fact, explicitly stating this ideal will bring more honesty to political life than a strategic invocation of constitutional patriotism, irrespective from which side it comes. For example, if Bosniak political and intellectual elites claim a commitment to the ideal of pan-­‐Bosnian social inclusion, as opposed to morally vacuous and dangerous pursuits of political autonomy on behalf of Croatians and Serbs, then, in principle, they should have nothing against enlarging the scope of social inclusion, not only to encompass Bosnia as a whole, but also to include a wider political, neo-­‐Yugoslav unit comprising Bosnia, Croatia and Serbia. The fact that these are three formally independent countries cannot weigh against the principled invocation of what is essentially a moral aspiration. Equally, if Bosnian Serbs pursued their autonomist demands, they would need to find innovative rhetorical strategies to offset claims that this would diminish overall social inclusion. They would need either to link their consent to deeper intra-­‐Bosnian integration with demands for wider, regional Yugoslav integration, or to show how a political reconfiguration of boundaries that would serve their interests, does not ultimately violate the principle of 80
social inclusion. Whether this latter tack is possible remains an open question. In any event, unencumbered agonism intersects with constitutional patriotism in that it is, irrespective of the assumption of democratic reductionism, “open to more encompassing 81
units.” Unlike constitutional patriotism, however, it allows for testing of the sincerity of 79
Sołtan, supra note 34, at 99.
80
One argument could be that even if the scope of territorial solidarity would diminish, it would be offset by the larger involvement of the nascent polity in providing international aid. Pre-­‐empting the objection of selfishness seems to animate the position of the Scottish National Party, which advocates the secession of Scotland from the United Kingdom. The SNP International Development spokesperson has, for example, claimed that “SNP share[s] [the] ambition and look to the example of other small nations such as the Norwegians, the Irish and the Danes who punch way above their weight in making a positive contribution. “It’s Time for a Say on International Aid,” THE SCOTTISH NATIONAL PARTY OFFICIAL WEBSITE (Mar. 27, 2007), available at: http://www.snp.org/press-­‐
releases/2006/it2019s-­‐time-­‐for-­‐a-­‐say-­‐an-­‐international aid/view?searchterm=international (last accessed: 23 December 2011) [emphasis added].
81
Sołtan, supra note 34, at 98.
50 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
‘patriotic’ claims for ever-­‐increasing social inclusion. E. Conclusion Through cataloguing existing defenses of constitutional patriotism, exploring new potential avenues, and noting its retrenching moves, the first aim of this article was to counsel a renewed vigilance against constitutional patriotism in the context of deeply divided states. I argued that constitutional patriotism is, by and large, incapable of responding to the question that logically precedes the constitution of political institutions: the constitution of territory. Though this is increasingly understood among constitutional patriots, my lateral argument was that there may be a theoretically sound way to justify constitutional patriotism, even when it is confronted with the territorial challenge. Instead of trying to construct normative arguments, or conceptual devices that would paper over initial arbitrary territorial inclusion, constitutional patriots might posit a virtuous character, as an axiomatic starting point: a meek constitutional patriot who, by definition, would not hold a grudge against arbitrary inclusion in an undesired political community. While such an approach is theoretically not unattractive, I proceeded in the opposite direction. Engaging with the work of James Tully, I proposed a more fitting theory for deeply divided states such as Bosnia and Herzegovina. Following Tully, I called that approach unencumbered agonism; a constitutional theory that focuses on the inescapable struggle over all aspects of constitutional existence—including territory. Finally, I argued that while constitutional patriotism and unencumbered agonism are theoretical opposites, they may productively intersect. Those who participate in the constitutional agon in the name of more autonomy, will still need to confront the ideal implicit in constitutional patriotism: to enlarge, and not to diminish levels of social inclusion and solidarity.
Articles Procedural Rules for the Implementation of the OECD Guidelines for Multinational Enterprises – a Public International Law Perspective By Christian Schliemann* A. Introduction Since the 1990s it is possible to witness, in the multiplication of inter-­‐ and transnational actors, an increasing diversity in international norm-­‐making processes as well as a growing variation in enforcing these norms, generically labeled under the term “global 1
governance.” The actions of these private, hybrid or intergovernmental actors on the global level are increasingly seen as equivalent to the exercise of political authority 2
formerly reserved for the state. As in the domestic context, the exercise of such authority raises questions about the procedural guarantees that anyone affected by this action should enjoy. The Organization for Economic Cooperation and Development (OECD) has evaded intensive scholarly attention from the global governance perspective thus far, although by now it is evident that it strongly contributes to this phenomenon through its 3
various activities. The OECD Guidelines for Multinational Enterprises (Guidelines) are but one area in which the OECD is said to assume global governance functions by strongly 4
influencing corporate behavior. Critique on the procedural aspects of the implementation *
Christian Schliemann Radbruch, Research Associate, SFB 700 Governance in Räumen begrenzter Staatlichkeit (Governance in Areas of Limited Statehood), Berlin, Germany. Email: [email protected]­‐berlin.de. 1
KARSTEN NOWROT, Global Governance and International Law, 33 BEITRÄGE ZUM TRANSNATIONALEN WIRTSCHAFTSRECHT (BTW) 1, 5-­‐12 (2004). 2
STEVEN WHEATLEY, Democratic governance beyond the state: the legitimacy of non-­‐state actors as standard setters, in NON-­‐STATE ACTORS AS STANDARD SETTERS 215, 220 (Anne Peters et. al. eds., 2009). 3
See the contributions in: RIANNE MAHONE & STEPHEN MCBRIDE, THE OECD AND TRANSNATIONAL GOVERNANCE (2008); Anne-­‐Marie Slaughter, Global Government Networks, Global Information Agencies, and Disaggregated Democracy, 24 MICH. J. INT'L L. 1041, 1050 (2002-­‐2003); Heather Bowman, If I Had a Hammer: The OECD Guidelines for Multinational Enterprises as Another Tool to Protect Indigenous Rights to Land, 15 PAC. RIM L. & POL'Y J. 703, 709 (2006); JAMES SALZMAN, Decentralized administrative law in the Organization for Economic Cooperation and Development, 68 LAW & CONTEMP. PROB.189 (2005). 4
Donald J. Johnston, Promoting Corporate Responsibility: The OECD Guidelines for Multinational Enterprises, in CORPORATE SOCIAL RESPONSIBILITY: THE CORPORATE GOVERNANCE OF THE 21ST CENTURY 243, 247, 250 (Ramon Mullerat ed. 2005); Gefion Schuler, Effective Governance through Decentralized Soft Implementation: The OECD Guidelines for Multinational Enterprises, 9 GERM. L. J. 1753, 1755-­‐1756 (2008). 52 G e r m a n L a w J o u r n a l 5
[Vol. 13 No. 01
th
is widespread in the literature. On 25 May 2011, as part of the 50 anniversary of the OECD deliberations on an update of the Guidelines, an adoption of a new version of the 6
Guidelines took place. The present article makes use of this historic moment in order to analyze whether the implementation procedures of the Guidelines legally reflect its categorization as an example for the exercise of public authority on the international level. In a first section the content and legal nature of the Guidelines as well as its implementation procedures are described (B), followed by an analysis of public international law rules regulating the exercise of public authority by International Organizations (IO). This section will show that binding principles already exist, that others are currently emerging, and that the principles on the accountability of IOs elaborated by the International Law Association (ILA) present the most valuable combination of these principles de lege lata and de lege ferenda (C). The third part applies the relevant standards to the implementation mechanisms of the Guidelines (D) before the article is closed by summarizing the performance of the OECD in this regard (E). B. Content, Implementation and Legal Nature of the Guidelines I. Elaboration, Content and Implementation of the Guidelines The OECD Guidelines were created in 1976, within the first wave of international 7
regulation on corporate behavior in the mid 1970s. The Guidelines were adopted by the OECD Council, within the broader framework of the OECD Declaration on International Investment and Multinational Enterprises, as governments’ recommendations that directly 8
addressed the business society. “They provide voluntary principles and standards for 9
responsible business conduct consistent with applicable laws.” 5
See Section D of this article. 6
See OECD, OECD Guidelines for Multinational Enterprises – Recommendations for Responsible Business Conduct in a Global Context [hereinafter “OECD Guidelines”] (2011), available at: http://www.oecd.org/document/28/0,3746,en_2649_34889_2397532_1_1_1_1,00.html (last accessed: 23 December 2011). 7
Other regulation attempts include the UN Resolution on Measures Against Corrupt Practices of Transnational and Other Corporations, their Intermediaries and Others Involved, UN G.A. Res. 3514 (XXX) of 15 December 1975 and the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, available at: http://www.ilo.org/empent/Publications/WCMS_094386/lang-­‐-­‐en/index.htm (last accessed: 23 December 2011). 8
OECD Guidelines, supra note 6, Preface at para. 1. 9
Id. at Preface at para. 1(2). 2012] OECD G uidelines’ E nterprises Implementation for Multinational 53
10
Regarding the substance of the Guidelines, they are divided into eleven parts dedicated to concepts and principles, general policies, disclosure, a newly included chapter on human rights, employment and industrial relations, environment, combating bribery, consumer interests, science and technology, competition and taxation. Several of these parts refer 11
explicitly or implicitly to other norms of an international character, which strengthens their acceptance as a global standard. The provisions on employment and industrial relations for example, have as their base the ILO norms on the same subject matter, although some authors have highlighted various differences and deviations within the 12
different legal regimes. The same holds true for the environment chapter, or the part on 13
combating bribery that largely draws on other international instruments in the field. Also, the newly adopted chapter on human rights now specifies the human rights instruments 14
that are to be respected. The implementation procedures are laid down in a binding decision of the OECD Council and in an attached procedural guidance. The Investment Committee (IC), the OECD organ responsible for the implementation and interpretation of the Guidelines was to take due account of this guidance in fulfilling its responsibilities for the effective functioning of the 15
Guidelines. The IC itself also issued a commentary to the norms on the implementation procedure, which are not part of the Council Decision, but an authoritative statement for 16
the National Contact Points (NCP) as sub-­‐organs of the IC. The Council decision obliges 10
For an assessment of the quality of the update as concerns the substantial aspects see OECD Watch Statement on the Update of the OECD Guidelines for MNEs – Improved Content and Scope, but Procedural Shortcomings Remain (2011), available at: http://oecdwatch.org/publications-­‐en/Publication_3675 (last accessed: 23 December 2011). 11
Implicit reference means an elucidation of the Guideline provisions within the commentaries issued by the Investment Committee or in the preface of the Guidelines; OECD Guidelines, supra note 6, Commentary on Chapter IV Human Rights, at para. 39; Preface of the Guidelines, supra note 6, at para. 8. 12
REINGARD ZIMMER, SOZIALE MINDESTSTANDARDS UND IHRE DURCHSETZUNGSMECHANISMEN -­‐ SICHERUNG INTERNATIONALER MINDESTSTANDARDS DURCH VERHALTENSKODIZES? (Social Minimum Standards And Their Enforcement Mechanisms –
International Assurance, Minimum Standards Of Conduct?) 86-­‐90 (2008). 13
Concerning the environment see Michael Klinkenberg, Die Leitsätze der OECD für multinationale Unternehmen -­‐ ein Vorbild für die neue Welthandelsrunde? (The OECD guidelines for multinational enterprises -­‐ a model for the newworld trade round?), 101 ZEITSCHRIFT FÜR VERGLEICHENDE RECHTSWISSENSCHAFT (ZVR) 421, 424-­‐426 (2002). 14
The commentary mentions the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the 1998 International Labor Organization Declaration on Fundamental Principles and Rights at Work, UN instruments on the rights of indigenous peoples; persons belonging to national or ethnic, religious or linguistic minorities; women; children; persons with disabilities; and migrant workers and their families as well as the standards of international humanitarian law; OECD Guidelines, supra note 6, Commentary on Chapter IV Human Rights at para. 39. 15
16
OECD Guidelines— Council Decision, supra note 6, at Part. I, National Contact Points 6. All three documents are contained in the updated version of the Guidelines: Commentary on the Implementation Procedures, supra note 6, at 77-­‐89. 54 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
member states to set up NCPs responsible for promotional activities, handling of enquiries and the resolution of issues that arise relating to the implementation of the Guidelines in 17
specific instances, in order to further the effectiveness of the Guidelines. The organization of the NCPs follows the idea of functional equivalence and of granting flexibility to the adhering countries, as long as they act within the framework of the 18
fundamental principles of visibility, accessibility, transparency and accountability. An NCP may be a senior government official or a government office headed by a senior official. Alternatively, the National Contact Point may be organized as a cooperative body, including representatives of other government agencies. Representatives of the business 19
community, employee organizations and other interested parties may also be included. Although the number of those NCPs that involve other actors increased in the last 10 years, the vast majority still consists of only government officials. However, the absence of formal inclusion of civil society representatives does not necessarily mean that they are not consulted at all, as many of the government NCPs do involve them on a regular but 20
informal base. Besides the promotional tasks, the NCP’s major function is the handling of specific instances of alleged violations of the Guidelines by MNEs. The NCP will offer a forum for discussion and assist the business community, employee organizations and other parties concerned in dealing with the instances raised in an efficient and timely manner and in 21
accordance with applicable law. An instance can be instigated by anyone who suspects a violation of the Guidelines, including civil society organizations. Once an issue has been raised, the NCP will assess whether it merits further examination. If this is the case, the “good offices” phase begins, and the NCP will consult the parties, and where relevant, will inter alia offer and – with the agreement of the parties involved— facilitate access to consensual and non-­‐adversarial means such as conciliation or mediation to assist in 22
resolving the issues. In case an agreement is obtained, the NCP shall issue a report 17
OECD Guidelines, supra note 6, at Part I OECD Council Decision, National Contact Points 1. 18
OECD Guidelines, supra note 6, at Part I, Procedural Guidance— National Contact Points. 19
Id. at A.2. In 2009 17 NCP were organized as single government departments, 11 organized as multiple government departments, 1 bipartite NCP, 9 tripartite NCP’s, one quadripartite NCP and one mixed structure of independent experts and governmental representatives, See for detailed information on each NCP: Chair of the Meeting on the Activities of National Contact Points, Summary Report 4 (2009), http://www.oecd.org/dataoecd/41/25/43753441.pdf (last accessed: 23 December 2011). 20
Chair of the Meeting on the Activities of National Contact Points, Summary Report 3 (2001), available at: http://www.oecd.org/dataoecd/62/58/2438852.pdf (last accessed: 23 December 2011), e.g. the German “Arbeitskreis OECD Guidelines” involving civil society representatives. The Arbeitskreis delivers general information on current developments without however discussing concrete questions arising within specific instances. 21
OECD Guidelines—Procedural Guidance, supra note 6, at Part. I. C, Implementation in Specific Instances. 22
Id. at 2(d). 2012] OECD G uidelines’ E nterprises Implementation for Multinational 55
containing a description of the issues raised, the procedures the NCP initiated and the date 23
of the agreement. If the parties involved do not reach an agreement, the NCP will issue a statement and make the appropriate recommendations for the implementation of the 24
Guidelines. The next level of implementation is carried out by the IC, which carries out a coordinating role for the Guidelines as well as a supervisory function. As a major competence, the IC is required to consider any substantiated submission by an adhering country, an advisory body or, as of 2011, by OECD Watch, on whether an NCP is fulfilling its responsibilities with regard to its handling of a specific instance, or with regard to the correctness of an NCP’s 25
interpretation of the Guidelines. Advisory bodies of the OECD that are relevant in the field of the Guidelines are the Business and Industry Advisory Committee (BIAC), and the 26
Trade Union Advisory Committee (TUAC). II. Legal Nature of the Guidelines The Guidelines are not a treaty in the sense of Art. 38 lit. (a) of the ICJ Statute. Moreover, they have not yet clearly developed into customary international law, although this is 27
tentatively advocated in the literature. They are thus soft-­‐law and their application should not be subject to any concerns on procedural legitimacy for their lack of binding force and direct effect. Given the unsatisfactory character of this generic doctrinal classification, more constructive theoretical approaches do classify OECD activities in the realm of the Guidelines as legally relevant. From an economic and system-­‐theory based approach, the Guidelines are said to clearly develop into a complex of norms displaying characteristics of a legal system, lacking only the necessary second order observation 28
mechanisms. The OECD and its Guidelines are also examined as part of the category of 23
Id. at 3(b). 24
Id. at 3(c). 25
Id. at Part. II, Investment Committee, 2. (a), (b) and (c). 26
Both committees are independent umbrella organizations consisting of either domestic business organizations or domestic trade unions that have a consultative status with the OECD and its committees. For more information see http://www.tuac.org/en/public/index.phtml (last accessed: 23 December 2011) and www.biac.org/ (last accessed: 23 December 2011) at 31. 27
Yann Queinnec, The OECD Guidelines for Multinational Enterprises -­‐ an Evolving Legal Status, available at: http://asso-­‐sherpa.org/sherpa-­‐
content/docs/programmes/GDH/Soft_law/Principes_directeurs_de_l_OCDE_Un_statut_juridique_en_mutation.p
df (last accessed: 23 December 2011). Queinnec argues that the core rules of the CSR norm complex have acquired customary international law status. As part of this process also, the Guidelines are partially acquiring customary international law status. 28
Gralf P. Calliess & Moritz Renner, Between Law and Social Norms: The Evolution of Global Governance, 22 RATIO IURIS (RJ) 260, 276 (2009). 56 [Vol. 13 No. 01
G e r m a n L a w J o u r n a l 29
international actors exercising international public authority, and within the focus of the 30
Global Administrative Law approach. The latter approaches analyze inter-­‐ and transnational actors that assume legal roles that were in the past, with some rare exceptions only attributed to the state in the domestic context. The public law approach 31
articulated by Bogdandy et. al. is particularly useful here. They claim that a measure displays international public authority when it unilaterally shapes the legal or factual situation of a person, independent of whether the measure is binding or not. It is international when it is based on a competence instituted by an international act 32
(dependent on the authors of a measure), and public when it serves a public interest. If the Guidelines meet these criteria, their implementation is an exercise of international public authority, making a claim to procedural guarantees perfectly convincing. Starting in reverse order, the determination of the public interest is carried out by reliance on a 33
topical catalogue based on typical instances. Following a more theoretical approach, elaborated in the research on governance in areas of limited statehood, assessing the public character of any measure depends on whether it serves equivalent aims as the state. Measures aimed at the establishment of security, of the security of expectations, of collectively binding decisions, the implementation of those decisions, the limitation of power, the participation in power, economic stability, infrastructure, basic social insurance, public health, education, and securing natural living conditions are then considered as 34
functionally equivalent. Among those aims the Guidelines contribute at least to economic 35
stability, infrastructure as well as public health and securing natural living conditions. As concerning the second requirement, the Guidelines are an international act, as they are produced by the OECD, which in turn is based on the international Convention on Economic Cooperation and Development. As concerns the unilaterally exercised impact on the legal or factual situation of persons, various arguments can be made in order to attribute this quality to the OECD. 29
Armin von Bogdandy et. al., Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities, 9 GERM. L. J. 1375, 1381-­‐1386 (2008). For the OECD Guidelines for Multinational Enterprises see Schuler, supra note 4, at 1755. 30
Benedict Kingsbury et. al., The Emergence of Global Administrative Law, 68 LAW & CONTEMP. PROB. 15 (2005). For the application of this approach to the OECD including its Guidelines for Multinational Enterprises see Salzman, supra note 3. 31
von Bogdandy et. al., supra note 29, at 1381-­‐1386. 32
Id. at 1382-­‐1384. 33
Id. at 1384. 34
ANKE DRAUDE, HOW TO CAPTURE NON-­‐WESTERN FORMS OF GOVERNANCE -­‐ IN FAVOUR OF AN EQUIVALENCE FUNCTIONALIST OBSERVATION IN AREAS OF LIMITED STATEHOOD 12 (2007). 35
OECD Guidelines, supra note 6, at Preface, paras. 4 and 9; General Policies, paras. 1-­‐5. 2012] OECD G uidelines’ E nterprises Implementation for Multinational 57
First, it should be kept in mind that the Guidelines are referring, in large part, to already-­‐
existing international standards, of which some present binding law. Secondly, the granting of export credits or other financial support is tied increasingly to the observance of the Guidelines. The strongest linkage can be found in the Netherlands, requiring a declaration from companies that they are aware of the Guidelines and endeavor to comply with them to the best of their ability. In France, Finland, Germany, and Denmark, MNEs applying for and receiving state subsidies have to sign a clause that they are well aware (avoir pris connaissance) of the Guidelines. In many other countries, the Guidelines are at least 36
mentioned within the process of granting subsidies to enterprises. Taking into account this linkage, it is clear that the Guidelines are not simply voluntary when the enterprise 37
operates with the help of state subsidies. This linkage of different government agencies has been strengthened by the new version of the Guidelines, by including a paragraph in the Commentary of the IC indicating that NCPs are encouraged to inform other government agencies of their statements and reports when they are known by the NCP to 38
be relevant to a specific agency’s policies and programs. An acceptance of the legally binding force of the Guidelines can moreover be seen in the judicial proceedings in the US and in Germany, where public references to a company’s adherence to private codes of conduct were considered illegal as long as the companies 39
did not actually comply with these norms. Certainly, on this legal track, companies cannot be obliged to comply with a specific code of conduct, but whenever they use it as reputational means, are required to adhere to them. As companies strive for a public image in accordance with the demands of corporate social responsibility by way of private codes, they are trapped by the legal regime of commercial speech. There is no difference in using private codes of conduct, or the OECD Guidelines as regards the requirements established by the national courts. It is even argued that this kind of recognition in commercial speech cases contributes to the genesis of customary international law for 40
MNEs. 36
See for an overview of the different models of linkage: Annual Report of IC 21-­‐22 (2010), http://www.oecd.org/document/24/0,3746,en_2649_34889_46530712_1_1_1_1,00.html (last accessed: 23 December 2011). 37
On a possible race to the bottom generated by these different national policies see Mathias Ulbrich, Enforcing Core Labour Rights through the OECD-­‐Guidelines for Multinational Enterprises? Reflections on the Guidelines' Conciliation Process and the Current Linkage Discussion, 18 ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES ARBEITSRECHT (ZAIA) 366, 379 (2004). 38
Commentary of the Investment Committee, supra note 6, at Section I Conclusion of Procedures, at para. 7. 39
On the American case, see Gregory T. Euteneier, Towards a Corporate "Law of Nations": Multinational Enterprises' Contributions to Customary International Law, 82 TUL. L. REV. 757, 773-­‐774 (2007); On the German case, see Miriam Saage-­‐Maaß & Anna von Gall, Fairer Wettbewerb Weltweit! Am Beispiel der "Lidl-­‐Klage," (Fairer Competition Worldwide: Using the Example of the “Lidl” Action) 4 Gegenblende (2010), available at: http://www.gegenblende.de/04-­‐2010 (last accessed: 23 December 2011). 40
Euteneier, supra note 39, at 777. 58 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
Fourth, the compliance pull is fostered through cooperation between the OECD and other organizations. The Global Reporting Initiative (GRI) developed its sustainability reporting framework, of which a due diligence procedure to avoid human rights violations is a 41
relevant part. A specific mention of the OECD Guidelines is not yet included. However, the OECD and GRI signed a Memorandum of Understanding dedicated to mutual cooperation in the next three years, in order to make use of the synergies between the 42
two instruments. In the same vein, the understanding between the OECD and the International Organization for Standardization (ISO) concluded in 2008 ensures that the 43
ISO Standards on social responsibility take into account and reflect the OECD principles. Both liaisons strengthen the regular commitment to the Guidelines by raising their presence in internal company decisions and their external monitoring. Fifth, the United Nations Security Council applied the Guidelines through the work of the Security Council’s Panel of Experts on the Illegal Exploitation of Natural Resources and other forms of wealth in the Democratic Republic of the Congo. Although the Panel clearly states in its reports that the Guidelines confer only a moral constraint on states, the Guidelines are used as a benchmark in order to establish whether a company is acting in 44
conformity with international rules. The Panel has referred several cases to the NCPs of 45
the United Kingdom, Belgium and Germany, and the Security Council has endorsed this action in its resolutions and explicitly requested the transmission of relevant information 41
Global Reporting Initiative, Sustainability Reporting Guidelines 32-­‐38, available at: https://www.globalreporting.org/resourcelibrary/G3.1-­‐Guidelines-­‐Incl-­‐Technical-­‐Protocol.pdf (last accessed: 23 December 2011); More specifically on human rights reporting in the GRI framework, see A Resource Guide to Corporate Human Rights Reporting, available at: https://www.globalreporting.org/reporting/latest-­‐guidelines/g3-­‐
1-­‐guidelines/Pages/Human-­‐Rights-­‐and-­‐Reporting.aspx (last accessed: 23 December 2011). 42
See Press Release, OECD (2010), available at: http://www.oecd.org/document/23/0,3746,en_2649_34889_46674519_1_1_1_1,00.html (last accessed: 23 December 2011); Johnston refers to a document elaborating specifically on the linkage between GRI reporting obligations and the OECD Guidelines, which was however not retrievable from the GRI website. Johnston, supra note 4, at 250. 43
Annual Report of IC 127-­‐130 (2008), available at: http://www.oecd.org/document/39/0,3746,en_2649_34889_42416807_1_1_1_1,00.html (last accessed: 23 December 2011). 44
The Annexes of the First Report distinguish between different groups of companies. Annex three lists those companies that are considered to have violated the Guidelines. See the Final Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo, UN Doc. S/2002/1146, Annex III (2002), at paras. 170-­‐178. 45
Final Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of Congo (Second report), UN Doc. S/2003/1027, Annexes (2003). 2012] OECD G uidelines’ E nterprises Implementation for Multinational 59
46
to the IC, in order to bring about procedures concerning the violation of the Guidelines. It has been noted in the literature that this practice of the Panel as an indirect effect of SC 47
activities amounts to the application of the OECD Guidelines as a global standard. A last argument for the legal nature of the Guidelines is the binding ability of the implementation process itself. As a result of the compulsory specific instance procedure, the parties agree upon the concrete measures to be adopted by the companies. These include for example, the conclusion of collective bargaining treaties, the elaboration of new social policies, or even the complete withdrawal from a certain country. Equally relevant are those cases in which concrete measures cannot be reached during mediation and particularly if the submission of a specific instance is rejected by the NCP. Both cases become existential for the alleged victims of corporate human rights abuses in situations where the OECD implementation is substituted for national procedures, as in the case of weak governance zones. In the risk awareness tool on weak governance zones produced by 48
the IC and adopted by the Council of Ministers, these areas are defined as “investment environments in which public sector actors are unable or unwilling to assume their roles and responsibilities in protecting rights (including property rights), providing basic public services (e.g. social programs, infrastructure development, law enforcement and prudential 49
surveillance) and ensuring that public sector management is efficient and effective.” This situation can be of an absolute or partial nature, and either in a territorial or a 50
substantial sense. In these cases the norms of the OECD and their implementation can be considered a substitute for the national laws as well as for the institutions normally competent and responsible for deciding those issues. In fact, they might be the only norms 51
applicable, and the only remedies available to the societies of these countries. As a 46
See SC Res. 1457 of 24 January 2003, at para. 13; Carrying out effective pressure on the relevant actors exploiting the natural resources of the Democratic Republic of Congo was requested after highlighting the report of the Panel of Experts also in SC Res. 1533 of 12 March 2004, at para.6. 47
Ole Kristian Fauchild & Jo Stigen, Corporate Responsibility before international institutions, 40 GEO. WASH. INT'L L. REV. 1025, 1070 (2010). 48
OECD Risk Awareness Tool for Multinational Enterprises in Weak Governance Zones, avahttp://www.oecd.org/document/26/0,3746,en_2649_34889_36899994_1_1_1_1,00.html (last accessed: 23 December 2011); Also the recently adopted OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-­‐Affected and High-­‐Risk Areas can be seen in this context, as conflict usually goes along with a deterioration of the ability to maintain a functioning public order, available at: http://www.oecd.org/document/36/0,3746,en_2649_34889_44307940_1_1_1_1,00.html (last accessed: 23 December 2011). 49
OECD Risk Awareness Tool, supra note 48, at Appendix I, Glossary, “weak governance zones,” 42. 50
THOMAS RISSE, REGIEREN IN RÄUMEN BEGRENZTER STAATLICHKEIT. ZUR "REISEFÄHIGKEIT" DES GOVERNANCE-­‐KONZEPTES (Governance Areas of Limited Statehood: The “Journey’s Ability” Concept of Governance) 10 (2007). 51
The special situation in weak governance zones was highlighted in several instances handled by NCPs. See, the Final Statement of the French NCP, Nam Theun II Dam, Annual Report of IC 72-­‐73 (2005), available at: http://www.oecd.org/document/45/0,3746,en_2649_34889_35845165_1_1_1_1,00.html (last accessed: 23 60 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
recent example shows, the procedures are indeed perceived as a substitute to legal proceedings aimed at the stabilization of the legal relationship between the conflicting 52
parties even outside the context of weak governance zones. In sum, the Guidelines are an international act that serve a public interest and impact legally and factually on MNE conduct, and the rights and freedoms of individuals. These effects are intensified in weak governance zones through their function as a substitute for lacking national mechanisms. The Guidelines’ implementation presents an exercise of public authority on the international level. As in the domestic parallel, such exercise of authority should be subject to rules guaranteeing the basic procedural rights of the persons and groups affected. C. Public International Law Standards for Procedural Aspects of IO Activities The Report on the Accountability of International Organizations prepared by the 53
International Law Association in 2004 (ILA Report or Report) states that its principles are derived from two sources: (i) from primary rules of international and domestic law, and (ii) from the rules of the IO (particularly the constituent instrument, the decisions and resolutions adopted in accordance with the constituent instrument, and the established 54
practices of the Organization). In keeping with the legal character of the recommended rules and practices contained in the report, its authors acknowledge that, “Although many of the Recommended Rules Practices (RRP) reflect existing rules of international law, the Committee’s terms of reference did not preclude it from formulating rules constituting, to 55
a reasonable extent, progressive development.” Against the background of the OECD activities, in the context of MNE regulation, it is clear that not all of the principles have a 56
role to play. Only the standards elaborated within the category of good governance and December 2011); see also the Final Statement of the UK NCP, Afrimex and DAS Air, Annual Report of IC 31-­‐56 (2009) available at: http://www.oecd.org/document/12/0,3746,en_2649_34889_45381708_1_1_1_1,00.html (last accessed: 23 December 2011). 52
See Unilever and IUF Settlement concerning Lipton factory in Pakistan, Statement by IUF on the Settlement including information that all court petitions are withdrawn as part of the settlement, available at: http://www.iuf.org/cgi-­‐bin/dbman/db.cgi?db=default&uid=default&ID=6281&view_records=1&en=1 (last accessed: 23 December 2011). 53
International Law Association, Berlin Conference Final Report: Accountability of International Organizations (2004), available at: www.ila-­‐hq.org/en/committees/index.cfm/cid/9 (last accessed: 23 December 2011). 54
ILA Report, supra note 53, at 6. 55
ILA Report, supra note 53, at 6. 56
There are four categories of principles in the report: first level of accountability (internal and external scrutiny in general), principles on liability/responsibility of international organizations, secondary principles on responsibility of International Organizations, remedies against International Organizations, ILA Report, supra note 53, at 1-­‐3. 2012] OECD G uidelines’ E nterprises Implementation for Multinational 61
the principle concerning a right to an effective remedy are useful in the given context. In order to proceed with the analysis of the implementation of the Guidelines, it is necessary to evaluate the degree to which these standards are legitimately held to be applicable. This requires a classification of which principles of the ILA Report already enjoy binding status under public international law, and which principles reflect a progressive development of the law. In the latter case, it is necessary to examine whether the method employed to generate these emerging standards can be said to reflect current trends in international law, in order to convincingly argue for their present application to the OECD. I. Do Binding norms on procedural aspects of IO activities have an impact on individuals and entities? The International Court of Justice stated in its WHO Advisory Opinion that “[i]nternational Organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions 57
or under international agreements to which they are parties.” The category of constitutional rules is important, as some international organizations have specific rules in their founding instruments that prescribe how activities of the IO must be carried out, so as to satisfy some basic requirements of accountability, participation and 58
transparency. Only Article 12 of the Convention on the Organization for Economic Co-­‐
operation and Development refers to the participation of stakeholders other than states, 59
declaring that NGOs might be invited to participate in the activities of the Organization. The Convention remains silent, however, on issues of accountability or transparency applicable to the Organization in its entirety. The various Committees carrying out the work of the OECD therefore apply different rules concerning the inclusion of civil society, 60
the transparency of their activities or the available remedies against OECD action. It is precisely this poor internal standard that necessitates finding other rules that will require IOs to adopt more elaborate norms on its governance activities. These rules may be found in the “general rules of public international law” mentioned in the WHO Advisory Opinion. 57
Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion), ICJ Reports 73, 90 (1980). 58
These internal rules are analyzed in particular within the GAL approach. See for various GAL studies, www.iilj.org/gal/bibliography/default.asp (last accessed: 23 December 2011). 59
Art. 12 Convention on the Organization for Economic Co-­‐operation and Development, available at: http://www.oecd.org/document/7/0,3343,en_2649_201185_1915847_1_1_1_1,00.html (last accessed: 23 December 2011). 60
See for the historic development of the participation of Civil Society in the OECD, Richard Woodward, Towards Complex Multilateralism? Civil Society and the OECD, in THE OECD AND TRANSNATIONAL GOVERNANCE 77-­‐95 (Rianne Mahone & Stephen McBride eds., 2008). 62 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
This reference is commonly understood to include customary international law as well as 61
general principles of international law. As concerning Article 38 lit. (b) of the ICJ Statute, no customary rules directly regulating the exercise of international public authority by an IO are clearly established. There are however structural principles for the exercise of public authority in states, such as norms 62
for democratic governance, for good governance, as well as for the rule of law. The challenge with these norms is their application to international organizations which can only occur (i) if the laws already enjoy customary status; (ii) if the actions of International Organizations can be considered to be functionally equivalent to state activities for which the norms were originally developed, and (iii) the norms as such are, as relates to their content, transferable to IO activities. The first requirement is less difficult to fulfill in the context of a norm on democratic governance, at least in a limited sense of requiring progress towards democratic 63
governance, whereas it seems rather improbable to assume a customary norm on the 64
rule of law in a thick version. In a recent study prepared for the United Nations, 61
ILA Report, supra note 53, at 18; HENRY SCHERMERS & NIELS M. BLOKKER, INTERNATIONAL INSTITUTIONAL LAW 832-­‐835 (4th ed. 2003); August Reinisch, Governance Without Accountability?, 44 GERMAN YEARBOOK OF INTERNATIONAL LAW 270, 281-­‐282 (2001). 62
In general, see STEFAN KADELBACH & THOMAS KLEINLEIN, Überstaatliches Verfassungsrecht (National Constitutional Law), 44 ARCHIV DES VÖLKERRECHTS (AV) 235, 235-­‐266 (2006); For the principle of democratic governance, see Thomas D. Franck, The Emerging Right to Democratic Governance, 86 AM. J. INT'L L. 46, 46-­‐91 (1992); GREGORY H. FOX & BRAD R. ROTH, DEMOCRATIC GOVERNANCE AND INTERNATIONAL LAW (2000); NIELS PETERSEN, The Principle of Democratic Teleology in International Law, 34 BROOK. J. INT'L L. 33-­‐84, 334 (2008). For the rule of law, see Sir Arthur Watts, The International Rule of Law, GERMAN YEARBOOK OF INTERNATIONAL LAW 15, 15-­‐45 (1993); Simon Chesterman, An International Rule of Law?, 56 AM. J. COMP. L. 331, 331-­‐361 (2008); BRIAN Z. TAMANAHA, ON THE RULE OF LAW 127-­‐136 (2004). For the principle of good governance, see Beate Rudolf, Is "Good Governance" a Norm of International Law, in VÖLKERRECHT ALS WERTORDNUNG 1007-­‐1028 (Pierre-­‐Marie Dupuy, et. al. eds., 2006). 63
In this sense see PETERSEN, supra note 62, at 81-­‐83. The norm on democratic governance is emerging since Franck’s seminal article and opinions diverge on whether and in what shape it actually enjoys customary status. For support, see Gregory H. Fox, Internationalizing National Politics: Lessons for International Organizations, 13 WIDENER L. REVIEW 265, 266. Critique to this approach, see SUSAN MARKS, THE RIDDLE OF ALL CONSTITUTIONS (2000); Jackson Nyamuya Maogoto, Democratic Governance: an Emerging Customary Norm?, 55 UNIVERSITY OF NOTRE DAME AUSTRALIA LAW REVIEW 55, 55-­‐79 (2003); A regional analysis of this norm might lead to more concrete answers to this question. Steven Wheatley, Democracy in International Law: A European Perspective, 51 INT'L COMP. L. Q. 225, 246-­‐247 (2002); Christian Schliemann, Das Demokratiegebot in der Organisation Amerikanischer Staaten (The principle of democracy in the Organization of American States), 42 VERFASSUNG UND RECHT IN ÜBERSEE (VRU) 320, 344-­‐348 (2009). 64
In fact, the literature on the international rule of law is dedicated either to the study of the rule of law existent in domestic jurisdictions as a general principle and thus conferrable to the international legal system or to an international rule of law directly applicable to IOs. Both will become relevant in our context but not in this part of the article dedicated to the application of state centered customary norms to IOs, although some elements of the international rule of law are exploitable in the present context justifying the conclusion reached above. For the rule of law as general principle see Chesterman, supra note 62, at 340-­‐342.; Ernst-­‐Ulrich Petersmann, How to Promote the International Rule of Law? Contributions by the World Trade Organization Appellate Review System, 2012] OECD G uidelines’ E nterprises Implementation for Multinational 63
Fassbender argues however that some concrete elements of the rule of law might enjoy customary status— such as when the principle to be heard before an individual measure is taken, which would adversely affect the person’s rights and the right to an effective remedy— as these basic assumptions are contained in almost all human rights treaties and 65
internationally agreed upon human rights documents. According to the results of Fassbender’s study, the principle to provide an effective remedy requires that some form of remedy (political, legal, social) must be accessible in a timely manner leading to a 66
reasoned decision. This is supported by the ILA report, which clearly states that the right 67
to an effective remedy is a basic international human rights standard. 68
Also, a customary norm on good governance does not yet exist in its entirety. As with the rule of law, some elements of this norm might be of a customary nature, such as the accountability element derived from the human rights treaties envisaging the right to a 69
remedy comparable to that under the rule of law. As concerns the functional equivalence of IO measures, it was already shown that the 70
OECD exercises international public authority that must be considered equivalent. However, as regards the transferability of the norms, their content is still tailored to state action. They therefore have to be adapted to International Organizations, which differ from states in terms of the authors and character of a measure, their institutional structure, and ways and means of implementation. This adaptation is prone to problems 71
concerning a norm on democratic governance. Dahl has already formulated the question 72
of whether a democratic international organization might exist at all. Many questions remain unanswered. What collectivity or collectivities should participate in the democratic decision-­‐making of IOs? What are the concrete rights of these collectivities? Is there a 1 J. INT'L ECON. L. 25, 30-­‐31 (1998). Combining both approaches, see Watts, supra note 62, 17-­‐42.; David Dyzenhaus, The Rule of (Administrative) Law in International Law, 68 LAW & CONTEMP. PROBS. 127, 165-­‐166 (2005). For the international rule of law, see Mattias Kumm, International Law in National Courts: the International Rule of Law and the Limits of the Internationalist Model, 44 VA. J. INT'L L. 19, 22 (2003). 65
Bardo Fassbender, Targeted Sanctions Imposed by the UN Security Council and Due Process Rights, 3 INTERNATIONAL ORGANIZATIONS LAW REVIEW 437, 444, 447-­‐450, 464 (2006). 66
Id. at 480. 67
ILA Report, supra note 53, at 33. 68
Rudolf, supra note 62, at 1026. 69
Id. at 1015. 70
See the section on the Legal Nature of the Guidelines. 71
See Gregory H. Fox on the usefulness and problems in transposing the international norm on democratic governance on International Organizations, see FOX, supra note 63, at 269, 275-­‐276 (2007). 72
Robert A. Dahl, Can International Organizations be Democratic? A Skeptic's View, in DEMOCRACY'S EDGES 19 (Ian Shapiro & Casiano Hacker-­‐Cordón eds., 1999). 64 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
possibility of representation, and accordingly, how can the democratic legitimacy of the 73
representatives of civil society, such as NGOs, be assessed? The adaptation seems less problematic for the elements of the rule of law, such as a right to a remedy, and for the norms on good governance. The latter norms were developed for governance activities of 74
states. The change of label from good government to good governance is accompanied by the change of the underlying idea. It is not the classic state as a monolithic block that is envisaged to be regulated with these norms, but rather concrete intra-­‐state processes 75
targeted at achieving specific functional goals and engaging relevant stakeholders. These kinds of processes are also characteristic for the governance activities carried out by inter-­‐ 76
and transnational actors including international organizations , which might elucidate why also the ILA uses the term good governance as the category for the various emerging procedural principles on the institutional and operational decisions of an International 77
Organization. Thus, although customary norms on the domestic exercise of public authority are emerging, they have either not yet attained a reasonably certain degree of validity, or they are too state-­‐centered to be applied to international organizations. An exception is the right to an effective remedy that seemingly enjoys customary status, and which is, in 78
principle, also applicable to international organizations. The third set of principles that might contain procedural rules for activities of an IO finds its origin in Article. 38 lit. (c), the general principles of public international law. Although originally used to apply private law principles to a situation of equals, there is, as far as relations with a subordinating character can be found on the international level, no reason 79
not to transfer domestic public law principles to the international context. It is the rule of law that comes to the forefront here. Scholars assert that the rule of law can be found, at least in some of its elements or its underlying function or idea in the major legal systems of 73
For a proposal, see Anton Vedder, Towards a Defensible Conceptualization of the Legitimacy of NGOs, in NGO INVOLVEMENT IN INTERNATIONAL GOVERNANCE AND POLICY -­‐ SOURCES OF LEGITIMACY 197, at 210-­‐211 (Anton Vedder ed. 2007). 74
Rudolf, supra note 62, at 1009 et seq. 75
Hermann Hill, Good Governance -­‐ Konzepte und Kontexte, in GOVERNANCE-­‐FORSCHUNG 220-­‐223 (Gunnar Folke Schuppert ed. 2006). 76
James N. Rosenau, Governance, Order, and Change in World Politics, in GOVERNANCE WITHOUT GOVERNMENT: ORDER AND CHANGE IN WORLD POLITICS 1, 4-­‐7 (James N. Rosenau & Ernst-­‐Otto Czempiel eds., 1992). 77
ILA Report, supra note 53, at 8. 78
For the United Nations, see Fassbender, supra note 65, at 447. 79
Wolfgang Weiß, Allgemeine Rechtsgrundsätze des Völkerrechts (General principles of international law) 39 AV 394, 409 (2001); see for the application of General Principles in the context of international criminal law, Separate Opinion of Judges MacDonald and Vohrah, Prosecutor v. Drazen Erdemovic, ICTY Appeals Chamber, decision of 07 October 1997, reprinted in (1998) I.L.R., vol. 111, at 314, 344. 2012] OECD G uidelines’ E nterprises Implementation for Multinational 65
the world, and is thereby transferable to the international legal order as a general 80
principle. This is argued for the elements of the supremacy of the law and the equality of 81
subjects before the law. The direct application of these principles to IOs is, however, criticized. Even in case of a hierarchical relationship, the decisions of international organizations rarely have a direct effect on individuals, which is, unless shown to the 82
contrary, the regular case in the domestic context. Moreover, these principles are naturally abstract and their usefulness also suffers from a lack of legal certainty due to their imprecision. However, even without these empirically proven principles, there are some domestic legal principles that are claimed to be part of any legal order from a theoretical perspective. Any legal system claims by its nature that its subjects are bound by 83
its rules. The supremacy of the law is therefore held to be such a necessary principle. This legal statement is strongly supported by the ILA Report on Accountability of International 84
Organizations. As a conclusion, it might be argued that both the supremacy of the law and the right to have access to an effective remedy (legal, social, political) in a timely manner leading to a reasoned decision enjoy a binding force for International Organizations. II. Current proposals for the development of public international law standards on the exercise of international public authority? The classical sources of international law already offer principles for the analysis of IO activities drawn from domestic law principles and customary international law applicable to states. Nevertheless, criteria for the participation of civil society, their access to information, and general rules on oversight through and reporting to parent organs are still not given. Within academia, the widely known approaches of International Institutional Law (IIL) and Global Administrative Law (GAL) increasingly analyze internal norms and practices of IOs. Because of this focus on the proper norms and practices, they cannot be used to critically assess IO activities from a general legal point of view. The idea of constitutionalization proposes the existence of some hierarchically superior norms, but is restricted to finding these norms in customary international law and general principles. It thus leads to the same core human rights principles applicable to IOs without breaking 80
Chesterman, supra note 62, at 355, but critical as to a transfer of a thick version at 358; For the completeness and certainty of the law as a general principle, see Watts, supra note 62, at 25-­‐28; Fassbender, supra note 65, at 465; There is however doubt about this assumption, see Armin von Bogdandy, General Principles of International Public Authority: Sketching a Research Field, in THE EXERCISE OF PUBLIC AUTHORITY BY INTERNATIONAL INSTITUTIONS -­‐ ADVANCING INTERNATIONAL INSTITUTIONAL LAW 727, 735-­‐736 (Armin von Bogdandy ed. 2009). 81
Chesterman, supra note 62, at 342. 82
von Bogdandy, supra note 80, at 740. 83
Rudolf, supra note 62, at 1019. 84
ILA Report, supra note 53, at 13, 28. 66 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
more ground. Another recent attempt to remedy the lack of relevant norms is the public law approach mentioned above. It proposes starting from the constitution of the organizations and focusing on the principles that are existent in the relevant norms and the practice of the institutions themselves. This approach aims to enrich these standards through domestic public law principles and other international norms as an auxiliary source, due to the often-­‐rudimentary character of the internal legal order of international 85
institutions. The problem with this framework is the same as with GAL and IIL, namely that the constitutional principles developed within international organizations are a mere description of what these institutions internally consider to be necessary in terms of procedural legitimacy, demoting domestic law principles and other international norms to, at best, a second order observation. A democratic or rule of law critique of the activities of IOs is still not feasible from a general legal point of view. To remedy this shortcoming, Bogdandy entrusts national judges with the task of setting up domestic procedural legitimacy requirements for the recognition of the acts of international institutions, thereby contributing to the emergence of “IO independent” general principles in the sense 86
of Art. 38 lit. (c.) There is deplorably no guarantee that the actions of international organizations will be reviewed through the national judiciary. For the case at hand, it is doubtful whether such review will arise at all, as there are still only a few jurisdictions that actually deal with cases of corporate accountability for actions committed abroad in which 87
a possible recognition of the rules and decisions of the OECD might arise. The public international lawyer is faced with a dilemma. Current public international law does not offer a conventionally agreed upon set of rules for the procedural legitimacy of IO actions. The recognition of IO norms and practices as the relevant law in form of customary 88
international law or international general principles does not allow for the development 85
VON BOGDANDY, supra note 80, at 746; VON BOGDANDY, et al., supra note 29, at 1396. 86
Id. at 749. 87
The only known case is the complaint submitted to the Finnish ombudsman claiming the lack of impartiality of the Finnish NCP in the Botnia Case. See on this: SCHULER, supra note 4, at 1756-­‐1757. There is however literature indicating that extraterritorial jurisdiction on corporate accountability before domestic courts is generally possible in many jurisdictions: CEDRIC RYNGAERT & JAN WOUTERS, Litigation for Overseas Corporate Human Rights Abuses in the European Union: The Challenge of Jurisdiction, 40 Geo. Wash. Int'l L. Rev. 939, 939-­‐975 (2009). 88
The international general principles were advocated as the appropriate source in particular for human rights and structural principles for the exercise of governmental authority in the domestic context. See: PHILIP ALSTON & BRUNO SIMMA, The Sources of Human Rights Law -­‐ Custom, Jus Cogens and General Principles, 12 Australian Yearbook of International Law 82, at 102-­‐106 (1988-­‐1989); NIELS PETERSEN, Der Wandel des Ungeschriebenen Völkerrechts im Zuge der Konstitutionalisierung (The change of the unwritten law in the course of writing a constitution), 46 AV 502, at 523 (2008). The contribution of IOs to the formation of international custom is recognized as it concerns customary norms for states. Both ideas are in principle exploitable for the creation of rules directly applicable to IOs. 2012] OECD G uidelines’ E nterprises Implementation for Multinational 67
of more than just a few bottom-­‐line principles applicable to all International Organizations because of their widespread use and acceptance without any critical assessment of the appropriateness of the rules. Moreover, this makes the autonomy of international organizations even stronger. It is therefore advisable to not too easily discard the direct applicability of general principles grounded in domestic law, and the transferral of customary rules for states to IOs. All approaches do share the concern for the rising impact of IO activities that need to be regulated and accept the usefulness of domestic principles and other international norms in determining the rules for IO conduct. The different value attached to the various sources (internal norms and practice, customary norms, international and domestic general principles) seems to be only a question of degree. It is given that dogmatic problems for the applicability of state centered customary norms exist, that both sources suffer from the disease of uncertainty and imprecision, and that a relevant portion in this approach relies on argumentation. Nevertheless it has to be underlined that reliance on principles emanating from domestic legal principles and from customary norms for the exercise of state authority is necessary. They are not only a subsidiary means, but norms directly competing with the internal norms and practices of IOs, and therefore the only basis for the development of a set of standards that offers the possibility for a normative critique without simply redrawing the law according to existing practice. In conclusion, it can be said that besides the applicable rules mentioned above, the current legal academic approaches propose to more thoroughly take into account the internal norms and practices of IOs, and to set them into context with other domestic and international norms to a varying degree. According to the value attached to the other norms, this allows for a different degree of normative critique inherent in the proposed norms. Best practices of some IOs can be used to critically evaluate other IOs; they lack, however, a binding force. Simply elevating common practice to the applicable standard leads to an apologetic set of norms devoid of any normative critique. Domestic law principles and customary norms on state exercise of public authority do offer a critical perspective and binding force, but are prone to dogmatic and theoretical questions of their applicability. There is thus no single theory solving entirely the riddle of IO accountability. The ILA principles, as has been noted in the beginning, are based on primary international 89
and domestic rules as well as internal IO decisions and practice. Although the concrete relationship between the different sources is not made explicit in the report, the ILA did basically proceed on the same assumptions as advanced by leading international scholars and obtained a set of principles deeply grounded in public international law, albeit with a certain degree of progressive development, which is at the moment unavoidable in the given context. Given this current scarcity of existing rules for the exercise of public authority by IOs, it is justifiable, if not necessary, to rely on the ILA standards as the only existing set of concrete norms that are perfectly in line with the law as it stands, and as it 89
ILA Report, supra note 53, at 6. 68 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
might reasonably develop within the constraints of the doctrine of public international law. The following section will therefore apply several of the proposed ILA principles to evaluate the performance of the OECD within the context of the Guidelines for Multinational Enterprises. D. Assessment of the OECD performance in terms of the ILA Principles on the Accountability of International Organizations I. Selection of Relevant Principles The selection of principles used to assess OECD performance is first based on the desire to cover those areas in which, according to a survey of the relevant literature, acute problems exist. This necessitates an analysis of the principle on reporting obligations, impartiality, access to information, reasoned decision, supervision, and effective remedies. Due to this approach, the principle on the relationship to NGOs is not part of the examination, as the 90
OECD within the context of the Guidelines performs quite well in this regard. The update process for the revision in 2011 was generally seen as exemplary as concerns the activities 91
of the Investment Committee. However, OECD Watch complains about the rush and the reluctance of other OECD bodies entrusted with the elaboration of specific chapters to include civil society, which led to the disappointing fact, that some proposals could not be 92
properly discussed in public. Some principles that do present problems are however not treated separately as the principle of transparency, which can be covered together with the principle of access to information and the procedural aspects of the principle of good faith (construed as the requirement to equal treatment of like cases), which is discussed within the section on the principle of constitutionality. Secondly, those principles that enjoy a binding legal force in public international law were also selected to keep a close link to public international law de lege lata. In this context, the principles of constitutionality of an effective remedy and of a reasoned decision are part of the analysis. II. Access to Information The ILA Report holds, as a first rule, that documents of an IO should be available to all 93
Member States, and secondly, that information held by the IO, including its archives, 90
Woodward, supra note 60, at 89; Salzman, supra note 3, at 217. 91
OECD Watch Statement, supra note 10, at 2. 92
Id. 93
ILA Report, supra note 53, at 9. 2012] OECD G uidelines’ E nterprises Implementation for Multinational 69
94
should be accessible to the public at large. IOs should not deny applications for access to information except for compelling reasons on limited grounds such as privacy, commercial 95
and industrial secrecy, or protection of the security of Member States or private parties. The IO should when appropriate protect the identity of those who provide them with 96
information. 1. General Requirements As concerns the quasi-­‐legislative activities of the OECD most information on the current update, such as the term of reference and other information, were provided on the Internet and were open to the public. The advisory bodies and OECD Watch also had 97
access to all internal documents based on separate agreements with the OECD. Access to information on the implementation of the Guidelines is, to the contrary, quite underdeveloped and reveals one of the main criticisms in the literature and in reports 98
issued by civil society organizations. The critique refers to the opaque and confidential treatment of specific instances. The OECD Council’s Procedural Guidance generally recognizes transparency and visibility as 99
two of the four basic criteria for the actions of NCPs. The commentary of the IC adds that transparency is an important criterion with respect to its contribution to the accountability of the NCP and to gaining the confidence of the general public. The commentary further reads that as a general principle the activities of the NCPs will be transparent. This formulation is stronger than in the last version of the Guidelines, in which the paragraph on transparency read that “most of the activities” would be transparent. Only when the NCP offers its good offices in implementing the Guidelines will it be in the best interest of the effective implementation of the Guidelines to take appropriate steps to establish 94
Id. 95
Id. 96
Id. 97
BIAC, TUAC and OECD Watch all have separate agreements with OECD bodies on the access to internal information. The agreements were not retrievable on the OECD website. Information obtained in an interview with Kirsten Drew from TUAC of 15 December 2010. 98
OECD Watch, Ten Years O, 43 (2010), available at: http://www.oecdwatch.org/publications-­‐
en/Publication_3550/view (last accessed: 23 December 2011); Utz concluded her analysis on specific instances during 2000-­‐2005 by stating that for one third of instances that were concluded the activities carried out by the NCP could not even be investigated. See Britta Utz, Die OECD Leitsätze für Transnationale Unternehmen 67 (2006); Johnston, supra note 4, at 250. 99
OECD Guidelines—Procedural Guidance, supra note 6, at section I, National Contact Points. 70 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
100
confidentiality. This means that, without revealing confidential information, at least working methods and the way to access the NCPs should always be transparent. However, not all of the NCPs have a satisfying website providing information on the Guidelines and describing the procedures including the relevant domestic contacts for submitting a 101
specific instance. The 2011 Commentary of the IC took this into account and requires the NCP to make public the relevant information for submitting a specific instance and the 102
procedures that will be applied by the NCP. 2. The Initial Assessment of the Merit of a Specific Instance As concerns the specific instance procedure, three phases have to be distinguished. In the first phase, the assessment of the further merit of the issue raised, the confidentiality 103
requirement does not apply. NCPs are free to issue public statements, preferably online or via other adequate avenues, concerning the issue that has been raised and the name of 104
the parties. As of 2011, NCPs are obliged to publish a first statement in case of a 105
negative assessment of the submission. This statement should include a description of 106
the issues raised and the reasons for the decision, taking into account the need to 107
preserve the confidentiality of sensitive business and other information. Moreover, in 100
OECD Guidelines— Commentary of the Investment Committee, supra note 6, at Section I, Transparency. 101
For an unsatisfactory example, try a search for the Spanish NCP on the Internet. For more information on the Spanish NCP, see JUAN HERNÁNDEZ ZUBIZARRETA, LAS EMPRESAS TRANSNACIONALES FRENTE A LOS DERECHOS HUMANOS: HISTORIA DE UNA ASIMETRÍA NORMATIVA (Multinational Companies Against Human Rights: The Story of a Policy Asymmetry) 439-­‐441 (2009). 102
OECD Guidelines— Commentary of the Investment Committee, supra note 6, at Section I, Information and Promotion, 3-­‐4. 103
OECD Guidelines— Procedural Guidance, supra note 6, at Section I, National Contact Points, C. 4. Implementation in specific instances; The confidentiality requirement only covers actions during the good offices procedures and therefore not the phase of the initial assessment. There is however indications that the initial assessment phase already involves an exchange of information and first fact-­‐finding so as to resemble the second good offices phase. In this case it might be reasonable to apply the confidentiality principle, but and only with the consequence that the statement on an initial assessment must be as detailed as a final statement as concerns the reasons for its refusal. Information on the initial assessment phase is drawn from an interview with a former employee of the German NCP. 104
See on the shortcomings of various NCPs: OECD Watch, supra note 98, at 43. 105
The Procedural Guidance only requires a statement in case the NCP is of the opinion that the accusation does not merit further attention. Procedural Guidance, supra note 6, at Section I, National Contact Points, 3 (a). The commentary of the Investment Committee however clarifies that NCPs may also publish a statement in case the accusation does merit further attention, Commentary of the Investment Committee, supra note 6, at Section I, Conclusion of the Procedures, at paras. 2-­‐3. 106
107
OECD Guidelines—Procedural Guidance, supra note 6, at Section I, National Contact Points, C. 3(a). OECD Guidelines— Commentary of the Investment Committee, supra note 6, at Section I, Conclusion of the Procedures, para. 2. 2012] OECD G uidelines’ E nterprises Implementation for Multinational 71
case the NCP believes that it would be unfair to publicly identify a party in the statement 108
on its decision, it may draft the statement so as to protect the identity of the party. The first restriction of the publication requirement is mirrored by the principles in the ILA Report that IOs should grant access to the public insofar as there are no compelling reasons for confidentiality. Providing the names of the company and the submitting party, as well as information on the alleged violation does not reveal any sensitive information. It is therefore not convincing to include the second restriction on the publication requirement based solely on the notion of fairness, which is neither defined in the guidelines nor a reflection of existing standards. Many NCPs will have to adapt their practice, since up to the 2011 revision only a few NCPs regularly published initial 109
statements, whereas the vast majority remained silent. Sometimes, not even the parties 110
involved were notified of the initial assessment decision, although at least the 111
notification of the parties seems to emerge as a general standard. 3. The “Good Offices” Phase When the conciliation procedures have begun, the further development of the instance remains confidential in order to protect sensitive business information. According to the Investment Committee, other information such as the identity of individuals, as well as the facts and arguments brought forward by the parties, should also be kept confidential in the 112
interests of the effective implementation. During the conciliation process, the retaining of information grounded in commercial and industrial secrecy is generally in line with the ILA principle. The ILA Report refers however only to the public and only to specific types of information. Therefore, the affected parties and their representatives should always have access to all information furnished to the NCP, as long as they respect the confidentiality of the information. This is a position that is reflected widely in the practice of experienced 113
NCPs, and should be adopted by other NCPs as well. Moreover, nothing in the Rules on the Implementation suggests that general remarks to the public on the progress of an 108
Id. 109
Sometimes NCP do not even react to a submission: Utz names for example the Polish NCP and the US NCP, see Utz, supra note 98, at 67-­‐70. 110
OECD Watch, The Confidentiality Principle, Transparency and the Specific Instance Procedure 5 (2006), available at: http://www.oecdwatch.org/publications-­‐en/Publication_1678/ (last accessed: 23 December 2011). 111
See for the general development towards notification of the parties about the results of the initial assessment, Annual Report of IC (2008), supra note 43, at 89. 112
OECD Guidelines—Procedural Guidance, supra note 6, at Section I National Contact Points C. 4; Commentary of the Investment Committee, supra note 6, at Section I, Transparency and Confidentiality. 113
Annual Report of IC 55 (2003), available at: http://www.oecd.org/document/20/0,3746,en_2649_34889_20589588_1_1_1_1,00.html (last accessed: 23 December 2011). 72 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
ongoing specific instance, including references to non-­‐sensitive types of information, are 114
prohibited. Especially in case the proceedings take a long time and no further development towards a solution is visible, the upholding of the confidentiality requirement 115
has been questioned in the literature. In the new version of the Guidelines, the Commentary of the IC sets general time limits for the different phases of the procedures 116
and requires NCPs to establish a concrete timeframe for each specific instance. If the parties fail to reach an agreement within the timeframe and after consultation of the parties on the value of continuing its assistance, the NCP might conclude the process and proceed to prepare a statement, if it deems the conclusion of the procedures to not be 117
productive. Within the new Guidelines, there is thus a possibility to make the prolonged pending of an instance public by its conclusion. However, it is up to the NCP to establish the concrete timeframe for each specific instance, and the general rule that the whole process should take no longer than 12 months can be circumvented if circumstances 118
warrant it, such as when the issues arise in a non-­‐adhering country. It is therefore still advisable to publish interim statements at least on non-­‐sensitive issues mentioned above. 4. After Conclusion of the Procedures As soon as the proceedings are finished and an agreement is obtained, the NCP is required to issue a report including a description of the issues raised, the procedures initiated by the 119
NCP and when the agreement was reached. Information on the content of the 120
agreement will only be included insofar as the parties agree. In case there is no agreement or a party was unwilling to participate in the proceedings, the NCP will issue a statement, including a description of the issues raised, the procedures initiated and the reasons why the instance merited further attention; the NCP will also make recommendations, as appropriate, on the implementation of the Guidelines and on the 114
OECD Watch, The Confidentiality Principle, supra note 110, at 4. 115
Heydenreich refers to this situation, CORNELIA HEYDENREICH, DIE OECD-­‐LEITSÄTZE FÜR MULTINATIONALE UNTERNEHMEN -­‐ EIN WIRKSAMES INSTRUMENT ZUR UNTERNEHMENSREGULIERUNG? (The OECD Guidelines for Multinational Companies— An Effective Tool for Corporate Regulation?) 7 (2005), available at: http//www.germanwatch.org/tw/kw05ls.pdf (last accessed: 23 December 2011); see also ZIMMER, supra note 12, at 101, who refers to the average duration of 15 months and one instance that took 36 months, a period in which it is not reasonable to request NGOs or workers unions to remain silent. 116
OECD Guidelines— Commentary of the Investment Committee, supra note 6, at Section I, Indicative Timeframe 1-­‐3. 117
Id. at Indicative Timeframe 2. 118
Id. at Indicative Timeframe 3. 119
OECD Guidelines— Procedural Guidance, supra note 6, at Part. I, National Contact Points, C.3 (b). 120
Id. 2012] OECD G uidelines’ E nterprises Implementation for Multinational 73
121
reasons why no agreement was reached. The 2011 version the Commentary of the IC provides for the possibility of the concerned parties to comment on a draft statement; the publication remains however, the sole responsibility of the NCP, which may or may not 122
take into account the comments received. The formerly included Section 4(b) of the Procedural Guidance—requiring the NCP to make the results publicly available, unless preserving the confidentiality would remain in the best interest of effective 123
implementation —has been deleted. Up to now, there was no uniform practice of the 124
NCPs as concerning this aspect. The German NCP interpreted the Guidelines in a way that required them to issue a public statement whenever the specific instances were 125
considered unsuccessful. Other NCPs did not issue a public statement, either in the case 126
of a successful conclusion, or in the opposite case. The latter practice already collided with the older IC Commentary, stating that the rule during proceedings is confidentiality, 127
but that results will normally be transparent, which is a provision that is also included in the 2011 version. In combination with the omission of the restricting confidentiality clause of the old Procedural Guidance, a major improvement has been obtained sending a clear message to NCPs to always issue a statement, including basic information on the case, irrespective of a positive or a negative outcome. Only by publishing final statements which include the facts, the norms and the recommendations can a uniform and non-­‐arbitrary application of the Guidelines and the future accountability of the NCP be ensured. 121
Id. at C.3(c). 122
OECD Guidelines— Commentary of the Investment Committee, supra note 6, at Section I, Conclusion of the Procedures, at para. 6. 123
The 2000 version of the Guidelines, including Procedural Guidance and Commentary of the Investment Committee, is contained in an OECD booklet OECD, http://www.oecd.org/dataoecd/56/36/1922428.pdf (last accessed: 23 December 2011); Procedural Guidance, Part. I, National Contact Points, C.4.b). 124
Utz, supra note 98, at 74-­‐76. 125
See German NCP, Leitfaden zum Beschwerdeverfahren (Procedural Guidance for the Specific Instance Procedure) 4, available at: http://www.bmwi.de/BMWi/Redaktion/PDF/MO/oecdleitfadenzumbeschwerdeverfahren,property=pdf,bereich=
bmwi,sprache=de,rwb=true.pdf (last accessed: 23 December 2011). 126
Utz, supra note 98, at 74-­‐77; Fsor the US NCP, see Christopher N. Franciose, A Critical Assessment of the United States' Implementation of the OECD Guidelines for Multinational Enterprises, 30 BOSTON COLLEGE INTERNATIONAL AND COMPARATIVE LAW REVIEW, 223-­‐236 (2007). 127
Commentary of the Investment Committee, supra note 123, at para. 19; see against a general rule on publishing the results: BIAC, Contribution to the Annual Report of IC (2003), supra note 113, at 92. The Commentary of the Investment Committee in the new version also contains the provision cited here that the results will normally be transparent. See the Commentary of the Investment Committee, supra note 6, at Section I, Transparency and Confidentiality. 74 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
III. Reporting There are several ILA principles that contain the basic duty to report on institutional and 128
operational activities. Subsidiary organs should be required to submit periodic reports to their parent organs. The receiving organs should ensure that the reports are regularly 129
submitted in an appropriate form and with a properly debate, whenever required. According to Section II.7 of the Council Decision, the IC must periodically report to the Council. The IC reports are issued regularly and are accessible on the webpage of the 130
OECD. Critique was raised that the quality of the IC’s reports does not satisfy its role as 131
supervisory organ. It is therefore lamentable that the reports published by the IC are not duly discussed within the Council as the competent parent organ. Also, the NCPs are required to issue annual reports to the IC, which should contain 132
information on implementation activities in specific instances. This obligation is clearly 133
not met by all NCPs, as the quality of the reports varies considerably. Some NCPs only refer in an abstract manner to the specific instances, without any information on the companies involved or the concrete outcomes, thus failing to meet the requirement of the ILA principles to submit reports in an appropriate form. This negligent NCP practice also contravenes a sub-­‐element of the principle of stating the reasons for decisions, which requires non-­‐plenary organs to reflect in their periodic reports all information of a non-­‐ 134
confidential nature forming the basis of their decisions. The Investment Committee took account of this poor reporting standard, and introduced a new paragraph in its commentary requiring NCPs to include information on all specific instances that have been initiated by the parties, including those that are in the process of an initial assessment, those for which good offers have been extended and discussions are in progress, and those in which the NCP has decided not to extend an offer of good offices after an initial 135
assessment. This is clearly an improvement in comparison to the old commentary. However its success depends first on the compliance of the NCPs, and second on the 128
ILA Report, supra note 53, Principle on Reporting and Evaluation, Sections 1-­‐ 5, 12. 129
ILA Report, supra note 53, at Principle on Reporting and Evaluation, Section 2, 12. 130
OECD Guidelines— Council Decision, supra note 6, at Part. 2, The Investment Committee, 7. 131
TUAC Contribution to the Annual Report of IC (2002) 61, available at: http://www.oecd.org/document/11/0,3746,en_2649_34889_2410315_1_1_1_1,00.html (last accessed: 23 December 2011). 132
OECD Guidelines— Procedural Guidance, supra note 6, at Section I, National Contact Points, D.(1) (2). 133
OECD Watch Contribution to the Annual Report of IC (2003), supra note 113, at 102. 134
ILA Report, supra note 53, at Principle of Stating the Reasons for Decisions, 14. 135
OECD Guidelines— Commentary of the Investment Committee, supra note 6, at Section I, Reporting to the Investment Committee. 2012] OECD G uidelines’ E nterprises Implementation for Multinational 75
willingness of the Investment Committee to properly supervise the delivery of appropriate reports. This supervisory function includes more analysis than a simple compilation of the Reports of NCPs within its own annual report, as was already requested by TUAC in 136
2002. Specific critique on individual shortcomings as well as concrete clarifications is required here. A further paragraph on the IC’s duties to carry out its supervisory function in 137
an appropriate manner was however, not introduced in the new text of the Guidelines. IV. Constitutionality The ILA report states that the principle of constitutionality entails a legal obligation for each IO to carry out its functions and exercise its powers in accordance with the rules of 138
the IO. This means foremost that organs of the IO should act within their legal competences, but also that positive obligations should lead to the required action. This is relevant for the implementation process managed by the NCPs, which is determined by the 139
legally binding Council decision and the Procedural Guidance section. Particularly problematic is the disregard of the provisions on the handling of the different phases of a specific instance, such as the notification on the initial assessment, or the final statement. These are clearly in violation of the principle of constitutionality, as well as of the principle 140
of good faith. As the provisions on the specific instance procedures have been enlarged in the update process by including time frames and more concrete publication requirements, the principle of constitutionality plays a vital role in reminding NCPs of their duties under those rules. Any violation of the implementation rules should be followed actively within the existing structure of supervision of NCP activities, especially through the IC. Otherwise the current arbitrary and inconsistent application of the Guidelines in specific 141
instances will persist. 136
TUAC Contribution to the Annual Report of IC (2002), supra note 131, at 61. 137
The Procedural Guidance still only requires the IC to consider the reports of NCPs. OECD Guidelines—
Procedural Guidance, supra note 6, at Section II, 3(a). 138
s, supra note 53, at Principles of Constitutionality and Institutional Balance, Section. 1, 12. 139
OECD Guidelines—Council Decision and Procedural Guidance, supra note 6, at 67-­‐75. 140
ILA Report, supra note 53, at Principle of Good Faith 12. This general principle gives rise to sub-­‐principles such as equal treatment of like cases. The equal treatment principle is not respected as regards the procedures and the institutional structure of the NCP including their financial resources as well as regards substantial issues. The 2011 version of the Guidelines remedies this arbitrary implementation to a certain extent. The Procedural Guidance and the Commentary of the IC now require the predictability of the specific instance procedures. The Commentary also introduces a paragraph requiring national governments to equip NCPs with financial resources for their proper functioning. OECD Guidelines— Procedural Guidance, supra note 6, at Section I, C; Commentary of the Investment Committee, supra note 6, at Preface and Section I, Guiding Principles for Specific Instances. 141
OECD Watch, The Confidentiality Principle, supra note 110, at 5. 76 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
V. Supervision According to the ILA report, “Parent organs have a duty to exercise a degree of control and supervision of subsidiary organs which corresponds to the functional autonomy 142
granted.” They should use this supervision and controlling power to overrule a decision 143
by a subsidiary organ, if that decision is contrary to applicable legal rules. This power by the supervising organ includes the right to question the way in which the subsidiary organ 144
has exercised its competence. There are two institutional relationships in the context of the Guidelines that might fall under the scope of these principles. First, the control carried out by the OECD Council over the actions taken by the IC and second the supervision exercised by the IC over the NCPs. The relationship between the IC and the OECD Council is characterized by the annual report of the IC, the only visible sign of their relationship. The OECD Council has the general obligation to require the IC to fulfill its duties. The OECD Council should exploit its hierarchical relationship to the IC more seriously requiring the IC to assume its own supervisory functions in an appropriate manner which in turn puts more pressure on the NCPs as the final implementer of the Guidelines. As regards the relationship between the IC and the NCPs, the Implementation rules entrust the IC with the responsibility for clarifications of the Guidelines, as concerns first, a substantiated submission by an adhering country, or an advisory body on whether an NCP is fulfilling its responsibilities with regard to its handling of specific instances, and second, a substantiated submission on whether an NCP has correctly interpreted the Guidelines in a 145
specific instance. The IC also has the general competence to make recommendations, as necessary, to improve the functioning of NCPs and the effective implementation of the 146
Guidelines. The Committee shall however not reach conclusions on the individual 147
conduct of an enterprise. Furthermore, the IC is the organ receiving and evaluating the annual reports of the NCPs. Before analyzing the norms and their actual implementation, it must be asked whether NCPs can be regarded as sub-­‐organs of the Investment Committee. The implementation 142
ILA Report, supra note 53, at Principle of Supervision and Control, Section 1, 13. 143
Id. at Section 2, 13. 144
Id. at Section 3, 13. 145
OECD Guidelines— Procedural Guidance, supra note 6, at Section II, Investment Committee, 2(b) and (c). 146
Id. at Section II, 2 (d). 147
OECD Guidelines— Council Decision, supra note 6, at Section II, 4. 2012] OECD G uidelines’ E nterprises Implementation for Multinational 77
rules already suggest such a relationship. This suggestion can be partly supported by the ILC draft articles on the responsibility of international organizations. In the first place, the 148
draft articles consider it irrelevant whether an organ is named as such by the IO. As concerns organs of a state placed at the disposal of the IO, the factual control over the organ is the determining factor for its status and as a consequence the attribution of 149
responsibility. The organ’s conduct is to be attributed to the Organization if it has exclusive direction and control and if the organ does not act on the instructions from the 150
sending state. It is obvious that most of the NCPs still consist of only government representatives of the adhering states integrated to a certain extent into the regular state institutions, thus implying their position as state organs. However, the NCPs do not fit well into the concept of a state organ, as they are created exclusively for the purpose of fulfilling the functions foreseen in the implementation rules of the Guidelines. States are not only obliged to set up National Contact Points, but even have to follow guidelines on their structure. The NCPs enjoy a certain degree of independence from national governments, which can amount to a complete independence as in the recently changed Dutch NCP. They are moreover subject to the control of the IC, as clarifications on moot issues are binding for states and NCPs. A contradictory interpretation of domestic organs is, in theory, irrelevant. A clear and unambiguous answer can therefore not be given to the question whether the NCPs are an organ of the OECD due to the differences in their composition and integration in state institutions, although a positive answer seems to be justified. As the OECD norms do provide for supervisory mechanisms on the actions of NCPs as subsidiary organs, it is in any case reasonable to assess their quality. Since 2000, only two substantial clarifications have been issued: one in response to a 151
British request, and one in response to a Swiss request. A clarification on procedural issues, e.g. bad performance in handling a specific instance was not yet given. The TUAC has prepared a request for such a procedural clarification that has not yet been 152
submitted. Finally, the IC published proprio motu a statement on the necessity of an 148
st
International Law Commission, Report on the 61 session, art. 5 Commentary 60 (2009), available at: http://untreaty.un.org/ilc/reports/2009/2009report.htm (last accessed: 23 December 2011). 149
Id. at art. 6 Commentary, 65. 150
Id. The position in the report of the International Law Association is similar, see ILA Report, supra note 53, at section 1-­‐5, 28. 151
The Swiss request concerned the application of the Guidelines in domestic cases, Annual Report of IC (2005), supra note 51, at 26; The British request concerned the applicability of the old version of the Guidelines, Annual Report of IC 64-­‐65 (2004), available at: http://www.oecd.org/document/20/0,3746,en_2649_34889_34325076_1_1_1_1,00.html (last accessed: 23 December 2011). 152
The request was not submitted as the clarification was considered as strategically counterproductive during the update deliberations. Information received in an interview conducted with Kirsten Drew from TUAC. 78 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
investment nexus, which can be considered as a general recommendation, but not as a 153
clarification in the strict sense. As concerns the quality of this recommendation, the IC elaborated on the necessity of an investment nexus and affirmed it as a relevant condition, but stated as well that flexibility 154
is required, as the Declaration does not provide definitions of international investment. This interpretation lacks any precision, and led to strongly different interpretations of the investment nexus requirement by several NCPs. Some of them included financial relations in the Guidelines, while others did not; a strict test was carried out regarding the petroleum industry, but a rather weak test was used to determine the applicability for the 155
cloth and garment industry. This is disconcerting if one considers the supervisory role the IC should play in contributing to an effective implementation of the Guidelines. It requires recommendations that actually raise the possibility of uniform interpretation by 156
the NCPs. Otherwise the activities have to be considered arbitrary, which clashes with the principles of good faith and constitutionality. As concerns the concrete problem of the investment nexus, the current update widened the scope of application, so that it is now clear that an investment nexus is not necessary and the financial sector is included. This is 157
a result that could have been obtained earlier in the history of the Guidelines. Another negative example of the IC’s supervisory role is the treatment of parallel proceedings, a moot issue for at least a decade. The parallel proceedings problem refers to the question of whether NCPs should engage in specific instances, although legal proceedings happen at the same time. It is of particular relevance as regards MNE activities that occur in areas of limited statehood or weak governance zones in which judicial 158
proceedings sometimes take place, but lack impartiality or effectiveness. Some NCPs refused to treat such cases for the adversarial nature transported into the NCP procedures and for the encroachment on the responsibility of other actors and states and further 159
reasons. Other NCPs did not refuse to handle specific instances in parallel with legal 153
The statement can be found in the Annual Report of IC (2003), supra note 113, at 22. 154
Id. 155
Utz, supra note 98, at 84. 156
ZIMMER, supra note 12, at 96. 157
OECD Watch Statement, supra note 10, at 2. 158
See the statement of the Swedish NCP that judicial proceedings in Ghana, which is certainly not the paradigmatic case of a weak governance zone, are insufficient in resources and capacity. OECD, Annual Meeting of the National Contact Points, Report by the Chair 15 (2003), available at: http://www.oecd.org/dataoecd/3/47/15941397.pdf (last accessed: 23 December 2011). 159
A summary of the different position can be found in the Annual Report of IC 94 (2006), available at: http://www.oecd.org/document/40/0,3746,en_2649_34889_37785448_1_1_1_1,00.html (last accessed: 23 December 2011). 2012] OECD G uidelines’ E nterprises Implementation for Multinational 79
proceedings for the simple reason that they see added value in the Guidelines 160
procedures. Generally, specific instances in parallel to legal proceedings were not prohibited in the Guidelines, or in the implementation provisions. The IC elaborated on this issue— although not in shape of a clarification— in its Annual Report 2006. It held that because of the complexity and specificity of each situation, a case-­‐by-­‐case approach is advisable. However, it gave some guidance to assess whether a specific instance should be carried out or not. NCPs have to evaluate whether there is actually added value in a specific instance. This value might have resulted from various characteristics of a case listed in the report, such as different actors, different issues, fostering other accountability mechanisms, providing other options than the formal procedures and shortcomings within 161
the parallel proceedings. This elaboration clearly gives some guidance on the problem as concerns the content. The report however, states to the contrary that the summary of aspects to be taken into account should not be considered as the final word on this 162
issue. Again the IC failed to assume its role as a supervisory organ by providing a concrete guidance that was directly disqualified as non-­‐conclusive, which left the NCPs free to take them into account or not. The new version of the Guidelines now includes this 163
guidance concerning the issue of parallel proceedings. Nevertheless several years have elapsed to reach this situation. In order to conform to its supervisory role, the IC should issue more concrete statements and exercise its proprio motu competence more often, especially in light of the various procedural shortcomings of the NCPs that have been 164
analyzed in detail by TUAC and NGOs. Another means of enhancing the supervisory mechanisms is the newly introduced peer review mechanism, a process already used once on the Dutch NCP. The peer learning process is however, voluntary, and although Procedural Guidance requires the Investment Committee to facilitate peer-­‐learning opportunities, the Commentary of the Investment Committee delegates this obligation directly to the NCPs. This again is no adequate 165
exercise of its supervisory role. 160
Id. at 97. 161
Id. at 96-­‐98. 162
Id. at 27. 163
OECD Guidelines— Commentary of the Investment Committee, supra note 6, at Section I, initial assessment, para. 2. 164
See TUAC’s analysis of procedural shortcomings in TUAC Contribution to the Annual Report of IC (2002), supra note 131, at 58. TUAC requested a clarification by the IC that was however not issued. Only a questionnaire was sent out to the NCP. The findings of the questionnaire were included in the Annual Report of IC (2003), supra note 113, at 22-­‐25 and 45-­‐56; OECD Watch Contribution to the Annual Report of IC (2008), supra note 43, at 126. 165
OECD Guidelines— Procedural Guidance, supra note 6, at Section II, 5 (c) and Commentary of the Investment Committee, supra note 6, at Section I, Peer Learning. 80 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
VI. Reasoned Decision The ILA report requires organs of an IO to state the reasons for their decisions or particular courses of action whenever necessary for the assessment of their proper functioning or 166
otherwise relevant from the point of view of their accountability. As regards the degree of detail that has to be met in order to satisfy this requirement, the principle distinguishes between decisions of a general nature and decisions that directly and immediately affect 167
the rights and obligations of states or non-­‐State entities. In the first case, reasons relating to the general character of the decision are sufficient. In the second case, the organ should set out the principal issues of law and fact upon which the decision is 168
based. The decisions of the IC within the clarification procedures concern either general issues of the interpretation of the Guidelines or the correct procedures for specific instances. They are therefore subject to the less severe standards. The two substantial clarifications hitherto given contained reasons explaining the decision. They were thereby complying 169
with the principle of a reasoned decision. The decisions of NCPs neither belong to decisions of a general nature, nor to the second category of decisions directly affecting rights and obligations. However, as has been argued above, the statements and recommendations of NCP do have an impact on the rights and obligations of MNEs and the individuals concerned. The reasons provided by the NCP should therefore resemble the degree of information required for the second category of decisions and should be set out as the principal issues of law and fact. This was however 170
neither reflected in the Procedural Guidance and the Commentary of 2000, nor with 171
some rare exceptions, in the practice of the NCP. The requirement to give information on the facts might be less strict when the information is of a confidential nature. However, a general standard that discussions and deliberations are confidential and only the fact of 172
the conclusion as such is public, as advocated by BIAC, is legally unacceptable. The final 166
ILA Report, supra note 53, at Principle of Stating the Reasons for Decisions, Section 1, 13. 167
Id. at Section 2, 13. 168
Id. at Section 3, 13. 169
See the two clarifications in Annual Report of IC (2005), supra note 51, at 26; Annual Report of IC (2004), supra note 151, at 64-­‐65. 170
OECD Guidelines—Procedural Guidance, supra note 123, at Section I, 4(b); Commentary of the Investment Committee, supra note 123, at Section I, para. 18-­‐19. 171
OECD Watch, The Confidentiality Principle, supra note 110,at 6; see also the answers of 23 NCPs to the question whether they give reasons for their decisions, Annual Report of IC (2003), supra note 113, at 53-­‐54. 172
BIAC, OECD Guidelines for Multinational Enterprises – Business Brief (2003), available at: http://www.biac.org/pubs/mne_guidelines/business-­‐brief-­‐1-­‐2-­‐final.pdf (last accessed: 23 December 2011). 2012] OECD G uidelines’ E nterprises Implementation for Multinational 81
statements should thus, as a general rule, contain information on the outcome of the 173
instance and on the facts as well as a referral to the norms applied to them. Taking into account the conviction of the UK NCP that there are no circumstances by which the effective implementation of the Guidelines will be served best by not publicizing the 174
outcome of a complaint, it should be highlighted that confidentiality is the exception, and transparency and reasoned decisions the regular standard. The new version of the Guidelines respects this principle and requires NCPs to publish final statements after procedures are closed as well as on negative initial assessments of an instance. These statements should include at least the issues raised, the reasons for the decision and, as appropriate, the recommendations for implementation, and the reasons why no 175
agreement has been reached. On paper the requirements therefore do generally accord with the ILA standard. Only the restriction “as appropriate” for the inclusion of recommendations remains behind the ILA standard, when it opens the possibility for the NCP to omit its legal reasoning based on the Guideline provisions that led to the specific sort of recommendations. Moreover it remains to be seen whether NCPs will actually change their rather silent behavior and adapt to these new rules. VII. Effective Remedy The ILA report states that as a general feature of law and as a basic international human rights standard, the right to a remedy also applies to IOs in their dealings with inter alia 176
non-­‐state parties, who are affected in their interests or rights by actions or omissions of 177
an organ of an IO or one of its agents. The principle requires first, on a procedural level, the granting of access to remedial procedures, and secondly, on a substantial level, the 178
actual granting of a remedy. These remedies should be adequate, effective and in the 179
case of legal remedies, enforceable. “Adequate” refers to the kind and nature of the 173
A good example for a negative outcome is the Final Statement of the French NCP, Aspocomp, mentioning the company, the allegations, the facts and the norms violated. See Annual Report of IC (2004), supra note 151, at 76. A good example for a positive outcome is the Final Statement of the Chilean NCP, Marine Harvest Chile S.A., including information on company, allegations, facts, norms, and solutions to remedy the violations, available at: http://www.oecd.org/dataoecd/42/13/32429072.pdf (last accessed: 23 December 2011); A positive example is also given with the Final Statement of the UK NCP, Peugeot, Annual Report of IC (2008), supra note 43, at 61-­‐70. 174
Stakeholder Consultation Document on the UK National Contact Point’s Promotion and Implementation of the OECD Guidelines 15 in, OECD Watch, The Confidentiality Principle, supra note 110, at 6. 175
See the section on transparency and access to information. 176
ILA Report, supra note 53, at Principle of Effective Remedy, Section 1, at 1, 33. 177
Id. at 33. 178
Id. at 33 et seq. 179
Id. at 33. 82 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
180
complaints that should be mirrored by the remedy. “Effective” refers to the 181
independence of the remedial institution from the respondent authority, and to the requirement to consider the substance of a complaint with all necessary care and to give a 182
reasoned reply. In the case at hand, the need for an effective remedy might only arise as concerns the specific instances handled by NCPs, impacting on the rights of MNEs and individuals, at least when they present the only available dispute resolution mechanism couched in the language of rights, or when they entail external consequences for future action of the parties. In particular, the shortcomings of the US, Japanese and Korean NCPs 183
raise serious questions of accountability and possible remedies. Within the context of the Guidelines, it is the IC that can be considered as having the 184
competence to remedy actions of the NCP through the clarification procedures. There are several problems with this procedure. First, the IC as a reviewing institution should be independent, which is currently not the case, as it is comprised of Member States. Sometimes the same person or persons of the same governmental department carry out NCP and the IC tasks, thereby reviewing and remedying their own conduct. Second, up to the 2011 revision, the ability to submit remedial actions only existed for states and the 185
advisory organs, but not for civil society organizations. From the point of view of the affected MNEs, this was rather uncomplicated, as they could refer cases to BIAC, their institutional representative. For the individuals or groups concerned with such a possibility existed only in a substantially limited sense, through the TUAC, which was an institution basically dedicated to advance labor rights. Moreover, only the MNEs had the right to issue 186
statements within the review process. These shortcomings were answered effectively by the adoption of the new version, which allows OECD Watch, as the representative of civil society organizations, to request a clarification, and enables all parties of a specific 187
instance that gave rise to a clarification to express their views orally, or in writing. 180
Id. at 34. 181
Id. 182
Id. at 37. 183
See TUAC Contribution to the Annual Report of IC (2005), naming these three in particular and others that do not comply with the rules on implementation. Annual Report of IC (2005), supra note 51, at 122. 184
Between 1977 and 2000, 35 clarifications were requested. Since the revision in 2000, only 2 more clarification requests were submitted. Utz, supra note 98, at 52. 185
OECD Guidelines— Procedural Guidance, supra note 123, at Section II, 3 (b) and (c). 186
OECD Guidelines— Council Decision, supra note 123, at Section II, Investment Committee, at para. 4. 187
For the competence of OECD Watch to request clarification, see OECD Guidelines— Procedural Guidance, supra note 6, at Section II, 2 (b) and (c); for the possibility of the parties to express their views, see OECD Council Decision, supra note 6, at Section II, 4. 2012] OECD G uidelines’ E nterprises Implementation for Multinational 83
Still, the clarification procedures can only be perceived as a supervisory tool, rather than as a way to obtain an effective remedy, as they neither provide the direct right to submit a clarification to all affected parties, nor guarantee the necessary independence of the reviewing organ. As the IC is excluded from making individual recommendations, a direct reversal of an NCP decision is also not possible. E. Impartiality The principle of impartiality and objectivity contained in the ILA report contains an abstract 188
duty to act in an objective, fair and impartial manner. As regards the NCPs, it has been 189
noted in the literature that they lack this quality. This deficiency can only be remedied by granting the government official a high degree of independence from their ministries, and by organizing the NCPs in a tripartite or four-­‐partite way, which creates a counterweight to the government official. The Dutch NCP reorganized its NCP in order to 190
respond to this critique. It consists now of one independent chair and three independent members selected from the various stakeholder communities, who are not bound by 191
government policies. It is however advised by the relevant ministries. In contrast to the 2000 version of the Guidelines, the newly adopted Rules introduce the requirement for 192
NCPs to act in an impartial manner. The Procedural Guidance requires impartiality of NCP operations while maintaining an adequate level of accountability to the adhering 193
government. Relying on impartiality, while at the same time tying the NCP to the government seems to contradict the concerns mentioned above. There are, however, two reasons that might be invoked in favor of a continued relationship with the government. First the principle on impartiality is, despite its fundamental importance, dependent on compliance with the other principles, and can be perceived as being respected if the other principles such as constitutionality, supervision, access to information and transparency 194
are fulfilled. In case these principles are respected and the impartiality given, the 188
ILA Report, supra note 53, at Principle of Objectivity and Impartiality, 14. 189
Schuler, supra note 4, at 1756; He describes an instance in which the Finnish NCP was accused before the Ombudsman of the Finnish parliament to be partial in its handling of a specific instance; also Queinnec, supra note 27, at 3.2; In the same vein, Contribution by OECD Watch to the Annual Report of IC (2005), supra note 51, at 134; see also the statement of the UK parliamentary commission on Human Rights that considered the lack of neutrality of the NCP as one of the major obstacles to an effective remedial body. Statement contained in OECD Watch, Ten Years On, supra note 98, at 50. 190
See the Annual Report of IC (2008), supra note 43, at 91. 191
See description in the Annual Report of IC (2008), supra note 43, at 12. 192
OECD Guidelines— Procedural Guidance, supra note 6, at Section I, A (1) and C. Commentary of the Investment Committee, supra note 6, at Section I, Guiding Principles for Specific Instances. 193
OECD Guidelines— Procedural Guidance, supra note 6, at Section I, A (1). 194
In this sense, see the ILA Report supra note 53, at Principle on objectivity and impartiality, 14. 84 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
institutional relationship to the ministry for economy or investment might in fact be considered as the “hidden” teeth of the implementation procedures through its 195
institutional memory. This seems to be implied by the newly adopted paragraph on providing other government agencies with relevant statements of the NCP, if this is relevant for their decisions. As long as neither concrete sanctions nor follow-­‐up or monitoring mechanisms are in place, which is currently the situation, this relationship can be of importance for the effectiveness of the Guidelines. Unfortunately, the other principles are currently not respected by the NCPs, and their impartiality is therefore, not a given. F. Summary and Recommendations The article has given concrete advice for the formulation of international procedural principles that should apply to OECD procedures in the context of the OECD Guidelines. The necessity of analyzing the procedural aspects of the Guidelines’ genesis and implementation is justified on the assumption that the Guidelines for MNEs are not well understood if one uses the term soft-­‐law. They are a globally applicable standard, elaborated on the basis of international norms and strengthened through their recognition by external actors such as, most prominently, the Security Council of the UN. They are implemented through specific procedures that factually and legally impact on the rights and duties of MNEs and individuals, especially in cases where no other recourse against alleged corporate misbehavior exists, such as in areas of limited statehood or weak governance zones. It is to be accepted that in the context of the Guidelines, the OECD and its implementing institutions exercise public authority that needs to be analyzed from the perspective of the procedural rights of affected persons and corporations. The classical sources of public international law only provide selected rules on procedural aspects of IO actions, such as the supremacy of the law and a right to an effective remedy, including a reasoned decision. A further effort is necessary to develop these norms. This work should draw from the constitutional norms and practices of the IO and from norms applicable to the domestic exercise of public authority. In order to be valid and generally applicable, they must however be couched in general principles of international law or customary international law. Theoretically, the groundwork for doing so has been produced in the literature. As concerns concrete proposals, it is currently the ILA that has elaborated the most concrete and encompassing set of procedural standards following the basic ideas on the combination of institutional practice and existing customary norms or general principles. The OECD performance as regards these principles can so far be described as poor, at least for the ICs and NCPs regulatory and dispute resolution measures. 195
I am indebted to a former employee of the German NCP who directed me towards this argument during an interview. 2012] OECD G uidelines’ E nterprises Implementation for Multinational 85
The Investment Committee performs quite well as regards to the elaboration of new norms. Serious concerns exist however, concerning its impartiality and the quality of its supervisory and review measures. Up to now, a critical evaluation of NCP’s performance has not take place. The clarifications and recommendations given by the IC lack the degree of precision necessary to contribute to the uniform application of the Guidelines. The reports given to the OECD Council are a description, not an analysis or critical evaluation of the effectiveness of the Guidelines. The 2011 update also failed to define the IC’s supervisory role in accordance with ILA standards, although improvements are given by enabling OECD-­‐Watch to request clarifications and allowing for all parties to express their views on the matter. Moreover the peer review system might be a practicable tool for supervision and future uniformity of application. However, the interpretation given by the IC to its role within the peer review process is again a step away from a proper supervisory organ. The NCP performance varies heavily from country to country, which raises a general problem with the constitutionality/legality of the actions carried out and the principle of good faith. In particular, the rules on transparency and access to information are circumvented by relying on the confidentiality principle to an extent, and this is not justifiable. Access to information is therefore, in too many cases, not provided. Unfortunately, even in those cases where statements were given by the more transparent NCPs, the statements often lacked a kind of reasoned explanation on which grounds and for what facts a specific decision was reached. This secrecy is maintained in the annual reports of various NCPs. The new Guidelines do confront this issue and include better and stricter rules, as concerns the requirement to publish final and interim statements and annual reports specifying also their necessary content. The new version of the Guidelines also introduces new principles for the operation of the NCPs, such as its impartiality and predictability. These rules present improvements, but their implementation remains to be seen in practice. In order to remedy some of these shortcomings, the IC as well as the NCPs should first and foremost abide by the rules adopted, following the principle on constitutionality, as the existing rules include useful approaches that wait to be honestly implemented. The IC should focus on its role and function as a parent organ, and pressure NCPs to comply with the implementation rules. NCP should strive for a uniform application of specific instance rules and make use of the newly introduced peer review mechanism. Through the introduction of OECD Watch’s competence to request clarification, another critical civil society actor will hopefully make use of the available procedures in order to remind the IC and the NCPs of their respective duties. Developments Introduction – THE GERMAN LAW JOURNAL’S HUMAN RIGHTS SYMPOSIUM (2012) ∗
By Tiffany Wong A. Introduction My motivation in putting together this Human Rights Symposium for the German Law Journal (GLJ) is based on a number of events in the news this year: recent outbreaks of political protests in Libya and Egypt, on-­‐going wars in Iraq and Afghanistan and natural st
disasters in Haiti and Japan, that have re-­‐opened questions about human rights in the 21 century on a global scale. Transnational legal analysts, scholars and experts have tracked these changes, raising key questions about transnational justice, human rights and global legalism in a community of discourse on these matters. Prominent authors around the world have published recent books from established institutions on various aspects of human rights that are worthy of review. I have thus selected from a variety of legal scholars and law students to review the works of others interested in the same areas of transnational law in light of recent world events. The following books were selected to be included in this symposium: o The Idea of Justice, Amartya Sen (Harvard University Press, 2009); o The Perils of Global Legalism, Eric A. Posner (Chicago University Press, 2009); o Mobilizing for Human Rights, Beth Simmons (Cambridge University Press, 2009); o The Idea of Human Rights, Charles R. Beitz (Oxford University Press, 2009); and o Transitional Justice and Development: Making Connections, edited by Pablo de Greiff and Roger Duthie (Social Science Research Council, 2010). The German Law Journal is mandated to provide a transnational reach into the most recent developments in German, European, and International Jurisprudence with an JD (2011), Osgoode Hall Law School, York University (Toronto, Canada); BA McGill University (Montreal, Quebec, Canada); Senior Editor & Book Review Editor (2010-­‐2011), German Law Journal. Email: [email protected]. ∗
2012] Transitional aking C onnections Justice and Development: M
53 internationally-­‐based peer-­‐review board, readership, contributors and student editors. It is not only from a European perspective, but a global one as our reviewers and authors come from a variety of scholarly backgrounds, institutions, and outlooks that hopefully becomes clear in this symposium. It has been a pleasure curating and producing this collection of book reviews for this Human Rights Symposium at the GLJ this year. I would like to thank the book reviewers for their scholarly input into the discussion, Professor Zumbansen, GLJ Editor-­‐in-­‐Chief for encouraging me to embark on this project, the GLJ peer review board for their expertise on the drafts, Charlie Sherman for his role as the GLJ’s Managing Editor for the 2010-­‐2011 academic year, the rest of the GLJ student editorial team, and our audience of 11,000 online subscribers. Perhaps you will be motivated to read these books upon reading these reviews. Ultimately, I hope you take the opportunity to reflect, learn and offer your perspective on such current debates. Developments Book Review – Amartya Sen’s The Idea of Justice (2009) By Michael Da Silva* [AMARTYA SEN, THE IDEA OF JUSTICE (HARVARD UNIVERSITY PRESS, 2009); ISBN: 9780674060470; 496 pp; $22.95; Paperback] A. Introduction John Rawls is often described as the father of contemporary political philosophy. Common introductory history of philosophy marks the 1971 publication of A Theory of Justice as the reinvigoration of debate in what had previously been a dormant field of philosophical reflection. In A Theory of Justice, Rawls argued for a liberal political philosophy. He famously articulated a thought experiment in which citizens (or, more accurately, their theoretical proxies) were encouraged to reach common consensus on how to govern society. An ideal running of the thought experiment, when subject to necessary constraints, was supposed to lead to the adoption of liberal democracy. Since then, Rawls’s colleagues, students and public interlocutors have produced many reflections and criticisms of his work. They are concerned with a wide variety of issues, including the ideal structure of public institutions, how to distribute goods, how public debate should take place and how to accommodate diversity in public society. Broadly sympathetic thinkers, like his student Martha Nussbaum, sought to refine the work. Nussbaum, for instance, pointed out that it falters on the extremes and attempted to articulate how to deal with these extremes. More seriously damning attacks came from a variety of philosophical perspectives. Libertarians like Robert Nozick questioned Rawls’s conception of distributive justice while communitarians like Charles Taylor and Michael Sandel argued that it was insufficiently sensitive to the social context of political life and decision-­‐making. Regardless of their differences, it can be argued that common to most major political philosophy in a post-­‐A Theory of Justice world is an engagement with Rawls’s work. If it is true that all contemporary political philosophy exists in the shadow of Rawls and must engage with Rawls’s work, then contemporary political philosophy must deal, at least in part, with Rawls’s central theme: justice. It is thus unsurprising that many of the preeminent works in contemporary political philosophy, including works from Rawls’s * .
JD Candidate, University of Toronto Faculty of Law. Email: [email protected] 2012] Sen’s The Idea of Justice 1
55 2
critics, carry titles like Frontiers of Justice (Nussbaum) or, simply, Justice (Sandel). With The Idea of Justice, Amartya Sen, winner of the Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel and a former colleague of Rawls at Harvard, offers his 3
own statement on justice. It is a welcome contribution to the literature on the subject and a first-­‐rate work of political philosophy. Published in 2009, it is already recognized as an important work and was the subject of a symposium at Rutgers School of Law in April 2011. The Idea of Justice is an interdisciplinary work which Sen states is intended to have a direct bearing on political and moral philosophy, while also engaging economics, politics and law 4
in the hopes of influencing practical policy. Sen’s credentials in these fields are impeccable. His Nobel Prize for his welfare economics scholarship clearly indicates his prowess in economics. Sen co-­‐taught classes with Robert Nozick, Rawls, Sandel and other 5
leading philosophers. He knew many of the major twentieth century legal theorists and 6
presented parts of The Idea of Justice at several major law schools. In The Idea of Justice, Sen deftly melds insights from the fields of politics, economics, and law into a work that will resonate wherever political theory is relevant. This essay provides a brief synopsis of The Idea of Justice followed by a critique of the book focusing primarily on its theoretical engagement with Rawls’ work. B. The Idea of Justice – A Brief Synopsis The Idea of Justice is a four-­‐part work. The first section, The Demands of Justice, is primarily intellectual history. Sen first provides a definition of and justification for reason based in large part on the demands of objectivity. Sen says that we rely on reason to be as objective 7
as possible in both politics and ethics. Following Adam Smith, John Rawls and Jürgen 1
MARTHA NUSSBAUM, FRONTIERS OF JUSTICE: DISABILITY, NATIONALITY, SPECIES MEMBERSHIP (2007). 2
MICHAEL J. SANDEL, JUSTICE: WHAT’S THE RIGHT THING TO DO? (2009). 3
Sen formally commented on A Theory of Justice for Harvard University Press before its publication and wrote his Collective Choice and Social Welfare at the same time as Rawls’s famous text; see AMARTYA SEN, THE IDEA OF JUSTICE 52-­‐53 (2009). 4
Id. at xi. 5
Id. at xi & xxii. 6
He presented parts of The Idea of Justice at Harvard, Yale, Northwestern, Cardozo and Washington Law Schools and has been an interlocutor of the likes of H.L.A. Hart, Tony Honore, Joseph Raz and Jeremy Waldron. He co-­‐
taught a class at Oxford with Ronald Dworkin; id. at 264. 7
Id. at 40-­‐41. 56 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
Habermas, Sen takes “reasoned scrutiny from different perspectives to be an essential part 8
of the demands of objectivity for ethics and political convictions.” He then proceeds with his chapter on Rawls, noting that any summary is an “act of barbarism,” but nevertheless recognizing the importance of outlining some key points prior to establishing one’s own 9
theory of justice. He identifies three difficulties with Rawls’s theory that need fresh 10
investigation: (1) the inescapable relevance of actual behavior, (2) alternatives to the 11
12
contractarian approach and (3) the relevance of global perspectives. The third chapter reiterates Sen’s argument that institutions must be seen as instruments for promoting 13
justice rather than manifestations of justice. The fourth chapter provides a brief history of social choice theory, which Sen argues is, contrary to common belief, closer to the world 14
of practice than contractarian theories. The fifth chapter focuses on impartiality, 15
accepting that it must include universality of inclusion and introducing a distinction between Smithian open impartiality and Rawlsian/Kantian closed impartiality that forms 16
the basis of the final chapter of the section. The second section of The Idea of Justice, Forms of Reasoning, is the beginning of the constructive part of the text. Sen argues for the importance of positionality— the fact that where one is situated has an impact on their observation and decision-­‐making processes— in a theory of justice. He says it “may be particularly crucial in interpreting systematic and persistent illusions that can significantly influence – and distort – social understanding and 17
the assessment of public affairs.” The deliberate use of open impartiality can help overcome positional limitations, but one cannot proceed “smoothly from positional views 8
Id. at 45. 9
Id. at 53. 10
Id. at 68. (“[I]f the justice of what happens to a society depends on a combination of institutional features and actual behavioral characteristics . . . then is it possible to identify ‘just’ institutions for a society without making them contingent on actual behavior . . . ”) 11
He advocates Adam Smith’s impartial spectator approach as preferable to the contractarian approach of Kant and Rawls. 12
SEN, supra note 3, at 71. 13
Id. at 82. 14
Id. at 95. 15
Id. at 117. 16
Although Kantian impartiality is more widely accepted, Sen states that it faces fundamental limitations and problems for international justice. He seeks to overcome these problems using Smith’s open impartiality, which has been partially realized in the involvement of NGOs, trade unions, et. al. in global affairs; id. at 151. 17
Id. at 168. 2012] Sen’s The Idea of Justice 57 18
to an ultimate ‘view from nowhere’.” Sen then provides a history of critique of rational 19
20
choice theory and its gradual creep into our legal understanding (Chapter 8). Sen argues that “there is nothing particularly unusual, or especially contrary to reason, for a person to choose to pursue a goal that is not exclusively confined to his or her own self-­‐interest” and 21
that Smith recognized this fact. Sen emphasizes the importance of a plurality of reasons 22
to move beyond self-­‐interest. The basic point of the following chapter is the recognition of “the existence of different approaches to the pursuit of reasonable behavior, not all of which need be parasitic on the advantage-­‐based reasoning of mutually beneficial 23
cooperation.” In the final chapter of the section, Sen examines realizations, consequences and agency. In the course of his examination, he distinguishes his work from 24
that of the standard consequentalists. In part three, The Materials of Justice, Sen first argues for the “centrality of human lives in 25
reasoned assessments of the world in which we live” as part of a larger argument for a 26
capability approach as the “informational focus” of his theory (Chapter 11). The capability approach focuses “not just on what a person actually ends up doing, but also on what she 27
is in fact able to do, whether or not she chooses to make use of that opportunity.” This approach is posited in opposition to standard conceptions of justice, including the Rawlsian 28
approach. Indeed, a substantial portion of the chapters elaborating the capabilities 29
approach is a critique of Rawls’s emphasis on primary goods. Sen’s theory is an ends-­‐
18
Id. at 169. 19
Id. at 174. 20
Id. at 179. 21
Id. at 191. 22
Id. at 183. (“The possibility of plurality of sustainable reasons is not only important in giving rationality its due, it also distances the idea of rational choice from its putative role as a simple predicator of actual choice, as it has widely been used in mainstream economics. Even if every actual choice happens to be invariably rational in the sense of being sustainable by critical scrutiny, the plurality of rational choice makes it hard to obtain a unique prediction about a person’s actual choice from the idea of rationality alone.”) 23
Id. at 206. 24
Id. at 208-­‐217. 25
Id. at 225. 26
Id. at 231; Martha Nussbaum also uses a capability approach (NUSSBAUM, supra note 1, at 232). 27
SEN, supra note 3, at 235. 28
Id. at 253. Cohen has critiqued the capabilities approach and Sen deals with Cohen’s criticisms in the text (SEN, supra note 3, at 235). 29
Id. at 260-­‐263. To read about primary goods, see JOHN RAWLS, JUSTICE AS FAIRNESS: A RESTATEMENT 57-­‐61 (2001) or JOHN RAWLS, A THEORY OF JUSTICE: REVISED EDITION 78-­‐81 (1999). 58 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
30
based conception of distributive justice rather than a means-­‐based one. While both Rawls and Sen are concerned with ensuring people pursue their conception of good, Sen thinks Rawls would give citizens the theoretical means to do so without properly attending to whether they could actually pursue them given their capabilities. He is not willing to 31
base distribution on achievement, but thinks that the provision of primary goods to equal proxies is an insufficient framework for distributive justice. Sen explores the implications of his approach for resource allocation in Chapter 12, suggesting it will lead to radical changes to evaluation in economics and the social 32
sciences. He also begins to outline the key policy concerns of a capability approach, including the prevention and alleviation of disability, which would ensure that people are 33
capable of pursuing their conceptions of the good. In the following chapter, Sen underscores his commitment to pluralism by once again debunking the idea that any one value, in this case happiness, can be the only thing to value or the metric for judging other 34
values. Sen underscores the importance of equality, admitting that it is closely related to his 35
argument for the importance of impartiality. According to Sen, equality of capability is 36
not essential and capability does not trump other important considerations. Sen 37
prioritizes freedom. Sen’s refusal to make capability a trump card is admirable and consistent with his emphasis on plurality and comparison. It is somewhat odd, however, that he still gives priority to one good: freedom. If plurality and comparison are to be emphasized, any particular value taking primacy may be problematic since it could be viewed as antithetical to a broad plurality. One could argue that freedom is both fundamental and prior to recognition of plurality as a good or contradicts the more fundamental plurality. For Sen, freedom is primary and necessitates plurality. He eventually notes that liberty too must be plural, suggesting room for freedom to exist as 38
fundamental and plural. 30
SEN, supra note 3, at 234. 31
Id. at 235. 32
Id. at 253. 33
Id. at 259. 34
Id. at 276 35
Id. at 293. 36
Id. at 295. 37
Id. at 299. 38
Id. at 317. 2012] Sen’s The Idea of Justice 59 In the final section of the book, Public Reasoning and Democracy, Sen argues for a conception of democracy as public reason, rather than procedures like balloting (Chapter 15) and provides an important history of democracy in order to stress its continued relevance. According to Sen, democracy is not a merely a Western construct. While institutional democracy, a relatively new concept, is primarily Western in origin, public 39
reason and participatory living have been important throughout the world’s history. In making his argument, Sen brings to the forefront something that is implicit in his frequent 40
references to Eastern (mainly Indian) sources throughout the text: Western and Eastern thought have largely developed parallel to one another with many shared features helping 41
to create a global heritage, contrary to arguments for cultural incommensurability 42
motivating opposition to the export of democracy. Even the Middle East is not an 43
exception and has a strong history of participatory living. The Practice of Democracy, an 44
explicitly empirical chapter, follows and bridges his theoretical project to an elaboration of his previous economic works, such as Poverty and Famines: An Essay on Entitlement and Deprivation. The penultimate of the book, Human Rights and Global Imperatives, is the one most closely related to the purview of this journal and thus demands special consideration. After addressing the historical debate over human rights (with particular emphasis on Jeremy 45
Bentham’s criticism of the French Revolution), Sen argues that we should understand 46
human rights as ethical proclamations, not legal rights. For Sen, ‘human rights’ is a maximation theory of ethics positing that one good—human rights—should be 47
48
maximized. As H.L.A. Hart rightly points out, human rights do motivate legislation. There are also other avenues beyond the legislature for maximizing rights, including civil 49
society groups like NGOs. 39
Id. at 322. 40
I.e. Mughal emperor Akbar, Buddha and the Sanskrit epic Mahabharata; Id. at 37, 205, 208. 41
SEN, supra note 3, at xiii. 42
Id. at 322, 328. 43
Id. at 333. 44
Id. at 338. 45
Id. at 355-­‐358. He later problematizes Bentham’s views; id. at 362-­‐364. 46
Id. at 360, 258. 47
Id. at 362. 48
Id. at 363. 49
Id. at 365. 60 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
The story of human rights ethics having numerous ways to enter the legal and political domain is likely not new for any activists reading this piece. The human rights ethos has both rhetorical and aspirational value in political practice, to the extent that human rights can become as important as the freedoms they promote. Where human rights are primarily an ethical framework, what role they should play in political deliberation is nonetheless contested. Whether one can treat them as purely ethical is worth considering, and indeed some theorists link the theoretical question of what human rights are with the 50
political question of what one is to do with them. This raises the issue of whether an articulation of human rights as ethics should only define them as things can be politically fostered. Sen does not endorse this approach, but rather posits that rights and freedoms must survive critical scrutiny in the context of open impartiality in order to maintain proper 51
force. In an effort to achieve his desire of creating a work that will influence practical policy, Sen devotes the final chapter of the book, Justice and the World, to the concept of open impartiality. He believes his discussion of this topic “has direct relevance to some of the 52
contemporary debates in the Supreme Court of the United States.” In that chapter, Sen neglects to explicitly make the link between theory and practice (Human Rights and Global Policy is a more clearly practical chapter), though one can easily apply the theory on one’s own. Ultimately, the chapter is primarily a summary with explanations of previously 53
54
addressed issues like public reason and the plurality of reasons serving as the key foci. C. The Idea of Justice – Analysis The Idea of Justice is offered as “an attempt to investigate realization-­‐based comparisons 55
that focus on the advancement or retreat of justice.” Sen says his theory differs from contemporary mainstream treatments of justice in three ways: (1) it is comparative, rather 50
BERNARD WILLIAMS, IN THE BEGINNING WAS THE DEED: REALISM AND MORAL ARGUMENT IN POLITICAL ARGUMENT 72 (2007) (“Whether it is a matter of philosophical good sense to treat a certain practice as a violation of human rights, and whether it is politically good sense, cannot ultimately constitute two separate questions”). 51
SEN, supra note 3, at 385-­‐387. 52
Id. at xi. 53
Id. at 392. 54
Id. at 294. 55
Id. at 8. 2012] 56
Sen’s The Idea of Justice 61 57
than ideal, (2) it is valuationally pluralist, and (3) it is concerned with human lives and 58
behaviors, rather than institutions. While transcendental institutionalists, like Kant and 59
Rawls, desire a perfect society and focus on getting institutions right, Sen positions himself within a competing Enlightenment project, exemplified by figures as diverse as 60
Cordorcet, Wollstonecraft, Bentham, Marx and Mill, “interested primarily in the removal 61
of manifest injustice from the world they saw.” He does this partly due to key fundamental problems with transcendentalism: the infeasibility of finding an agreed 62
transcendental solution and the redundancy of the search for a transcendental solution. Despite Sen’s focus on the way people live their lives, comparisons between individual lives (or the national circumstances in which people live) are not the primary foci of his book. Throughout much of the book, Sen instead makes a theoretical argument for why these comparisons are needed. Methodologically, Sen admits that this ultimately amounts to a 63
tendency to “concentrate on distinctions and highlight contrasts.” Theories are what are most frequently compared in The Idea of Justice. Perhaps the most intriguing comparison is the one between Sen’s framework and that of the individual, namely Rawls, whom he appears to most frequently cite, to the extent that The Idea of Justice argues from within Rawls’s shadow. Rawls’s name is the first in the acknowledgments section and The Idea of Justice is dedicated to the memory of Rawls, 64
who inspired Sen to work on justice and with whom Sen co-­‐taught courses at Harvard. Sen explicitly notes that he will make use of insights from transcendental idealists like 56
Id. at ix (“[A] theory of justice that can serve as the basis of practical reasoning must include ways of judging how to reduce injustice and advance justice, rather than aiming only at the characterization of perfectly just societies”). 57
Id. at 4 (“Arbitrary reduction of multiple and potentially conflicting principles to one solitary survivor, guillotining all the other evaluative criteria is not, in fact, a perquisite for getting useful and robust conclusions on what should be done. This applies as much to the theory of justice as it does to any other part of the discipline of practical reason”). 58
Id. at x (“[T]he presence of remedial injustice may well be connected with behavioral transgressions rather than institutional shortcomings .... Justice is ultimately connected with the way people’s lives go, and not merely with the nature of the institutions surrounding them”). 59
Id. at 5-­‐6. 60
Id. at xvi. 61
Id. at 7. 62
Id. at 5-­‐6. 63
Id. at 413. 64
Id. at xxi. 62 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
65
Rawls, then proceeds to focus almost exclusively on Rawls’s work in the second chapter of the book, Rawls and Beyond. Despite his deep admiration for Rawls, Sen calls for an end to the Rawlsian project. According to Sen, political philosophers “have to benefit from the richness of the ideas we 66
have got from Rawls – and then move on, rather than taking a ‘vacation’.” The beneficial ideas that Sen chooses to hold on to include “the idea that fairness is central to justice” 67
and Rawlsian objectivity. He also thinks positive lessons can be learned from Rawls’s emphasis on capacity for a sense of justice, the distinction between rationality and reasonableness, the prioritization of liberty, the importance of procedural fairness, the importance of equity and social arrangements and “the importance of freedom in giving 68
people real . . . opportunity to do what they would like with their own lives.” Sen’s critiques of the original position and Rawls’s institutionalism are nonetheless strong and lead him to suggest we should move on from the Rawlsian project. Sen’s pluralism puts him at odds with Rawls’s principles of justice: “Mutual benefit, based on symmetry and reciprocity, is not the only foundation for thinking about reasonable 69
behavior towards others.” Sen appears, however, to prefer A Theory of Justice to the work of the later Rawls, who allows his principled theory to co-­‐exist with other comprehensive frameworks. Sen argues that once the uniqueness of the Rawlsian principles of justice is dropped, his institutionalism project (which “goes some distance 70
towards a purely institutional view of justice”) seems indeterminate and loses its key feature. One almost wonders if Sen would have preferred Rawls to have held on to his principles for the sake of consistency, but Sen instead suggests that Rawls could have overcome the obstacle by adopting his own approach. He sees elements of a Sen-­‐like anti-­‐
institutionalism in Rawls’s later works, but is unable to definitively state that Rawls was in 71
fact considering “abandoning the transcendental institutionalism of his earlier work.” 72
Even in his later work, Rawls is clearly concerned with ideal theory. Contrary to Sen’s 65
Id. at xvi. 66
Id. at 74. 67
Id. at 62. 68
Id. at 62-­‐65. 69
Id. at 207. 70
Id. at 85. 71
Id. at 12. 72
JOHN RAWLS, JUSTICE AS FAIRNESS: A RESTATEMENT 13 (2001); his society only needs to be reasonably just as opposed to ideal, 4. 2012] Sen’s The Idea of Justice 63 inclinations, even this later work relied on institutions to provide the background justice 73
necessary for an ideally just world. Sen’s critique of Rawls is sensitive and sympathetic, but may miss some of the nuances of the Rawlsian institutionalism and idealism Sen so abhors. While Rawls is undoubtedly institutional in his focus, this focus is not monolithic. There is room for non-­‐institutional actors in the creation and promotion of justice. Institutions merely provide the background conditions for justice while individual actors must achieve it. Part of Sen’s problem with institutionalism is that different voices need to be heard in public discourse, not just formal institutions; this is a key to open impartiality. While Rawls certainly emphasizes the importance of institutions, he is also very open to other actors in public discourse. It is not only the case that Rawlsian institutions are created in a thought experiment in which individuals are represented by proxies and individual liberty is to be promoted. Rawls also thinks that individuals have a significant role to play in the real-­‐world creation not only of just institutions, but a just society. His commitments to public reason and deliberative democracy, shared with individuals from the Marxist comparative strain, like Iris Marion 74
Young, open him to individual actors and real human lives. Sen may be right in suggesting that institutions should not be prioritized to the extent that Rawls prioritizes them, but I worry that Sen overemphasizes that priority. Rawls actually advocates for a public role for non-­‐institutional bodies in the decision-­‐making process in his defense of deliberative democracy. Likewise, greater discussion of the role of overlapping consensus and the status of comprehensive doctrines is needed from Sen in order to fully establish Rawls’ idealism. Rawls’s later work is meant to be merely political, not metaphysical. It maintains a commitment to his principles, but also allows for other comprehensive doctrines to exist, which are then to be compared on the basis of their reasonability. If reasonable, they are to play a role in politics, but comparison is still needed for an ideal to be met. The ideal is Rawls’s primary concern and this may be problematic, but even Sen admits that both Kant and Rawls offer some “clues” for comparative issues. Indeed, Rawls is described as more 75
comparative than any other transcendental idealist. 73
Id. at 10. 74
For Rawls’s major statement on public reason, see JOHN RAWLS, POLITICAL LIBERALISM: EXPANDED EDITION 212-­‐254, 440-­‐490 (2005). The former lecture appeared in the original 1993 edition of the book and the latter revisits the original concepts therein. The former was included as a “Major Statement” on the idea of deliberative democracy in JAMES BOHMAN & WILLIAM REHG (EDS.), DELIBERATIVE DEMOCRACY: ESSAYS ON REASON AND POLITICS 92 (1997). Iris Marion Young’s work was also included in that volume at 383. For a robust understanding of Young’s deliberative democracy see Iris Marion Young, INCLUSION AND DEMOCRACY (2002). 75
SEN, supra note 3, at 97. 64 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
Despite my immense respect for Sen’s accomplishments in a wide variety of fields, part of my worry is rooted in how Sen moves from one to another. Despite its forays into other disciplines, The Idea of Justice reads best as a work of political theory. At times, however, Sen appears to merge ethics and politics, even calling his work a “substantive theory of 76
ethics and political philosophy.” More explicit detail both on how Sen views the relationship between politics and ethics, and on how he reads Rawls’s views on this topic is needed to flesh out his own theory and his criticism of Rawls. Sen’s treatment of human rights is one of the best chapters of the book thanks largely to its focus on this relationship—how human rights as ethics interact with open impartiality—is an important contribution to the literature. Similarly, while Rawls treats global justice as a separate area of study from political justice, Sen’s criticism of the two appear to merge at times, leaving one to wonder if he is aware of 77
how Rawls wishes to keep them analytically distinct. The Idea of Justice is not a work on Rawls’s scholarship so we cannot expect Sen to deal with every issue in Rawls’s work. It is thus acceptable that Sen’s discussion of the necessity of sustainable development does not deal with intergenerational justice, a key topic of debate in contemporary, post-­‐Rawlsian 78
political philosophy. Focus on the issues in this and the preceding paragraph would, however, improve Sen’s text as a whole, not merely his criticism of Rawls. Furthermore, even if one grants that Rawls is a standard transcendentalist, it is not clear that he must be silent on comparisons. According to Sen, transcendental theories of justice are neither necessary nor sufficient for making comparative claims. The search for transcendental justice is unnecessary because one can make comparisons in the absence of a transcendental ideal. It is insufficient because it ultimately “does not tell us much 79
about the comparative merits of different societal arrangements.” While the argument for necessity has strong force, a rhetorical question Sen offers in opposition to transcendental idealism may have multiple answers. He asks, “does not a transcendental identification in itself tell us something about comparative issues, even when those issues 80
are not explicitly confronted? Are there not some analytical connections here?” He then denies the connection. Contrary to Sen’s contention, however, transcendental institutionalism provides evaluative criteria for making comparisons and the fact that Rawls is able to make so many comparisons is a testament to this fact; the lack of connection between the theories is not merely not obvious, but likely refutable. 76
Id. at 231. 77
RAWLS, supra note 73, at 11-­‐12. 78
The capability approach demands consideration of responsibility towards the future of other species that are threatened with destruction, but Sen does not focus on future generations; SEN, supra note 3, at 251. 79
Id. at 101. 80
Id. at 97. 2012] Sen’s The Idea of Justice 65 Sen’s emphasis on comparison may be part of a larger trend in political philosophy. T.M. 81
Scanlon, who reviewed The Idea of Justice before its publication and is one of Sen’s main interlocutors, is also currently working on a comparative political philosophy project, suggesting that genuinely egalitarian arguments (for equality, not justice) are comparative 82
in nature. Sen takes a different approach to the fact of reasonable pluralism than Rawls. Rather than looking for what reasonable people can agree to, he expects a plurality of reasonable positions to survive, each of which can simultaneously support a given end. He believes that the reason for acting in a way, though important, is less pressing than ensuring certain action. It is thus unclear to me why one pluralist vision cannot be the Rawlsian vision. After all, Rawls himself suggests that it is not a comprehensive framework, only a political one, and is intended to coexist alongside religious and other viewpoints. Even if one accepts that the Rawlsian position is transcendental, it is difficult to accept that it is redundant. D. Conclusion Ultimately, Sen is right to point out that “no matter where our theories take us, we all have reasons to be grateful for the recent intellectual animation around them, which has been, 83
to a great extent, initiated and inspired by John Rawls.” In The Idea of Justice, Amartya Sen offers an alternative to the Rawlsian conception of justice and makes several strong criticisms of the Rawlsian project. His comparative conception of justice uses the capabilities of individuals as the measure of just distribution, in contrast to the Rawlsian transcendental idealist conception of justice relying on institutions for the background conditions of justice and using primary goods as a distributive measure. Despite my reservations about some of Sen’s views on Rawls, I am certainly grateful for his contribution to the literature. He makes a powerful argument for the importance of comparison. While my own commitment to pluralism would have the ideal project coexisting alongside the comparative project, Sen makes a compelling argument for the importance and priority of the latter. The project is not merely a reaction to Rawls, but also provides keen insights into the nature of human rights. Sen’s discussion of human rights as justice is commendable and bridges the theoretical and practical elements of his text in a manner not found in other sections. While primarily valuable as a piece of political philosophy, The Idea of Justice also 81
Id. at xxvii. 82
Tim Scanlon, When Does Equality Matter?, presented at a legal theory workshop at the University of Toronto on 22 October 2010. 83
SEN, supra note 3, at 413. 66 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
has a great deal to offer to human rights activists and scholars. I look forward to reading his explicit, empirical comparisons of different political orders. Developments Book Review—Eric A. Posner’s The Perils of Global Legalism (2009) By Heather Cohen* [ERIC A. POSNER, THE PERILS OF GLOBAL LEGALISM (The University of Chicago Press, 2009); ISBN: 9780226675742; 266 pp.; $29.00 Hardcover] A. Introduction th
On January 25 2011, the unthinkable occurred— following protests in Tunisia, Egypt exploded into a revolution that saw the resignation of a thirty-­‐year dictator and an entirely new regime. While many in the international academic community may have been surprised by this result, Professor Posner, author of The Perils of Global Legalism, would not have been shocked by one aspect of the crisis: the international community’s response, or, more specifically, its lack thereof. In the age of global terrorism, “President” Hosni Mubarak was an important American ally in the “fight on terror.” Despite the alleged human rights violations committed by Mubarak and his supporters, President Obama was unable to do little more than ask that the Egyptian government explain itself and respect 1
the rights of its citizens. This minimal response in the face of outright human rights abuses is a classic example of the limits of international law, limits that Posner highlights in his text. Professor Posner teaches law at the University of Chicago, and has published extensively on international law. His background is in rational choice and, with his emphasis on global collective action problems, much of his analysis is based in this theory. He concludes that the international rule of law is purely idealistic, and that to be truly effective, international law requires a world government that is, in his frank words, “no more plausible today than 2
[it] ever [has] been in the past.” Part A of this book review provides a synopsis of The Perils of Global Legalism. In Part B, I offer a critical analysis of the text. Through my comments, I aim to highlight some of the *
JD Candidate, University of Toronto Faculty of Law. Email: [email protected]. 1
Egypt Protests: Obama Sharply Questions Mubarak Pledge to Stay in Power, THE HUFFINGTON POST, Feb. 10, 2011, available at: http://www.huffingtonpost.com/2011/02/10/egypt-­‐protests-­‐obama-­‐mubarak_n_821736.html (last accessed: 23 December 2011). 2
ERIC A. POSNER, THE PERILS OF GLOBAL LEGALISM 38 (2009). 68 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
problems and biases in Posner’s defeatist attitude. Although there is much merit to his criticisms of global legalism, he offers no alternatives. Despite the dangers of a world that relies on international law, a world without it seems both practically and ethically, infinitely worse. I. The Perils of Global Legalism: A Synopsis The thesis of the text is that there is a current trend in international legal academia towards global legalism, which Posner defines as, “an excessive faith in the efficacy of 3
international law.” Professor Posner argues that for American scholars, this faith has developed out of the belief that international law is so valuable that when conducting a cost-­‐benefit analysis for the purpose of deciding whether to violate it, there is such a strong presumption in favour of it that “for all practical purposes, it may never be 4
violated.” For European scholars, this faith arises from the intrinsic ethical value of international law. These academics believe that international law transcends state 5
interests. Posner criticizes both of these views in his book. In the first part, he focuses on a theoretical critique of global legalism. In the second half, he adds a practical dimension by analyzing the failures of international adjudication, tribunals, courts, and litigation to promote a world of accountability and international law. In the first chapter, Posner describes a number of collective action problems, including war, pollution, overfishing, disease, and terror. He explains how domestic governments are able to combat these problems because of their monopoly on force and loyalty which they can exercise through various institutional mechanisms that are lacking in international law. He argues that the global collection of states is too extensive and diverse to overcome competing interests and form the institutions necessary to create a world government. This is the basis of his critique of global legalism: he posits that international legal institutions are futile without the governmental institutions needed to support them, and since these institutions will never be formed, international law is no more than a sham to hide states’ own interests. Posner spends the remainder of the first chapter detailing the various solutions to global collective action. Political integration, or a world government, will fail because of the heterogeneous nature of the planet’s population. Economic integration, the creation of a world market, will also be ineffective given that states continue to refuse to cooperate with one another, despite the acknowledged advantages of doing so. Ideological 3
Id. at xii. 4
Id. 5
Id. at xii. 2012] Posner’s The Perils of Global L egalism 69 integration, or “the universal adoption of a set of beliefs that define collective action 6
problems out of existence,” will likewise fail, first and foremost because dissatisfied individuals will always turn to other ideologies. Furthermore, the world will still be composed of independent actors who may have difficulty cooperating despite their common subscription to democratic principles. Hegemony, or the domination of one or more states, is unrealistic, because there are currently no states powerful enough to act as hegemons, and in any case, many scholars take offence to its distributional effects. Posner concludes the chapter with a description of how legalism, i.e. the use of international law, might solve global collective action problems, thus preparing the reader for the critique of global legalism with which the remainder of the book is concerned. Professor Posner uses the second chapter to delve more specifically into the flaws of global legalism since it is this “solution” to collective action problems that seems to have been adopted by the majority of international legal scholars. He explains that international law suffers from a number of institutional weaknesses: the lack of a legislature and enforcement mechanisms, the minimal jurisdiction of international courts, and its complete lack of legitimacy. This deficiency in legitimacy results partly from the aforementioned non-­‐existence of enforcement mechanisms and minimal jurisdiction of international courts, but Posner clarifies that it also comes from the perceived biases in the international legal system. He states that for law to be perceived as legitimate, it is at least required that those governed by it must “believe that the law does good – serves their 7
interests or respects and enforces their values.” He argues that because international law functions pursuant to state consent, it can be easily manipulated and so will not be perceived as good, thus losing its legitimacy. In the third chapter, Posner takes an in depth look at some of the defences of global legalism and highlights the flaws in each of them. He argues that Harold Koh’s theory of transnational legal process and Anne-­‐Marie Slaughter’s theory of networking do not explain “how and when non-­‐state actors [specifically non-­‐governmental organizations and 8
international legal institutions] cause compliance with international law.” Both these theories suggest that such entities somehow cause states to comply with international law. Posner takes his critique of Koh and Slaughter one step further, holding that “nonstate actors in the aggregate do not have a clear incentive to pressure governments to comply 9
with international law, per se.” He then offers a number of examples to uphold his 10
claims. Posner also finds fault with these theories because they are based on the 6
Id. at 8. 7
Id. at 35. 8
Id. at 41. 9
Id. at 42. 10
Id. at 58-­‐70. 70 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
disaggregation of the state, meaning that policy decisions are analyzed “in terms of the 11
many individuals and entities that make them and influence them.” Such a model is much more methodologically complex than the unitary state model according to which analysis 12
“a state making a decision” is treated “as though it were a conscious being.” He concludes that “[t]oo much methodological complexity renders prediction-­‐making 13
impossible,” and that there is simply too little data to work with when analyzing disaggregated states. Posner uses chapter four to explain the impact of two global phenomena on global legalism: globalization and fragmentation. Global legalists tend to view these trends in a positive light because they weaken state sovereignty and thereby make powerful states more amenable to international law. However, Posner claims that international law 14
actually “depends on powerful national governments and cannot exist without them.” 15
State fragmentation makes cooperation more difficult. While he acknowledges that the cooperation present in the European Union seems somewhat problematic for his theory, he finds that its existence only highlights the limits of a potential global government. 16
Regional cooperation may be possible, but it will never exist at the international level. In chapter five, Professor Posner analyzes the interplay between domestic and international law. He focuses on the incorporation of international law into domestic law which results from the deference granted by domestic courts to international judicial systems. To this seeming strengthening of international law, Posner responds with the usual critique of American Conservative legal scholars, such as Alexander Bickel, claiming that courts are by their nature, undemocratic. He later explains that while elected officials represent the public and agencies have expertise, “Judges are generalists who lack 17
expertise, sensitivity to public concerns, and democratic legitimacy.” As a result, they must rely on the knowledge of the lawyers appearing before them who set out to represent only the interests of their clients, and not the public at large. With chapter six, Posner switches to the practical problems of global legalism. He provides a history of international adjudication, including a detailed critique of the International 11
Id. at 41. 12
Id. 13
Id. at 71. 14
Id. at 81. 15
Id. at 99. 16
Id. at 92-­‐94. 17
Id. at 224. 2012] Posner’s The Perils of Global L egalism 71 Court of Justice (ICJ), concluding that “it has done little more than offer a modest 18
alternative to interstate arbitration.” Posner claims that it is the lack of enforcement mechanisms which have rendered the ICJ all but useless. Rather than accept that the ICJ’s ineffectiveness means the end of international law, Posner claims that global legalists have responded by placing their hopes in more specialized courts with more limited jurisdictions. In chapter seven, he examines this fragmentation. He undertakes an analysis of the Inter-­‐American Court, the World Trade Organization and its precursor, the European Court of Human Rights, the European Court of Justice, and The Law of the Sea Tribunal. He concludes that “courts do best when they exist in a political community that is thickly institutionalized (the ECJ) or when they have 19
limited jurisdiction and remedial power (GATT/WTO).” Posner spends the remainder of the chapter discussing the rebirth of arbitration, analyzing its costs and benefits, and finding that its episodic nature explains why most global legalists choose to turn instead to international courts. In chapter eight, Posner traces the history of human rights and international criminal law. He finds that although “[t]he legalistic version is the official ideology” behind these regimes, by which he means that international and criminal law are justified on a legal 20
basis, “the security version is the actual explanation.” Posner concludes that it is security concerns which explain the international criminal prosecutions that have occurred and why there are so few enforcement mechanisms for international human rights law. In the ninth and final chapter, Posner analyzes the international litigation that takes place in domestic courts, particularly that under the Alien Tort Statute in the United States. Posner finds fault with this litigation, again arguing that it constitutes a form of policy-­‐
making by undemocratic courts, and so is illegitimate, particularly in the context of 21
addressing international concerns. II. The Perils of Global Legalism: A Commentary For those readers unfamiliar with the criticisms of international law, Posner’s text is an excellent read. It collects the most current of these critiques and organizes them in a clear, logical, and easy-­‐to-­‐follow format. Moreover, he adds superior reasoning skills and some empirical data to many of these supposed flaws in international law, making them much 18
Id. at 149. 19
Id. at 164. 20
Id. at 205. 21
Id. at 225. 72 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
more convincing. Posner’s analysis of the problems with international law is much more comprehensive and filled with real world examples, such as his characterization of the war in Iraq. Nonetheless, The Perils of Global Legalism does suffer from a number of issues. Perhaps the biggest noticeable gap in Posner’s work is that he does not offer an alternative solution to global legalism. He acknowledges that there are some benefits to international law, but spends the entire book explaining why it will not work without a world state. If Posner proposed some means of creating this state, then his conclusions might not be so defeatist, but he does not do so. He simply concludes that such a state will never be formed. What does this mean for international law? Are we doomed to the half-­‐hearted, easy-­‐to-­‐manipulate system that currently exists? Must we undo globalization? It could very well be that Posner does not intend to offer us an alternative solution, and that his book is meant to be purely defeatist. However, Posner himself seems to reject this characterization of his work, arguing that “[t]he book is not entirely negative about 22
international law.” Rather, he meant for it to explain “that international structures that assume good will and global consensus are bound to fail, and that nations should concentrate on less ambitious forms of international law that take seriously the national 23
interests of states and the limited forms of cooperation that are possible.” Still, based on the text, what these forms of law are and what this will mean for international law more generally is pure conjecture. Another issue with The Perils of Global Legalism is that it can, at times, be very speculative. For instance, in his critique of Posner’s work, Joel Trachtman finds this exact fault with of one of the book’s major premises. Trachtman disagrees with Posner that “an increased 24
number of states [means] that effective international law is less likely.” Trachtman highlights that Posner offers no “theoretical or empirical evidence” for such a claim, and argues that it is thus just “as plausible that the level of cooperation would remain the 25
same, or increase, as it is that it would decline.” Moreover, he finds that even if Posner is right, it is pure theorizing as to how many states there will need to be to have any serious 26
impact. The book also becomes quite speculative where Posner undertakes an analysis of 22
Eric Posner, Eric Posner on his Book The Perils of Global Legalism, ROROTOKO, NOV. 2, 2009, available at: http://www.rorotoko.com/index.php/article/eric_posner_book_interview_perils_global_legalism (last accessed: 23 December 2011). 23
Id. 24
Joel P. Trachtman, Book Reviews: Eric A. Posner. The Perils of Global Legalism, 20 EUROPEAN JOURNAL OF INTERNATIONAL LAW 1263, 1267 (2009). 25
Id. at 1268. 26
Id. 2012] Posner’s The Perils of Global L egalism 73 27
the economic impact of Alien Tort Statute (ATS) litigation. He uses ATS litigation as an example of an approach that environmental rights groups might use in the climate change debate, but in order to do so, he makes so many assumptions that the exercise becomes almost wholly superficial. Should Posner spend more time offering an alternative to global legalism and providing more concrete data for his arguments, the above criticisms are reparable. Where Posner’s argument becomes especially problematic is in his seeming inability to differentiate 28
between the domestic and the international. In the fifth chapter, he notes that the implementation of international law is wholly reliant on domestic courts, so that “there is no ‘international law’ extant, in the sense of controlling the state, apart from domestic 29
decisions about compliance.” This conglomeration of international and domestic law ignores the evolution of international law, and, particularly, those international institutions which have grown strong in their own right. When asked about this grouping of the domestic and the international, he justified it as a natural one given the lack of state interference in the personal lives of its citizens, which he took to mirror the lack of 30
international regulation of states. Even accepting Posner’s reasoning, it does not follow that the comparison is a logical one. State governance of citizens is based on an entirely different premise than international governance of states, unless one views the entire world as one large state, but this would be a very circular argument. Posner would essentially be claiming that global legalism is ineffective without a world state to enforce it from the perspective that looks at the world as if it should be governed by a state. Furthermore, Posner’s basic premise is flawed: it assumes an American political system, that is, a liberal democracy with minimal state interference. One could hardly argue that the Cuban or even the Canadian government does not interfere in the lives of its citizens. The international legal system is not structured in the same way as the American political system. As an American legal scholar, it is natural that he would have this bias, however not only does he never attempt to rectify it, but he never even acknowledges it. By assuming that international law is meant to mirror American law, Posner’s critique loses much of its value. While it is generally acknowledged that there are numerous flaws with international law, its inability to replicate the American political system is not one of them. It is in this American bias that another of Posner’s more problematic arguments is based, namely, his critique of global legalism as no more than an international form of judicial 27
See THE PERILS OF GLOBAL LEGALISM, supra note 2, at 207-­‐225. 28
Benedict Sheehy & Donald Feaver, The Perils of Global Legalism, 20 LAW & POLITICS BOOK REVIEW 503 (2010), available at: http://www.lpbr.net/2010/09/perils-­‐of-­‐global-­‐legalism.html (last accessed: 23 December 2011). 29
Id. at 504. 30
Eric Posner, supra note 22. 74 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
activism. As discussed above, Posner seems to take it for granted that in order to function, any global world order must be structured precisely the same way as the American political 31
system, the only truly democratic regime in the world. His fear of judicial activism comes from this problematic premise. The American political system is structured around the fear that non-­‐democratic judges 32
will use their position, and the court system, to influence American policy. As a result, Americans can elect their judges, and are highly critical of their decisions. Such a fear has also given birth to the “political questions” doctrine, namely the finding that an issue is too political to be justiciable. This is, however, an American concern that arises out of the specific wording of the American Constitution, in particular, its limitation on the Supreme Court’s jurisdiction such that it can only adjudicate matters which constitute a “case or 33
controversy.” The doctrine has been rejected by courts as diverse as the International 34
35
Court of Justice, the Supreme Court of Canada, and even the Israeli High Court. Nonetheless, according to some critics’ understanding of Posner, the peril of global legalism is simply “that it is perilous to place one’s hope on conservative out of touch 36
judges applying rules of questionable legitimacy to remedy global problems.” There are two inherently problematic premises in this argument: the first is that it is not clear that judicial activism is entirely negative, and the second is that even assuming judicial activism is problematic, it is not clear that it functions in the same manner at the international level. While this is not the place to begin a heated debate about the costs and benefits of judicial activism, it is sufficient to note that this is a largely American concept, and that it is hotly debated, and therefore not to be blindly applied in the international context, particularly given that there is no world constitution which limits justiciability in a similar manner. One final criticism of The Perils of Global Legalism is in its treatment of states. Although in his discussion of the disaggregated states theory Posner acknowledges that states consist of multiple actors, he ultimately rejects this theory, and consequently analyzes states from a purely unitary perspective. Such an approach seems somewhat strange and antithetical to his acknowledgment of the ethical aspects of international law, in particular his 31
Sheehy & Feaver, supra note 28, at 503. 32
One of the main proponents of this view is Justice Antonin Scalia of the United States Supreme Court. See for instance, his dissent in Morrison v Olson, (1988) 487 US 654. 33
See US Const. art. III, s.2: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution….to Controversies….” 34
Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441. 35
SOLON SOLOMON, THE JUSTICIABILITY OF INTERNATIONAL DISPUTES: THE ADVISORY OPINION ON ISRAEL’S SECURITY FENCE AS A CASE STUDY (2009). 36
Sheehy & Feaver, supra note 28 at 508; see also Trachtman, supra note 24 at 1269. 2012] Posner’s The Perils of Global L egalism 75 acknowledgment that many scholars see international law as a means to introduce ethics into international politics. After all, it is not states which observe ethics, it is individuals. It is at this individual level that one might be able to explain and justify international law, such as human rights. Here Posner might be able to benefit from looking at the work of 37
international human rights scholars such as Jack Donnelly to add depth to his argument, and perhaps develop an alternative to global legalism that continues to incorporate the ethical aspect of international law. B. Conclusion Egypt’s population was being abused by its own government while the international community did almost nothing despite numerous international laws and institutions which should have brought about some kind of action. Here is an example of the triumph of politics over international law; a triumph which Professor Posner expects will be consistently repeated. The response of the international community to the so-­‐called “Arab Spring” demonstrates the limits of global legalism. However, this does not render global legalism perilous, as Posner would have us believe. Just as the occasional failures of domestic criminal law do not result in calls for its elimination, neither should the failures of international law. While The Perils of Global Legalism provides an excellent and thorough summary of the current problems facing international law, without providing any alternatives, it is of limited use. What is more, its strong American biases mean that many international legal 38
scholars might hesitate to take many of its arguments seriously. I would like to see Posner engage more with some of the ethical arguments in favour of global legalism, such as the need for international human rights protections, in order to create a suitable alternative. 37
38
nd
JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY & PRACTICE (2 ed., 2004). See for instance, Harmen Van Der Wilt, Bilateral Agreements Between the United States and State Parties to the Rome Statute: Are they Compatible with the Object and Purpose of the Statute, 18 LEIDEN JOURNAL OF INTERNATIONAL LAW 93 (2005). Developments Review Essay — Do Treaties Matter? Beth Simmons’ Mobilizing for Human Rights: International Law in Domestic Politics (2009) By Virgílio Afonso da Silva* [BETH SIMMONS, MOBILIZING FOR HUMAN RIGHTS: INTERNATIONAL LAW IN DOMESTIC POLITICS, (CAMBRIDGE UNIVERSITY PRESS 2009); ISBN: 9780521712323; 468 pp; £21.99; Paperback] A. Introduction Treaties not only reflect, but also alter politics. This straightforward statement, which could be considered as one of the fundamental principles developed in Beth Simmons’ book, Mobilizing for Human Rights: International Law in Domestic Politics, attempts to accommodate two opposite views in the discussion of the role of treaties in international and domestic politics. On one side are those who argue that treaties alone have no concrete effects on domestic politics, or on the degree of respect for human rights in any given national state. Let us call them skeptics. On the other side are those who think treaties to be a kind of magic wand, something hovering above, capable of changing politics in the blink of an eye. Let us call them believers. A major achievement of Simmons’ book is that it does not simply argue for a mean between these two extremes. Taking this position would be almost as easy as identifying with the skeptics or believers. Arguing for a solution between two extremes is not valuable on its own. What is different about Simmons’ book is the impressive amount of data used to ground her arguments. If human rights treaties really matter, one is compelled to ask “under what conditions?” and “to what extent?” Simmons’ attempt to answer these questions is quite successful. It is no easy task to review such a dense book in a few pages. Below, after briefly presenting the structure of the book, I will try to analyze what I consider to be the core of Simmons’ argument. Although the theoretical background of the reviewer necessarily biases every review, it may be worth noting at the outset that not only my conclusions, but also the issues I chose to discuss strongly reflect this background. What is more, this background is completely different from that of the author herself and, I suppose, from that of the main target *
Professor of Law, University of São Paulo, Brazil. In review articles there is usually no place for acknowledgments, but since this text was written during a research stay at Humboldt University of Berlin, I would like to thank my academic host, Dieter Grimm, and the Humboldt Foundation, which awarded me a Humboldt Research Fellowship for Experienced Researchers. Email: [email protected]. 2012] Beth Simmons’ Mobilizing for H uman R ights 77 audience of the book. I am neither a professor of international affairs or of international law, nor an international human rights activist, nor someone from an English speaking country or region. As a professor of constitutional law, my concerns with human rights are focused above all on the domestic realm (i.e. on basic constitutional rights). However, I think that this “foreign reading” may offer a unique perspective. I am convinced that a different background is useful for exploring certain issues that internationalists sometimes take for granted. As a matter of fact, I will analyze some of Simmons’ arguments that other 1
reviewers – who somewhat share the author’s theoretical and cultural background – found convincing and persuasive, but which, from the constitutional point of view, are problematic. B. The Structure and the Arguments of the Book Simmons’ book is organized in two parts. The first part is rather historical and theoretical. Simmons manages to be both accessible and dense. The reader is conducted through the th
history and foundations of international law and international affairs throughout the 20 century (especially after World War II) and, at the same time and without any noticeable break, is also confronted with the most complex commitment and compliance issues. Simmons’ writing style gracefully shifts from basic to complex issues, thus easing the reader’s task. She has succeeded in writing a book that will be read, surely with the same degree of understanding, by a highly varied audience, from international lawyers to human rights activists, from the layperson to the university professor. The first part of the book is divided into four chapters. Chapter 1 is an overall introduction to the book. After reading it, one already knows not only how the book is organized, but also (and more importantly for understanding the book) the main questions it addresses. Chapter 2 presents the historical background of international relations and international th
law during the 20 century, which explains why Simmons focuses her work on treaties and international law. As she herself puts it, the main questions addressed in this chapter are 2
“Why rights? Why a legal regime? And why at mid-­‐twentieth century?” Chapters 3 and 4 are the core of the first part of the book. Both deal with the questions that will guide the second, rather empirical part. These questions are: “Why commit?” and 1
See Elizabeth Bloodgood, Book Review: Beth Simmons, Mobilizing for Human Rights, 125 POLITICAL SCIENCE QUARTERLY (PSQ) 521 (2010); David Cingranelli, Book Review: Beth Simmons, Mobilizing for Human Rights, 32 HUMAN RIGHTS QUARTERLY (HRQ) 761 (2010); Emilie M. Hafner-­‐Burton, Book Review: Beth Simmons, Mobilizing for Human Rights, 104 AMERICAN JOURNAL OF INTERNATIONAL LAW (AJIL) 538 (2010); Hans Peter Schmitz, Book Review: Beth Simmons, Mobilizing for Human Rights, 8 PERSPECTIVES ON POLITICS 994 (2010). 2
BETH SIMMONS, MOBILIZING FOR HUMAN RIGHTS: INTERNATIONAL LAW IN DOMESTIC POLITICS, 17 (2009). The title of Chapter 1 is “Why International Law? The Development of the International Human Rights Regime in the Twentieth Century.” 78 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
“Why comply?” Although both chapters are titled in a rather theoretical tone – “Theories of Commitment” (Chapter 3) and “Theories of Compliance” (Chapter 4), one should not expect highly abstract theorizations on these subject matters. Simmons’ down-­‐to-­‐earth approach is especially noticeable in these two chapters. In Chapter 3, Simmons analyzes why countries commit, i.e., why countries ratify or do not ratify human rights treaties. The most interesting element in the answer to this question is the existence of what she calls “false negatives” and “false positives.” A simplistic and naive approach to the question “Why countries ratify or do not ratify?” would simply contend that countries ratify because they believe in the values expressed by the human rights and are committed to realize these values through domestic legislation, public policies and other means, whereas those countries that do not ratify do not believe in these values and/or have no interest (political, economic or other kind) in realizing them. Simmons convincingly demonstrates that this clear-­‐cut, commonsense explanation is unsound. According to her, there are countries that do not ratify some (or most) treaties, even though they support the values these treaties express (so-­‐called false negatives), and there are countries that ratify those treaties, although they either do not share those values or do not have any interest in realizing them, or both (so-­‐called false positives). One of the major challenges of the book is to explain these false negatives and false positives, a challenge to which I will return. In the last chapter of part I (Chapter 4), Simmons deals with the question “why [do] states comply?” Here, again, she challenges what she calls “the common wisdom,” according to which governments comply when it is in their interest to do so and, conversely, do not comply if it is not in their interest to do so. She presents and explores other possible paths of compliance, such as the agenda-­‐setting influence of human rights treaties, the leverage of litigation, and group demands and mobilization, issues to which I will also return. The second part of the book is dedicated to the empirical approach. As Simmons herself states, the first four chapters of part II are “the empirical climax of the study.” In this second part, Simmons “tests” her arguments through six case-­‐studies, which deal with some ratification and compliance issues of five of the most important multilateral human rights treaties: the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of Racial Discrimination (CERD), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (CAT), 3
and the Convention on the Rights of the Child (CRC). Since it would be impossible to engage an in-­‐depth analysis of all the rights guaranteed in all these treaties in all the 3
Simmons mentions that her ideas will also be tested on the International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3 (see Simmons, supra note 2). However, this treaty plays, if any, a very marginal role in her study. 2012] Beth Simmons’ Mobilizing for H uman R ights 79 countries of her database, the four chapters of the second part of the book focus either on an extensive quantitative analysis of selected rights – for instance, religious freedom, fair trial and the banning of death penalty (from the ICCPR), and the elimination of child labor (from the CRC); or on selected concrete experiences in some countries – especially Japan and Colombia (CEDAW), and Israel and Chile (CAT). For the sake of space, I will not discuss the four case studies she presents in the second part of the book. C. Comments In the following sections, I will analyze a few selected issues, at some length. My comments try to challenge some aspects of Simmons’ main arguments. As one may easily notice, these challenges do not dispute her arguments entirely, but rather question some suppositions and implications behind them. This means that even if one agrees with my presented challenges, this does not lead to a refutation of any of Simmons’ theses as a whole. Maybe these points can simply encourage other research on these matters. I. Explaining False Positives and False Negatives As mentioned above, one of the most important achievements of the book is its successful attempt to explain most cases of false positives and false negatives. Especially in the cases of false positives – which have puzzled many authors for a long time – Simmons explores all possible reasons a state may have for ratifying a treaty even without expecting to 4
comply or without having “a strong normative commitment to the contents of the treaty.” As Simmons argues, whatever reason really applies, all cases of false positives have something in common: “[t]he expected value of ratifying must exceed the costs the government expects to incur….at least within the time frame relevant to the decision 5
maker.” Based on this assumption, Simmons refers to three main reasons for false positives: (i) governments may expect some benefit offered by promoters of the human rights regime; (ii) governments may be uncertain about the consequences of ratifying and may sometimes even miscalculate them; (iii) governments may have short horizons, i.e., they may be willing to hazard a future (and usually uncertain) pressure to comply, if short-­‐
term benefits appear to be worth the gamble. 6
Much more complex are the explanations for the false negatives. I will use the example of American exceptionalism to sum up some issues concerning Simmons’ explanation for 4
Simmons, supra note 2, at 76. 5
Simmons, supra note 2, at 77. 6
Here, I admit a certain bias, by virtue of my national, constitutional perspective. Internationalists seem to be much more puzzled by the cases of false positives. See for instance, Hafner-­‐Burton, supra note 1, at 539. 80 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
false negatives. American exceptionalism, i.e. its unwillingness to ratify several treaties is 7
8
well known. In my view, however, Simmons (and some reviewers of her book) took some exclusively formal justifications for exceptionalism for granted and lost the opportunity to go further in the analysis of one of the most important cases of false negatives in the world. As in the case of false positives, Simmons considers three main reasons for false negatives: 9
10
(i) the existence of legislative veto players; (ii) federal arrangements; (iii) judicial 11
institutions and integration costs. It is easy to notice that, while the reasons for false positives are mostly substantial, the reasons for false negatives are above all institutional. These three main (institutional) reasons for false negatives may be summed up as follows: presidential systems, federal systems, and common law systems make ratification more difficult. Coincidentally or not, the United States seems to be the only country in the world 12
to have simultaneous presidential, federal, and common law systems in place. Arguably, these institutional features (presidentialism, federalism, common law) may, in some specific cases, slow down the ratification process. Nevertheless, none of them are, as such, an impediment or too high a hurdle. Taking for granted that these features explain American exceptionalism is an unjustified move, since this exceptionalism is grounded rather on historical, substantial and political reasons than on such institutional features. Therefore, it seems to be an oversimplification to conclude that the United States is usually unwilling to ratify human rights treaties simply because “its federal structure, supermajority ratification procedures, and highly independent and accessible courts go a 13
long way toward raising the ex ante political cost of ratification.” In the following 7
For instance, the United States’ refusal to ratify the American Convention on Human Rights (Pact of San Jose), the Convention on the Elimination of All Forms of Discrimination against Women, and the Convention on the Rights of the Child (besides Somalia, the United States is the only country that did not ratify the CRC). For more details on this and also on other meanings of the expression "American exceptionalism," see Michael Ignatieff, Introduction: American Exceptionalism and Human Rights, in AMERICAN EXCEPTIONALISM AND HUMAN RIGHTS 1 (Michael Ignatieff ed., 2005). 8
See for instance, Hafner-­‐Burton, supra note 1, at 539. 9
Simmons, supra note 2, at 68. 10
Id. at 69. 11
Id. at 71. 12
The only other possible example would be Nigeria, a presidential and federal country. However, the common law system in Nigeria is mixed with religious elements. See Yemisi Dina, John Akintayo & Funke Ekundayo, Guide to Nigerian Legal Information (2010), available at: http://www.nyulawglobal.org/globalex/Nigeria1.htm (last accessed: 23 December 2011). 13
Simmons, supra note 2, at 18. 2012] Beth Simmons’ Mobilizing for H uman R ights 81 paragraphs, I will briefly analyze the federalism and the common law arguments. Further on, I will discuss (although with different objectives) the presidentialism issue. Federalism: The assumption that federalism may prevent ratification supposes that, for any reason, subnational players are less prone to accept the values of human rights than national players may be. I cannot imagine why this could be so, with the exception of those cases in which ratifying a treaty implies an erosion of prerogatives of sub-­‐national 14
entities. In all other cases, if sub-­‐national players are less prone to accept the values of human rights, the reason for not ratifying can only be substantial, not institutional. In the same sense, it is not quite accurate to assume that “international human rights agreements that rest on universalistic principles are likely to come into tension with 15
cultural specificities that federal systems are often designed to protect,” since this assumes an almost monolithic concept of federalism, which does not hold in many cases. Common Law: Although common law structures may indeed “tend to take a cautious 16
approach to international legal obligations” , especially because treaties “challenge the very concept of organic, bottom-­‐up local law designed to solve specific social problems” and are therefore “the philosophical and cultural antithesis of judge-­‐made, socially 17
adaptive, locally appropriate precedent,” we should not overemphasize the differences between common and civil law. As a matter of fact, Simmons is aware of the thesis advanced by several authors that the civil law/common law divide is less sharp than it was considered to be long ago, but she nevertheless does not accept that this convergence between both systems applies to the United States. She concedes that “[s]ome scholars have argued that the distinction between common and civil law systems has eroded over time,” but adds that “this argument may apply more to Britain and France than to their 18
former colonies.” Although it would be impossible here to make an in-­‐depth analysis of the differences and convergences between the two systems, it is nevertheless worth noting that, at the constitutional level, the American system, with its written constitution and judicial review of legislation, is much more similar to civil law systems than to the constitutional system of Britain, for instance. Thus, if it is true that a treaty is a kind of 19
“code,” and that the idea of code is the foundation of civil law systems, it is not less true that, at the constitutional level, the United States has the oldest “code” in the world: the American constitution. Additionally, the subject matter of human rights treaties is nearer 14
As it would be the case for the death penalty in the United States. See Simmons, supra note 2, at 69. 15
Simmons, supra note 2, at 70. 16
Id. at 72. 17
Id. at 15. 18
Id. at 77. 19
Id. at 72. 82 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
to the constitutional Bill of Rights than to the civil or other codes. It is thus possible to argue that, at least in the human rights realm, the idea of a national code is represented by the constitution rather than by other national codes of ordinary law. And if this is true, the United States has a national code of human rights in the same manner as every country in the world with a written constitution. There would be, therefore, nothing alien in judges interpreting and applying a top-­‐down code of human rights (a treaty), since they have been doing this for more than two-­‐hundred years by applying the American constitution and by exercising the judicial review of legislation. II. Agenda Setting and Litigation One of the most interesting arguments provided in the first part of the book is the strong 20
relation that Simmons establishes between domestic politics and treaty compliance. According to her argument, external enforcement mechanisms are likely to be quite weak in securing compliance and the real potential for change lies at the domestic level. She thus analyzes the impact of treaties “from the perspective of actors who may want change 21
in rights policies and practices.” These actors are the executive, the judiciary, and citizens. I consider this to be the most promising part of the book, not only for the arguments as such, but especially because of their potential to boost new research. Although by and large I agree with Simmons’ arguments concerning the (sometimes under-­‐explored) potential of treaties in these three areas, in the following paragraphs I will attempt to provide additional points-­‐of-­‐view on some issues. The first one is related to the power of treaties to “alter the domestic agenda and to 22
empower particular branches of national policymaking.” The core of her argument is: It is one thing not to initiate policy change on the national level and quite another not to respond once a particular right is made salient through international negotiations. Silence is ambiguous in the absence of a particular proposal, but it can easily be interpreted as opposition in the presence of a specific accord. The ratification decision affects the set of policy options facing a government, potentially shifting rights reform 20
Id. at 125. 21
Id. at 126. 22
Id. at 127. 2012] Beth Simmons’ Mobilizing for H uman R ights 83 to a higher position on the national agenda than it 23
might otherwise have occupied. 24
The argument is sound, and the examples Simmons uses are also convincing. What I think is less convincing is her focus on the executive power in presidential systems. She claims that “[i]n presidential systems, treaties can have even more significant independent 25
agenda-­‐setting effects.” Here, again, the American perspective may have obfuscated the analysis. Though it is true that in older presidential systems (like the American one), the president has, very little, if any, agenda-­‐setting powers or powers to initiate the lawmaking process, this is not a necessary feature of presidential systems, but rather a characteristic of the American (and of course other) systems. In several presidential countries, especially 26
those with newer constitutions, the president is the main agenda-­‐setter. Of course, this does not invalidate Simmons’ argument. What I wish to stress is that, in contemporary constitutionalism, the differences between parliamentary and presidential systems are not as clear as the case of the American presidentialism may suggest. If this is so, then Simmons’ conclusion – “We might . . . expect more legislative innovation upon ratification in presidential systems than in parliamentary ones. It is in the former that treaties significantly enhance the power of the executive to propose legislative rights reforms” – should at least be put in perspective. As far as the leverage of litigation is concerned, Simmons argues that individuals and groups who use explicit treaty commitments in courts “are holding governments accountable for their human rights behavior,” since the possibility of litigation “changes a 27
government’s calculation with respect to compliance.” Moreover, she argues that treaties “can provide new tools for litigation that might not have existed in the absence of 28
treaty ratification.” 23
Id. at 128. 24
Among other examples, she argues, for instance that “[a] sympathetic government might not have wanted to spend the political capital to raise the issue of the death penalty, but the existence of the second optional protocol of the ICCPR raises the question of whether the government wants to go on record in this regard.” Simmons, supra note 2, at 127. 25
Simmons, supra note 2, at 128. 26
For the case of Latin America, see for instance, Gabriel L. Negretto, Government Capacities and Policy Making by Decree in Latin America: The Cases of Brazil and Argentina, 37 COMPARATIVE POLITICAL STUDIES (CPS) 531 (2004); Joseph M. Colomer & Gabriel L. Negretto, Can Presidentialism Work Like Parliamentarism?, 40 GOVERNMENT AND OPPOSITION 60 (2005). 27
Simmons, supra note 2, at 130. 28
Id. at 131. 84 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
Although this may be true, it would have been interesting to differentiate negative rights (liberties) from positive rights (for instance, socioeconomic rights). I am aware that this distinction is quite polemical. In any event, regardless of accepting this distinction, it is a fact that judicial activity is different depending on the rights at stake. For reasons that cannot be analyzed here, the effectiveness of judicial activity is much higher if what is at stake are liberty rights rather than socioeconomic rights. The litigation in the area of socioeconomic rights is much more problematic, and it is very controversial whether courts can bring about any social change. Therefore, the assumption that a higher level of 29
litigation is always positive is perhaps not ideal. III. Legislation and Public Policy Finally, I would like to address a last distinction that, in my opinion, could have been more fully explored in order to explain differences in complying with treaties. As in the case of constitutionally guaranteed rights at the domestic level, the concrete implementation of rights guaranteed in a treaty does not depend solely on the level of commitment of a given government to human rights values. At the constitutional level, different rights may experience different degrees of realization, even if the government’s commitment to human rights is as a whole constant. One major reason for this variance lies in the distinction between realization through legislation and realization through public policies, 30
or between rights to a normative action and rights to a factual action by the state. This distinction is differs from that discussed above between negative and positive rights, though there may be similarities, as will become clear in the next paragraphs. Among the rights that demand positive actions by the state, some require that the state create certain legal norms, others require that the state protect the citizens in their relationships with other citizens. Some rights need the creation of procedures and institutions to be fully exercised while other rights depend on specific public policies. As it is easy to notice, I adopt here a version of the classic German doctrine on the “objective 31
dimension of basic rights.” According to this doctrine, basic constitutional rights, in 29
See for instance, Virgílio Afonso da Silva & Fernanda Vargas Terrazas, Claiming the Right to Health in Brazilian Courts: The Exclusion of the Already Excluded?, 36 LAW & SOCIAL INQUIRY (LSI) 825 (2011). 30
For this last distinction, see for instance, ROBERT ALEXY, THEORIE DER GRUNDRECHTE, 179-­‐180 (2nd ed., 1994) (English translation: ROBERT ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS, 126-­‐127 (tr. Julian Rivers, 2002). According to Alexy, rights to positive acts can be divided into two groups— those having factual acts as their objects, and those having normative acts as their objects. 31
See for instance, ROBERT ALEXY, RECHT, VERNUNFT, DISKURS (Law, Reason, Discourse) 262 (1995); HORST DREIER, DIMENSIONEN DER GRUNDRECHTE (Dimensions of the Fundamental Rights, 1993); Hans D. Jarass, Die Grundrechte: Abwehrrechte und objektive Grundsatznormen (The Fundamental Rights: Defense Rights and Objective Norms), in FESTSCHRIFT 50 JAHRE BUNDESVERFASSUNGSGERICHT (Years of the Federal Constitutional Court) 35 (Peter Badura & Horst Dreier eds., Vol. 2, 2001). 2012] Beth Simmons’ Mobilizing for H uman R ights 85 addition to being defensive rights against the state have effects that radiate to other spheres and generate different kinds of rights and state duties. The most important cases of these effects and the creation of new rights and duties are: (1) the so-­‐called horizontal 32
33
effects of basic rights; (2) the duties of protection; and (3) the rights to organizations 34
and procedures. The difficulties in realizing a basic right are directly related to the extension of what is demanded from the state. To illustrate the distinction between legislation and politics, I will use an example from the Brazilian Constitution. The Brazilian constitution guarantees, in the same chapter, social rights and so-­‐called workers’ rights. Though both kinds of rights demand something from the state, the latter are usually much better guaranteed than the former. The reason is simple: what is required by the latter is simply easier to implement. The implementation of workers’ rights requires that the state legislate (for instance, vacation time and payment, overtime-­‐hour limits, maternity leave, etc.). The legislation, as such, guarantees and realizes those rights. If they are violated by an employer, they may be enforced by the courts. In contrast, what social rights require is much more complex and costly. The right to health, for instance – at least in the way the Brazilian constitution defines it – requires, among other things, hospitals to be built and maintained, physicians to be hired, medicines to be bought and freely distributed. Similarly, the right to education requires schools to be built and maintained, teachers to be hired, and so on. Although much has already been done in Brazil in the area of social rights, and much more money has been spent in the realization of these rights than in the realization of workers’ rights, social rights are nevertheless implemented with less frequency as compared to workers’ rights because, among other things, what is required from state is much more complex and costly. When compliance with international treaties is analyzed and evaluated, one cannot lose sight of these differences. For a state that believes in the values of human rights, 32
See for instance, CLAUS-­‐WILHELM CANARIS, GRUNDRECHTE UND PRIVATRECHT: EINE ZWISCHENBILANZ (Fundamental Rights and Private Law: An Appraisal, 1999); INGO VON MÜNCH, PABLO SALVADOR CODERCH & JOSEP FERRER I RIBA, ZUR DRITTWIRKUNG DER GRUNDRECHTE (On the Effects of Constitutional Rights on Private Relations, 1998); Claus Dieter Classen, Die Drittwirkung der Grundrechte in der Rechtsprechung des Bundesverfassungsgerichts (The Effects of Constitutional Rights on Private Relations in the Case-­‐Law of the German Federal Constitutional Court), 122 ARCHIV DES ÖFFENTLICHEN RECHTS 65 (1997). 33
See for instance, Josef Isensee, Das Grundrecht als Abwehrrecht und als staatliche Schutzpflicht (Fundamental Rights as Defense Rights and as State Duties to Protect), in HANDBUCH DES STAATSRECHTS DER BUNDESREPUBLIK DEUTSCHLAND, 143 (Josef Isensee & Paul Kirchhof eds., vol. V., 111, 1992); JOHANNES DIETLEIN, DIE LEHRE VON DEN GRUNDRECHTLICHEN SCHUTZPFLICHTEN (The Doctrine of the Duties to Protect, 1992). 34
See for instance, Konrad Hesse, Bestand und Bedeutung der Grundrechte in der Bundesrepublik Deutschland (Extension and Significance of the Fundamental Rights in Germany), 5 EUROPÄISCHE GRUNDRECHTE-­‐ZEITSCHRIFT 427 (1978). 86 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
abolishing the death penalty (or keeping it forbidden) is much simpler than eradicating child labor or realizing all socioeconomic rights. In the former case, one needs only to amend the constitution or, if the death penalty is already constitutionally forbidden, nothing else is required (other than respecting the constitution). In the latter cases, besides enacting legislation forbidding child labor, a huge network of control is also necessary, since, contrary to what is typically the case regarding the death penalty, it is not the state that usually employs children as a workforce. When socioeconomic rights are at stake, the complexity and costs are even higher, as has been stressed above. Therefore, it is not possible, without further qualifications, to compare a state that does not comply with the prohibition of the death penalty, although if it has accepted the provisions of the ICCPR’s first optional protocol, and a state in whose territory there is still child labor, although it has ratified the CRC. At least it is not possible to argue that both are equally unwilling to comply, since the kinds of non-­‐compliance are completely different. D. Conclusion Treaties matter, but not only in the way many international scholars (those I called “believers” in the beginning of this review) suppose they do. Treaties can be used in domestic politics as very powerful arguments for a more widespread realization of the values they express. It is not an easy task to determine which variables foster and which ones hinder the kind of mobilization for human rights Simmons describes and analyzes in her book. Since a major part of her arguments deal with domestic institutional and legal arrangements (such as federalism, presidentialism, common law), more research from domestic and constitutional law perspectives would be more than welcome. I am sure that the outstanding achievement and the arguments of Simmons’ book will largely confirmed. Her fascinating book may, therefore, serve as a research agenda for years to come. Developments Book Review – Charles R. Beitz’s The Idea of Human Rights (2009) ∗
By Angelina Ling [CHARLES R. BEITZ, THE IDEA OF HUMAN RIGHTS (OXFORD UNIVERSITY PRESS, 2009); ISBN13: 9780199572458; 256 pp.; $29.95; Hardcover] A. A Functional Account of Human Rights The definition of “human rights” in terms of theory and function has been broad and varied. It is an institutional requirement, describing the positive and negative duties owed by political institutions to individuals. It is a theory of morality, expressing socio-­‐cultural norms that are justified by a deity, universally shared beliefs, common humanity, or reason. It is a legal relationship in national and international law. It is a hierarchy of human interests, requiring the prioritization of some interests over others whether due to limited resources or the need to constrain potential transnational intervention. But the very breadth of these roles has resulted in doubts about enforcement and content. What interests ought to be enshrined as human rights, and what kind of protection should status as a human right confer? Without greater clarity as to the nature of human rights, it is difficult to defend the use of “human rights” as a functional description. Charles R. Beitz is the Edwards S. Sanford Professor of Politics at Princeton University. He is a pioneer of global justice and a specialist in political theory and international relations, and graduated with a PhD from Princeton in political philosophy. In The Idea of Human Rights, he defends the use of human rights as a concept by answering the question of what a human right is, and what it ought to contain. His object is to develop a theoretical definition that is congruent with the role of human rights in international affairs as a public political practice. Instead of beginning with a utopian set of human rights premised on an inherent quality of humanity, he proposes a set restricted to what can be realized in light of real world limitations. This review will proceed in two parts. The first part will summarize The Idea of Human Rights. The second part will comment on the limitations of Beitz’s model, particularly with respect to its application and ability to reflect evidentiary circumstances in accordance with its stated purpose. ∗
JD Candidate 2012, University of Toronto, Faculty of Law. Email: [email protected]. 88 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
B. Summarizing The Idea of Human Rights In eight chapters, Beitz aims to define human rights as a concept within the contemporary world order of states. He begins by describing the problems flowing from a conception of human rights from a philosophical or moral standpoint, before proceeding to an exposition of his model and an application of it to three particular issues. In particular, he believes that a functional definition of human rights, independent of moral considerations, is the key to simplifying the determination of the scope and application of human rights in specific instances. The first two chapters address the historical background of human rights as a philosophical doctrine and political instrument. In Chapter 1, “Introduction,” Beitz describes the doubts surrounding the doctrine of human rights as a basis for action. He argues that these doubts are best resolved by defining human rights with respect to their categorical role within international political discourse as a set of norms linked to various actions. In Chapter 2, “The Practice,” Beitz outlines the historical and current role of human rights as a still 1
evolving, non-­‐juridical “emergent” practice. In short, human rights exist for the protection of individuals against the consequences of their governments’ actions and omissions. This historical review of the idea of human rights reveals that the definition of human rights began with the quest for an abstract theory premised on universal ideals that would be generally applicable. For Beitz, this orientation is not ideal. Instead, he believes that human rights ought to be conceived of as political doctrines tailored to the factual circumstances in which they are employed. Consequently, he begins by describing the weaknesses of naturalistic theories and agreement theories as doctrines that approach the idea of human rights from an abstract perspective divorced from practice. In Chapter 3, “Naturalistic Theories,” Beitz discusses how naturalism inherently limits the potential content of human rights by focusing on the individual as a homo sapiens and not as a member of society. Since the specific content of a human right in modern life is driven by the relationships between individuals and between individuals and institutions, it cannot be adequately modeled by naturalism’s autonomous individual. In Chapter 4, “Agreement Theories,” Beitz contends that “common core,” “overlapping consensus,” and “progressive convergence” theories actually promote paternalism and require a body of human rights less than what is currently found in international law. Common core and overlapping consensus theories tend to enforce the beliefs of a culture’s dominant group. Progressive convergence theory inherently implies an external judgment that an individual’s understanding of his or her own cultural norm is undeveloped. 1
CHARLES R. BEITZ, THE IDEA OF HUMAN RIGHTS 43 (2009). 2012] R ights Beitz’s The Idea of Human 89 Beitz argues human rights should be statist and relational. Like John Rawls, he believes the content of a human right should vary depending on the particular factual circumstances in which it is applied. In contrast to earlier definitions premised on the common humanity of individuals, Beitz prefers Rawls’ idea of a human right that varies in scope depending on the state to which the individual claimant belongs. After introducing Rawls’ conception of human rights, Beitz details the extent to which a human right ought to be subject to state boundaries. He defines a human right as a state’s particular method of protecting an urgent individual interest against predictable threats to that right within the specific societal context. If a state does not guarantee a human right for its citizens, other states may do so, but are not obliged to intervene. Thus, for Beitz, human rights are determined by the interactions within and between societies. The recognition of a right depends on a cost-­‐benefit analysis of its worth in a particular situation by those affected – it is not a fixed guarantee. Chapters six and seven continue this theme. In Chapter 6, “Normativity,” Beitz argues that human rights are not justified by their content, but by their function as “norms of global 2
political life” since the value of each right to an individual varies. His model for determining the substance of human rights has three components. First, the interest must be important to a reasonable beneficiary and a reasonable prospective protector. Second, the threat must be one that is predictable and capable of state redress via law or policy. Third, there must be foreign states with the capability to enforce the right in the event of a domestic failure and reasons to act. Notably, this model considers political and practical feasibility alone. As Beitz argues in subsequent parts, moral minimalism and toleration should not apply to the potential scope of human rights. In particular, Beitz believes that Rawls’ concern for international recognition of the right of peoples to collective self-­‐determination is inconclusive because of the risk that the existing institutions of a society do not represent all the individuals within a society. The rationale for domestic tolerance should not be extended to the international level because it merely establishes that tolerant states should be tolerated. In Chapter 7, “International Concern,” Beitz applies his model to anti-­‐poverty rights, political rights, and the human rights of women. Anti-­‐poverty rights are still “rights” even if they do not presumptively bind specific states to claimants’ states of origin because the moral and economic costs of forgoing anti-­‐poverty foreign aid are prohibitively high for external states. Beitz lists motivations driving states to alleviate foreign poverty: beneficence and fairness where the economic interaction between states has been more 2
Id. at 128. 90 G e r m a n L a w J o u r n a l 3
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beneficial to the wealthier state than to the poorer one. Political rights raise the issue of the correlation between a generic interest and a specific institutional form. Beitz argues that political rights should advance collective self-­‐determination, and only democratic institutions where they are the only way of guaranteeing collective self-­‐determination in a specific situation. The human rights of women highlight the potential for conflict between domestic cultural norms and human rights. Beitz suggests that intervention is not paternalistic if the most proximate actors are local non-­‐governmental organizations (NGOs), and that it is not implausible that a compromise may be found given the variety of ways in which human rights may be advanced. Finally, Beitz addresses concerns over the effect of imbalances in state power on the actual practice of human rights. He reconfirms his characterization of human rights as a language for discourse between states, and defends the viability of human rights as an international project. He defends human rights against accusations of moral imperialism by suggesting that the problem lies with the protection of interests through unsuitable institutions and not with the interest itself. He suggests that a centralized regime with the ability to regulate transnational human rights interventions would prevent the exercise of human rights from being distorted by foreign interveners’ political self-­‐interests. C. Rooting The Idea of Human Rights in Practice The model described in The Idea of Human Rights could be strengthened with the addition of interdisciplinary evidence and greater specificity in certain areas. I. Interdisciplinary evidence Beitz’s model intersects with the work of scholars in economics, international relations, and law. With respect to areas related to economics, Beitz argues that states can be motivated by moral obligations to support another state where the economic interaction between the two states has resulted in greater economic gain for one state relative to the 4
other. His model does not suggest self-­‐interest as a motivating factor for transnational intervention and in fact proposes methods to avoid tainting such interventions with 5
political self-­‐interest. 3
Id. at 167, 171. 4
Id. at 171. 5
Id. at 205. 2012] R ights Beitz’s The Idea of Human 91 However, it is difficult to reconcile this depiction of human rights interventions as being primarily motivated by altruism when Beitz’s model also characterizes states as rational actors who are not presumptively bound by moral obligations to protect human rights internationally. Cheah notes the persistence of neo-­‐mercantilism today, as wealthy Western countries utilize intellectual property treaties and export policies to ensure a 6
captive market for their innovations. Moreover, accounts of situations where countries have intervened to reduce poverty or advance other human rights often reveal mixed 7
motives by those involved. A consideration of the extent to which political self-­‐interest is permissible as a motivating factor for international interventions would increase the model’s fidelity with respect to actual practice. Throughout his work, Beitz considers the problem of different cultural and moral perspectives, both in terms of the individuals and groups constituting a society and between states. His schema assumes that actors will be reasonable, or more specifically, that states and human rights claimants will be reasonable when they are assessing the import of a particular interest. However, the idea of an objective standard that is generally accepted as such is problematic. Legal scholars have recognized that the “reasonable” person who can provide an objective standpoint is in fact embedded in a particular societal and historical context. Thus, embedding the standard of a “reasonable” actor within an institutional regime can facilitate systematic bias against a particular group of persons within a society, and the standard itself may not be universally regarded as an objective 8
assessment. As for the potential contribution of international relations, Beitz suggests that a centralized, international regime with the ability to regulate unilateral state action allegedly in pursuit of human rights as a solution to distortions generated by political self-­‐
interest and the inconsistent application of human rights standards. However, scholars in the field of international relations have discussed the unlikelihood and difficulty of such a regime. For instance, Castaneda suggests that greater inclusion of Brazil, China, India or South Africa in global governance would, among other things, discourage the development 9
of an international regime that would support human rights. Furthermore, a more nuanced discussion of the non-­‐legal solutions that Beitz proposes would be of benefit. 6
PHENG CHEAH, INHUMAN CONDITIONS: ON COSMOPOLITANISM AND HUMAN RIGHTS 162 (2006). 7
E.g. Tom Porteous, British Government Policy in Sub-­‐Saharan Africa under New Labour, 18 INTERNATIONAL AFFAIRS 281 (2005); Francis Owusu, Post-­‐9/11 U.S. Foreign Aid, the Millennium Challenge Account, and Africa: How Many Birds Can One Stone Kill?, 54 AFRICA TODAY 3 (2007). 8
E.g. MAYO MORAN, RETHINKING THE REASONABLE PERSON: AN EGALITARIAN RECONSTRUCTION OF THE OBJECTIVE STANDARD (2003). 9
Jorge G. Castaneda, Not Ready for Prime Time: Why Including Emerging Powers at the Helm Would Hurt Global Governance, 89 FOREIGN AFF. 109, 112 (2010). 92 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
Given that many NGOs are funded by local or foreign governments, a more detailed 10
discussion of how and to what extent NGOs can act as a defense to paternalism would be of benefit. Finally, Beitz notes that human rights are more political than legal. That is, they can be 11
enforced by political mechanisms and entities without specific legal authority. As such, the omission of empirical evidence external to the six human rights treaties most prominent in international law is curious. With the exception of subsection 26, “Political Rights,” Beitz bases his theory on the text of international law and does not consider empirical evidence regarding the human rights project. II. Evidentiary Corroboration Beitz’s conception of human rights as a set of political norms evolving in tandem with actual circumstances suggests a degree of uncertainty correlating with the need to tailor his model to suit each particular instance of its application. However, certain aspects of his theory could be more fully detailed without impairing this circumstantial flexibility. Throughout the book, Beitz introduces and discards a number of issues without providing a comprehensive discussion or resolution. This raises three concerns. First, a fuller discussion of naturalistic and agreement theories of human rights would strengthen Beitz’s commentary on their weaknesses. As Etinson details in his review, the consideration of 12
more contemporary philosophers would bolster the theoretical basis of Beitz’s attack. Second, Beitz’s argument that international human rights standards stem solely from state-­‐
level public practices of human rights is weakened by a supporting survey that does not comprehensively identify these public practices. Third, greater specificity would improve the ease with which Beitz’s model might be applied to particular evidentiary circumstances. For instance, Beitz proposes that the subject of a human right must be important to both prospective beneficiaries and prospective protectors. He suggests that problems with reaching a consensus can be resolved by generalizing a specific interest, 13
such that its importance can be recognized by those who do not believe it is important. 10
BEITZ, supra note 1, at 196. 11
BEITZ, supra note 1, at 40. 12
This point is covered comprehensively in Etinson’s review. I chose to engage with Etinson’s review because he is a philosopher focusing on moral theory and human rights. While my comments are targeted towards interdisciplinary and evidentiary issues, Etinson focuses on the theoretical basis for Beitz's perspective and the interaction between Beitz and other philosophers. See Adam D. Etinson, To be or not to be: Charles Beitz on the Philosophy of Human Rights, 16 RES PUBLICA 441, 443 (2010). 13
BEITZ, supra note 1, at 138. 2012] R ights Beitz’s The Idea of Human 93 But without more detail, it might be difficult to envision how this proposal could be applied to situations such as the transition from general acceptance of freedom of religion to the recognition of halakah and sharia principles in family law. D. Conclusion The Idea of Human Rights is suitable for academics and students seeking an alternative perspective on the role that human rights formally plays and ought to play in an international statist system. It is not an introductory text for a general audience, or a complete treatise. Beitz assumes his audience has prior knowledge of political science concepts; the brevity and number of his analyses of other theorists might pose a challenge to the uninitiated. Furthermore, the vagueness of Beitz’s model limits its usefulness for policymakers attempting to address a particular situation. For instance, there are no principles specifically directed towards the resolution of a conflict between human rights. Nonetheless, The Idea of Human Rights is an admirable bridge between theory and practice, although there are areas that could be more fully explored. As Etinson notes, the strength of The Idea of Human Rights lies in its consideration of both the political 14
considerations motivating policymakers and the philosophical theories of academics. It seeks to frame the context surrounding the human rights enterprise without losing sight of feasibility and other more mundane concerns, and embeds the theoretical definition of human rights in its political context. An extended application of Beitz’s model to formal and informal exercises in pursuit of human rights within specific circumstances would be most welcome. 14
ETINSON, supra note 12, at 445. Developments Book Review – Pablo de Greiff & Roger Duthie’s (eds.) Transitional Justice and Development: Making Connections By Basil Ugochukwu* [PABLO DE GREIFF & ROGER DUTHIE (EDS.), TRANSITIONAL JUSTICE AND DEVELOPMENT: MAKING CONNECTIONS (Social Science Research Council, 2009); ISBN 0-­‐9790772-­‐9-­‐6; 376 pp; $30.00; Paperback] A. Introduction One mystifying aspect of legal and socioeconomic scholarship in successive years is that 1
transitional justice and development were discussed separately. How two fields making similar commitments to social transformation and economic recovery could have traveled such asymmetrical routes for so long without anyone noticing is even more surprising, but 2
this had been the position until lately. Even in the transitional justice arena itself, there exists a tendency to distinguish the justice in transition as vengeance and retribution for past wrongs from the justice in transition as re-­‐establishing the rule of law, rebuilding legal 3
institutions and unleashing their developmental capacities. *The author is a Ph.D. candidate and Legal Process Instructor, Osgoode Hall Law School, York University, Canada. He also holds an LL.M degree from Central European University, Hungary, and an LL.B (Hons.) from Abia State University, Nigeria. The author is grateful to the editors of the German Law Journal for their very helpful comments and suggestions on an earlier draft of this paper. Email: [email protected]. 1
Defined by the United Nations as “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-­‐scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.” Transnational Justice, United Nations Rule of Law, available at: http://www.unrol.org/article.aspx?article_id=29 (last accessed: 23 December 2011). 2
See Aaron Wu, The Mythology of Transition, Transformation and Development, Unpublished working paper (2009) available at http://ssrn.com/abstract=1567250 (last accessed: 23 December 2011): “The fields ostensibly share discourses of responsibility, transparency and accountability; foundations in Christianity and the Enlightenment; and combine a rationalistic and technocratic approach with a utopian vision of the future”. 3
Some authors, for example, have made reference to the “tension between the forward-­‐looking economic goals of growth, development, and investment, and the backward-­‐looking trials and truth commissions.” See Tricia D. Olsen, Andrew G. Reiter & Eric Wiebelhaus-­‐Brahm, Taking Stock: Transitional Justice and Market Effects, Unpublished paper prepared for the 2010 Midwest Political Science Association Annual Meeting (2010), available at http://ssrn.com/abstract=1666892 (last accessed: 23 December 23, 2011). See also Elizabeth Knight, Facing the Past: Retrospective Justice as a Means to Promote Democracy in Nigeria, 35 CONN. L. REV. 867, 868 (2003). 2012] Greiff & Duthie’s Transitional Justice a nd D evelopment 95 In the 1960s and 1970s similar questions to the ones being raised today about the linkage between transitional justice and development were also asked regarding the relevance of law to development. The dilemma of scholars who had been involved in that inquiry found 4
powerful expression in a famous piece by Trubek and Galanter on the subject. The manner in which they approached the question does to some extent parallel the more recent efforts to link transitional justice and development, where the latter in their view is “assumed to involve an increase in man’s rational capacity to control the world, and thus in 5
his ability to improve his material well-­‐being.” On the other hand, they saw law as both a necessary element in development and a useful instrument to achieve it. Continuing, they claimed that “legal development would foster social development and improve human 6
welfare ....” However, what is intriguing is that legal empowerment as discussed today in transitional justice and law and development literature is much like the law as referenced by Trubek and Galanter was in those days. We are, by some accounts, living under the impact of what 7
is described as the second wave of the law and development movement. According to some of these accounts, law and development research is in fact now integral to one arm of a bifurcated transitional justice field. The first arm aims at discovering the truth and fixing culpability in societies whose transitions had been enabled in a somewhat negative way by rule of law rupture and prevalence of human rights atrocities. In this box, transitional law would be most effective only in showing off its retributive essence. In the second arm, more emphasis is placed on rebuilding the damaged institutions of law, so they can provide empowering alternatives to those most hurt prior to the transition, rather than casting a backward glance at past atrocities and pursuing those who committed them. Within this arm, there is more commitment to how transitional justice can aid future development, as opposed to how it can punish abusers of past years. Therefore, there is transitional justice as retribution, in which development is only marginal to its overarching objectives, and there is also transitional justice in the sense of a vehicle for legal empowerment, and socio-­‐economic development. In this latter understanding, certain aspects of development are central to the goals of a transitional process. 4
David Trubek & Marc Galanter, Scholars in Self-­‐estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States, WIS. L. REV. 1062 (1974). 5
Id. at 1073. 6
Id. at 1074. 7
Okezie Chukwumerije, Rhetoric Versus Reality: The Link Between the Rule of Law and Economic Development, 23 EMORY INT’L L. REV. 383, 386 (2009). 96 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
But, could we draw a clear divide between transitions that emphasize transitional justice on the one hand, and those that emphasize transitional development on the other? Or could transitions harness both fields simultaneously without compromising the desired outcome? Is there a relationship between transitional justice as understood in the two senses earlier described, and development in a broader sense than as it is understood in the second leg of the transitional justice field? These are some of the questions answered by Pablo de Greiff and Roger Duthie’s edited collection Transitional Justice and Development: Making Connections. The collection itself was the result of a two-­‐year research project involving the International Center for Transitional Justice (ICTJ) the primary objective of which was to bring “into dialogue those who often work alongside each other in transitional and developing societies, but not always together in providing a 8
coherent response to the interconnected concerns of development and justice.” The editors of this collection recognize that reconciling transitional justice and development is not by any means easy, especially given that both concepts occupy contested terrains. Despite its popularity as an item of contemporary legal scholarship, the editors state that fundamental questions are still being asked about transitional justice, especially “about its meaning, the type of justice it involves, its objectives, its precise measures and activities, how it works, its impact, its appropriateness in certain contexts, 9
its boundaries, and its relationship with other fields.” What is true of transitional justice holds substantially correct for development as well –if not more so – since, according to the editors, “there is no set of measures that lead to an overlap among [development] 10
practitioners.” These difficulties notwithstanding, contributors to the collection converged on a set of meanings for these broad concepts. By transitional justice they refer to “measures to redress massive human rights abuses, which typically include criminal prosecutions, truth-­‐
11
telling, reparations, and certain kinds of institutional reform.” Development to them means “processes whose most general aim is to improve the socioeconomic conditions of 12
people.” Given these two understandings, it would seem odd that the two concepts did exist in isolation for so long a time. This is especially so considering that both share goals of establishing a better society, whether applying forwarding-­‐looking strategies (development) or learning the important lessons of life by avoiding the mistakes of history (transitional justice). 8
TRANSITIONAL JUSTICE AND DEVELOPMENT: MAKING CONNECTIONS 17 (Pablo De Greiff & Roger Duthie eds., 2009). 9
Id. 10
Id. at 18. 11
Id. 12
Id. 2012] Greiff & Duthie’s Transitional Justice a nd D evelopment 97 This essay is divided into four parts of which this introduction is the first. In the second part I present a synopsis of the collection, while in the third part I will present an analysis of the contributions with some attention to how the different parts fit into the entire collection. I make a brief conclusion in the fourth and last part. Following my analysis, I argue that for any meaningful connection to be made between transitional justice and development, the overall context for transition has to be understood. At the same time, the collection has opened the door for further research in this field, especially in those areas where there might be tension between transitional justice and development. B. Transitional Justice and Development: A Synoptic View De Greiff and Duthie’s collection is organized into nine chapters around three broad themes that reflect the conceptual and practical insights that the authors bring to their analyses. The first three chapters explore the links between transitional justice and development at the theoretical and conceptual levels. The next four chapters examine the relationship between particular transitional justice measures and development. The last two chapters reverse this treatment by examining the relationship between transitional justice and development through a focus on specific development-­‐related issues. In the first chapter of the collection titled “Articulating the Links between Transitional Justice and Development: Justice and Social Integration,” Pablo De Greiff takes on the task of unpacking the “fuzzy conceptual borders” of development and transitional justice, while at the same time attempting to contain the dissents he claims are internal and external to 13
both. In accomplishing this task, he sees the need to explain why it is necessary to couple transitional justice and development and offers two related justifications for this. First, he argues that a good number of transitional societies face immense developmental challenges, and a good number of developing countries face abiding “justice deficits” 14
concerning massive human rights abuses in the past. Secondly, and more importantly, he links this connection to public expectations from transitional measures that often promise better living circumstances for the public. He also states that “it is unreasonable to think that unless people’s overall living conditions improve in the aftermath of political transitions the implementation of transitional justice measures will over time become a series of inconsequential ‘events’…. So, just as there are reasons for transitional justice promoters to take an interest in development, there are reasons for development 15
promoters to take an interest in transitional justice.” 13
Id. at 29. 14
Id. 15
Id. at 30. 98 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
How is it possible for a development practitioner to conceive of her work in terms of its connection with transitional justice? This is the substance of Marcus Lenzen’s contribution in chapter two, titled “Road Less Traveled: Conceptual Pathways (and Stumbling Blocks) for Development and Transitional Justice.” He establishes a commonality between both concepts according to their process-­‐orientedness, and given that both “are concerned with 16
improving human lives and societies,” he states that there is a direct linkage between the two fields in the peace building arena, where both are concerned to some extent with contributing to the development of institutions and their capacities to ensure conditions 17
for peaceful coexistence. In chapter three, Tony Addison examines “The Political Economy of Transition from Authoritarianism.” He identifies five goals of societies in transition: transitional justice, distributive justice, prosperity, participation and peace. Authoritarian regimes, according to him, often leave behind distorted economies and high inequality which democrats may find difficult to change. “Democracy’s prospects will then be endangered since expectations of social justice will be high but frustrated. Consequently, transition is unlikely 18
to succeed unless its economic dimensions are adequately addressed.” In terms of how transitional justice and development relate from this standpoint, Addison harnesses development seen as a technocratic endeavor which is about “getting the ‘right’ policies and institutions in place to build up, over time, society’s stocks of human and physical capital – thereby delivering rising prosperity accompanied by absolute poverty reduction” and transitional justice as a developmental concept “rooted in social transformation, not 19
just technocratic endeavor.” Chapters four (Rolando Ames Cobián and Felix Reategui, “Toward Systemic Social Transformation: Truth Commissions and Development”) and five (Naomi Roht-­‐Arriaza and Katharine Orlovsky, “A Complementary Relationship: Reparations and Development”) establish the relationship between development and two specific transitional justice measures— truth commissions and reparations. While according to Cobian and Reategui, truth commissions set the record straight, thus promoting the acknowledgement of abuses 20
and the social recognition of the abused, Roht-­‐Arriaza and Orlovsky initially identify what seems to be a tension between reparations and development. Reparations often warrant 16
Id. at 77. 17
Id. at 83. 18
Id. at 111. 19
Id. at 114. 20
Id. at 148. 2012] Greiff & Duthie’s Transitional Justice a nd D evelopment 99 additional social spending in transitional economies where budgets are finite and the 21
competition for resources is particularly fierce. Yet truth commissions and reparations have clear junctures of intersection with development holistically defined. While all transitional justice measures enable victims and survivors of mass atrocities to (re)emerge “as social actors with the initiative, 22
motivation, and belief in the future that derive from sustainable economic activity,” 23
reparations alone constitute “its most concrete, tangible, and… personalized expression.” This is so because even small amounts given to victims and survivors as reparations may unleash the energy and creativity of previously marginalized sectors of the transitioning 24
society. Truth Commissions share a similar goal because as a transitional justice measure, they are not just practiced for their own sake. The recovery of truth, which they promise “serves as both a cornerstone of justice and a triggering device for legal justice, reparations, and institutional reforms aimed at preventing massive abuses from happening 25
again.” Chapters six and seven discuss two reform issues centering on development, but are ones which the authors believe could supply additional insights towards the developmental objective in transitional situations— security sector and judicial reforms. In “Enhancing Justice and Development through Justice-­‐Sensitive Security Sector Reform,” Alexander Mayer-­‐Rieckh and Roger Duthie fixed security sector reform in the realm of development. However, this is not conclusive of the fact that it does not have links to transitional justice. Citing vetting measures aimed at excluding human rights abusers from security sector institutions in the course of a transition as an example, they argue that “there is potential for security sector reform and transitional justice to complement each other… and to a certain extent to converge in the notion of a justice-­‐sensitive approach to security sector 26
reform.” In chapter seven Muna Ndulo and Roger Duthie couple judicial reform, development and transitional justice in their contribution titled “The Role of Judicial Reform in Development and Transitional Justice.” This chapter draws connections between judicial reform, transitional justice and development through the relatively narrow notion of judicial reform while borrowing extensively from Amartya Sen’s theory that “development as a 21
Id. at 173. 22
Id. 23
Id. 24
Id. 25
Id. at 148. 26
Id. at 215. 100 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
27
whole cannot be considered separately from legal development” and that “the overarching idea of development is a functional relation that amalgamates distinct developmental concerns respectively in economic, political, social, legal and other 28
spheres…” Ndulo and Duthie conclude that judicial reform can enable transitional justice or in fact be a precondition for it. Conversely, transitional justice can contribute to judicial reform. The last two chapters of this collection discuss two important development-­‐related issues: natural resources and land tenure reform, and how these interact with transitional justice. In chapter eight Emily Harwell and Philip Le Billion enter the discussion with their piece “Natural Connections: Linking Transitional Justice and Development through a Focus on Natural Resources,” while in the last chapter Chris Huggins supplies an analysis under the title “Linking Broad Constellations of Ideas: Transitional Justice, Land Tenure Reform, and Development.” Harwell and Le Billion note a bifurcated role of natural resources in post-­‐
conflict countries. If well managed, natural resources can make significant contributions to post-­‐conflict development and help build and protect human security in all its forms. On the contrary, where natural resources are mismanaged, they present not only lost economic opportunity but endanger both long-­‐term economic development and human 29
security as well. Huggins, for his part, notes the relatively little scholarship available on the relationship between land issues and transitional justice. Where a nexus has nonetheless been established between the two, land rights have tended generally to be discussed only in terms of restitution of property rights to those deprived of them during a period of conflict or authoritarianism, while avoiding such historically relevant injustices as, for example, colonialism. Huggins observes a relationship between transitional justice and land through the concept of the rule of law, often articulated in terms of its positive impact on development. Further, in the rule of law field, there is considerable progress towards ensuring that rule of law programs address issues relating to land rights. There is a sense in which Transitional Justice and Development could be considered very apt for the times, especially given emerging trends in the literature to integrate the two fields examined in the collection. Moreover, the collection would seem invaluable both for the themes it addresses and those left out, but more particularly for the latter which now provide focused points of entry into the debate for scholars and practitioners interested in 27
Amartya Sen, What is the Role of Legal and Judicial Reform in the Development Process?, Unpublished paper presented at the World Bank Legal Conference on the Role of Legal and Judicial Reform in Development (2000). 28
Id. 29
De Greiff, supra note 8, at 283. 2012] Greiff & Duthie’s Transitional Justice a nd D evelopment 101 30
this area of scholarship. What this makes very plain is that while Transitional Justice and Development has broken a path long neglected, it has not spoken the final word on the themes addressed. C. Transitional Justice and Development: An Analytic Critique My understanding is that this collection is not a judgment or an inquest into the effectiveness of either the developmental or transitional justice measures addressed by specific contributions. There is not much of a critique of these measures. Rather, there is what appears to be a narrowing of the analyses to simply coupling transitional justice and development at a level more theoretical than practical. Thus, “making connections” between these two fields trumps a deeper reflection on the effectiveness or appropriateness of the connections established. Not surprisingly, only in a few of the contributions are actual case studies analyzed. Yet, an evaluation of these connections is one that strongly recommends itself, if only to understand more clearly the levels at which they advance the core goals of both development and transitional justice. Both development and transitional justice contain worthwhile promises for social and economic improvements at the abstract level. This presents perhaps, the strongest explanation for the connection that De Greiff and Duthie’s collection is making between them. Where they fail to deliver on these promises, there might be the tendency to question this connection without as much as considering the factors that may have played 31
a role in their failure. Sometimes, there may not have been absolute failure but the fruits of the measures delay in ripening. As David Backer submits, “transitional justice issues in post-­‐conflict settings often entail processes that will and should unfold over an extended 32
period of time – a decade, if not considerably longer.” Continuing, he states that “[i]n many cases, measures are implemented piecemeal or progressively in stages. In others, initial steps are limited, halted or even reversed, but are occasionally revisited at a later 33
time…. ” 30
See, e.g., Olsen, supra note 3. The authors examine the effect of transitional justice mechanisms (trials, truth commissions, and amnesties) on the perceptions of private investors. 31
These factors include domestic prosecutions that are neither systematic nor timely, truth-­‐seeking and reparations measures implemented in the contexts of political compromise and limited resources and a general weakness of state institutions. See Lydia Bosire, Overpromised, Underdelivered: Transitional Justice in Sub-­‐
Saharan Africa, Unpublished Paper, International Centre for Transitional Justice, Occasional Paper Series 1 (2006). 32
David Backer, Watching a Bargain Unravel? A Panel Study of Victims’ Attitudes about Transitional Justice in Cape Town, South Africa, 4 INT’L J. TRANSITIONAL JUST. 443, 444 (2010). 33
Id. at 444. 102 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
Might it not be necessary to bear these possibilities in mind while forging the connection between transitional justice and development? While some contributions in Transitional Justice and Development adumbrated connections between specific transitional justice measures and development, at the practical level, those measures may impair broader social goals, including development. Backer, for example, reports on a panel survey conducted between 2002-­‐2003 and 2008 involving 153 victims of apartheid-­‐era violations in South Africa. According to him, “[d]uring the interval between the two waves of the survey, both undertaken after the Truth and Reconciliation Commission (TRC) completed its work, government policies concerning reparations, prosecutions and pardons undermined the compromises that were central to the TRC process and integral to the democratic transition.” While public enthusiasm about the South African TRC’s unique conditional amnesty program was high at inception, it fell dramatically by 2008, with those surveyed showing both an increased sense of unfairness at the program and dissatisfaction 34
with the extent of truth recovery. In another report, the authors contended that Truth 35
Commissions tend to have a negative impact on human rights. Most of the contributors to this collection appeared to adopt the definition of transition as a destination rather than a journey. They also view the justice of the transitional process sometimes as the very transitional justice measures themselves, and at other times, as the benefits that accrue to those targeted by those measures. Imagined in this sense, the transition is completed once the mechanisms established for the purpose (TRCs, prosecutions, reparations, lustrations, elections) terminate their tasks. But I would rather view a transition as a journey, because it is only by so doing that the proper connection to development can be drawn. To some scholars, the etymology of transition makes clear the 36
fact that it is indeed a journey. How long should transitional processes last? Assuming transition is a continuum, at what point should its benefits in the form of tangible developments start counting? Backer sets a ten-­‐year period for transitional justice issues in post-­‐conflict settings to 37
unfold. While contributors to the collection were not this pointed, they shared similar sentiments to a large extent. But this, to me, seems too rigid a position to take. It ignores to a substantial degree the context for transition and how protracted its processes could 34
Id. at 443. 35
Tricia Olsen, Leigh Payne, Andrew Reiter & Eric Wiebelhaus-­‐Brahm, When Truth Commissions Improve Human Rights, 4 INT’L J. TRANSITIONAL JUST. 457, 458 (2010). 36
Fionnuola Ni Aolain & Colm Campbell, The Paradox of Transition in Conflicted Democracies, 27 HUM. RTS. QTR’LY 172, 173 (2005). 37
See Backer, supra note 32, at 444. 2012] Greiff & Duthie’s Transitional Justice a nd D evelopment 103 38
be. It also masks unproven assumptions about the success of transitions. Where transitional measures should herald an end to massive human rights abuses and authoritarianism, the reality on the ground in most cases is that often dictatorship and impunity only give way to illiberalism under the subterfuge of democracy. For example, in those countries in Africa where some positive results are ascribed to their transitional justice measures, this has long been tempered by an air of disappointment, as those most hurt prior to the transition are still waiting to be vindicated. In some instances, their 39
situations have become much worse in the transitory aftermath. Granted that development is often victim to authoritarianism and human rights abuse, the developmental situation will also not improve when transitional justice measures aimed at those legacies fail. Addison is among the contributors who posit that many transitions take 40
place against a backdrop of economic failure. For this reason mainly, it may be difficult to set terminal dates for transitions, because doing so would have consequences for the developmental agenda. However, transitions viewed as on-­‐going processes in which matters seemingly settled today may qualify for revision tomorrow assures the flexibility that is ordinarily a part and parcel of any developmental agenda. Therefore, there is a likelihood of a synergistic reinforcement between transitional justice and development in 41
the manner that Addison prescribes. There is added significance for the above position when it is considered that many countries, even developed ones without any previous authoritarian experiences, are going through varying transitional catharses of their own. Consequently, Posner and Vermeule differentiate between regime transitions and the wide variety of transitions that occur in consolidated democracies. They argue that legal and political transitions lie on a 42
continuum of which regime transitions are merely an endpoint. Transitional justice will 38
This is probably why it is very important to clarify “transition” especially in the context of “developing societies.” Some of the questions may be: “What constitutes a ‘transition’? Is the transition marked simply by the political choice to use of the rhetoric of justice and reconciliation, even in a context of minimum breach in the past, perhaps in order to ‘create the democratic possibility to re-­‐imagine the specific paths and goals of democratization’? Can a country have a succession of transitions and apply transitional justice measures each time? Are these measures appropriate even in contexts of weakly institutionalized states without a history of Western-­‐style democratic tradition”? See Bosire, supra note 31, at 8. 39
Ruth Hall & Lungisile Ntsebeza, Introduction, in THE LAND QUESTION IN SOUTH AFRICA: THE CHALLENGE OF TRANSFORMATION AND REDISTRIBUTION 2 (Lungisile Ntsebeza & Ruth Hall eds., 2007). See also Jody Kollapen, Keynote Address to the Opening Session of the Japan International Cooperation Agency and International Centre for Transitional Justice Workshop on Enhancing Socio-­‐Economic Justice in Societies in Transition: Case Studies on the African Continent, Cape Town, South Africa (2008). 40
De Greiff, supra note 8, at 130. 41
Id. at 130. 42
Eric Posner & Adrian Vermeule, Transitional Justice as Ordinary Justice, 117 HARV. L. REV. 761, 763 (2004). 104 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
obviously have a more tangible connection to development if understood in this sense and as part of an on-­‐going process that integrates development as well. It should also not be assumed without criticism that all transitional justice measures sit well with the developmental goal or its most important elements. As there are areas of convergence, there are obvious areas of conflict between transitional justice and development. Transitional Justice and Development has only expanded an ongoing discussion of which further insights need to be gleaned about the different ways in which specific transitional justice measures may conflict with other policy goals, development included. For example, it is claimed that reparations may unsettle property rights and 43
interfere with economic reform by creating new claims against existing property holders. 44
A similar point was made by Roht-­‐Arriaza and Orlovsky. A more critical analysis of the exact boundaries of transitional justice and development would most likely expose more of such areas of conflict with the possibility of developing remedial measures to address them. D. Conclusion One fact about Transitional Justice and Development: Making Connections cannot be ignored. It has placed theoretical emphasis on an issue that transitional justice and development practitioners have grappled with more recently. The treatment given to the two fields by the contributors to the collection and the symbiotic relationship now established between them assures a better understanding of both. This understanding in turn makes that relationship more meaningful for future research at the conceptual plain and, even more so, for their integration at the practical level. Without a doubt, defining the more detailed strands of this relationship invites further research. 43
Id. at 766. 44
De Greiff, supra note 8, at 173. Developments Case Note – Judgment of the European Court of Justice (Grand Chamber) of 1 March 2010: ECJ finally paves the way for unisex premiums and benefits in insurance and related financial service contracts ∗
By Felipe Temming A. Introduction The reference for preliminary ruling concerns the validity of Article 5(2) of Council Directive 2004/113/EC of 13 December 2004, implementing the principle of equal treatment between men and women in the access to and supply of goods and services (hereinafter 1
“Directive 2004/113”). The legal issue is the hotly debated question of whether and to what extent the sex of an insured person can be taken into account as a risk factor in the formulation of private contracts in insurance and related financial services. Quoting a North American precedent, Van Gerven, Advocate-­‐General (hereinafter “AG”), in his famous opinion in the 1993 case Ten Oever, recalled the prevailing and inherent insurance principle that normally governs the formation of insurance contracts. The subsidization of poorer risks by better risks would seem to be more common when it came to insure the flabby and fit under equal conditions, he remarked. However, the principle of treating different classes of risks as though they were the same for purposes of group insurance seemed all of a sudden be suspended when conflicting with the statistically proven difference in life expectancy between men and women. In the end Van Gerven, AG, had been in favor of gender-­‐neutrally calculated insurance premiums and benefits in the 2
area of occupational social pension schemes. Dr. Felipe Temming, LL.M. (LSE) is an Academic Counsel on limited appointment, currently with the Institute of European and German Labour and Social Law of the Albertus Magnus University of Cologne. The views expressed herein are solely those of the author. Email: felipe.temming@uni-­‐koeln.de. ∗
1
2
EC Directive 2004/113 of 21 December 2004, 2004 O.J. (L373) 37. Joined Opinions of Advocate General Van Gerven in Cases C-­‐109/91, C-­‐110/91, C-­‐152/91 and C-­‐200/91, Ten Oever and Others, 1993 E.C.R. I-­‐4879, at paras. 27-­‐39 and 66. 106 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
Due to the ECJ’s 1 March 2011 judgment in the case Assocation Belge des Consommateurs 3
Test-­‐Achats ASBL and Others, it is certain that this insurance principle also applies to the factor “sex.” The ECJ therefore, considers the possibility of calculating sex-­‐specific premiums and benefits to be direct discrimination on the grounds of sex, which cannot be justified. It follows that, from 21 December 2012 at the latest, unisex premiums and benefits will be mandatory for insurance contracts concluded from that date onwards. The ECJ does not explicitly address the question of whether existing insurance contracts will be excluded from the effects of this judgment. In the event that these contracts would be included, the Deutsche Aktuarvereinigung (German Association of Actuaries) estimated that financial reserves that would be necessary to fulfill these existing contracts would have totaled approximately 30 billion Euros. However, recital 18 (phrase 3) and recital 19 (phrase 4) of Directive 2004/113 suggest that this judgment does not concern existing contracts or contracts entered into prior to 21 December 2012. This leads to a two-­‐tier transitional regime. On the first tier, Member States that had not made use of the derogating provision laid down in Article 5(2) of Directive 2004/113, have to adhere to a transitional period of up to three years until they had to implement unisex premiums and benefits (21 December 2007, Article 5(1) of Directive 2004/113). On the second tier, those other Member States have to adhere to a transition period of five years (ending on 21 December 2012). Admittedly, this is merely a theoretical distinction because all Member 4
States made use of the derogation clause, either in part or in total. New references for a preliminary ruling cannot be excluded with certainty. This would especially concern the question of whether contracts that have been concluded before 21 December 2012 will 5
have to be adjusted and, thus, switch over to unisex premiums and benefits. In her 6
opinion, Kokott, AG, expressly argued in favor of this adjustment. 3
Case C-­‐236/09, Association belge des Consommateurs Test-­‐Achats ASBL, Yann van Vugt, Charles Basselier v. Conseil des ministres, NEUE JURISTISCHE WOCHENSCHRIFT (NJW) 907-­‐909 (2011). 4
See Yves Thiery, The opinion of A.G. Kokott on gender discrimination in insurance: effects for the insurance market, ZEITSCHRIFT FÜR GEMEINSCHAFTSPRIVATRECHT (GPR) 28, 29 (2011); Judith Kerschbaumer, Schluss mit dem kleinen Unterschied – EuGH verlangt Unisex-­‐Tarife (Stop the minor differences -­‐ ECJ requires unisex rates), ARBEITSRECHT IM BETRIEB (AiB) 363 (2011). 5
See e.g. Christa Tobler, Case note on Case C-­‐236/09: Association belge des Consommateurs Test-­‐Achats ASBL, Yann van Vugt, Charles Basselier v. Conseil des ministres, 48 Common Market Law Review (CML Rev.) 2041, 2057 (2011); Dagmar Felix & Roya Sangi, Unisex-­‐Tarife in der Privatversicherung – Eine auch kritische Auseinandersetzung mit der Forderung des EuGH nach geschlechtsneutraler Tarifierung (Unisex rates in the private insurance -­‐ A critical examination of the claim of the ECJ in gender-­‐neutral pricing), ZEITSCHRIFT FÜR EUROPÄISCHES SOZIAL-­‐ UND ARBEITSRECHT (ZESAR) 257, 262-­‐263 (2011) – no retroactive effect, but adoption of unisex tariffs in all contracts that have been entered into before 22 December 2012; Ulrich-­‐Arthur Birk, Pflicht zu Unisextarifen in der betrieblichen Altersversorgung? (Obligation to [have] unisex rates in occupational pension schemes?), DER BETRIEB (DB) 819 (2011); contra Reinhold Höfer, Zur Umsetzung der “Unisex-­‐Entscheidung“ des EuGH (To implement the "unisex" decision of the ECJ), DER BETRIEB (DB) 1334, 1335 (2011) – no retroactive effect and no adjustment of existing contracts; Christian Rolfs & Nathalie Binz, EuGH erzwingt ab Ende 2012 Unisex-­‐
Tarife für alle neuen Versicherungsverträge (Court gives until the end of 2012 for the enforcement of unisex rates for all new insurance contracts), VERSICHERUNGSRECHT (VersR) 714, 716, 718 (2011); Norbert Reich, Non-­‐
2012] The ECJ’s Approval of Unisex Premiums a nd B enefits 107 B. Facts of the Case I. The Directive 2004/113/EC Directive 2004/113 is based on Article 19(1) TFEU (ex-­‐Article 13 EC). Pursuant to Article 1, the TFEU aimed to lay down a framework for combating discrimination based on sex in access to and supply of goods and services, in order to put into effect the principle of equal treatment between men and women in the Member States. The material scope of this 7
directive affects the important area of the formation of insurance contracts. This is because within the countries of the EU, these types of contracts are often concluded and commonly use sex as an actuarial factor. They have a two-­‐sided character, as they do not necessarily disadvantage solely the group of women. Regarding health and pension insurance, the statistically noticeable longer life expectancy of women has a negative impact on women. As far as the former type of insurance is concerned, the different calculation of premiums has also been explained with the higher likelihood of women utilizing particular medical services, such as birth-­‐related services. The contrary applies to Risikolebensversicherung (term life insurances). In this case, women can benefit from their longer life expectancy and the earlier death risk negatively affects the Discrimination and the many Faces of Private Law in the Union – Some Thoughts After the “Test-­‐Achts” Judgment, THE EUROPEAN JOURNAL OF RISK REGULATION (EJRR) 283, 287 (2011); Kai Purnhagen, Zum Verbot der Risikodifferenzierung aufgrund des Geschlechts – Eine Lehre des EuGH zur Konstitutionalisierung des Privatrechts am Beispiel des Versicherungsvertragsrechts? (Kai Purnhagen: The prohibition on risk differentiation based on sex – Is this a doctrine of the ECJ on the constitutionalisation of private law at the instance of insurance contract law?), EUROPARECHT (EuR) 690, 703-­‐704 (2011); Christian Armbrüster, EuGH: Geschlechtsspezifische Unterscheidung bei Versicherungstarifen verletzt EU-­‐Grundrechte-­‐Charta (Justice Gender discrimination in insurance rates hurt the EU Charter of Fundamental Rights), 314339 KOMMENTIERTE BGH-­‐RECHTSPRECHUNG LINDENMAIER-­‐MÖHRING (LMK, 2011); Björn Kahler, Unisextarife im Versicherungswesen – Grundrechtsprüfung durch den EuGH (Unisex rates in the insurance industry -­‐ Of fundamental rights by the ECJ), NEUE JURISTISCHE WOCHENSCHRIFT (NJW) 894, 896 (2011); Dirk Looschelders, Aktuelle Auswirkungen des EU-­‐Rechts auf das deutsche Versicherungsvertragsrecht unter besonderer Berücksichtigung der geschlechtsspezifischen Tarifierung (Current impact of EU law on the German insurance contract law with particular emphasis on gender), VERSICHERUNGSRECHT (VersR) 421, 428 (2011); contra Jan D. Lüttringhaus, Europaweit Unisex-­‐Tarife für Versicherungen! (Europe-­‐wide unisex rates for insurance), EUROPÄISCHE ZEITSCHRIFT FÜR WIRTSCHAFTSRECHT (EuZW) 296, 299 (2011) – no retroactive effect, but possibly adjustment of existing contracts. 6
Cf. Opinion of Advocate General Kokott in Case C-­‐236/09, Association belge des Consommateurs Test-­‐Achats ASBL, Yann van Vugt, Charles Basselier v. Conseil des ministres [hereinafter “Consommateurs Test-­‐Achats et. al.”], at para. 81, available at: www.curia.eu (last accessed: 23 December 2011); Financial Times Deutschland, Kein Unisex für Alte – Gleiche Versicherungstarife für Männer und Frauen ab Ende 2012 / Pflicht gilt für Neukunden, nicht für Altverträge (No unisex rates for older persons -­‐ equal insurance conditions for men and women from the end of 2012 onwards/ Obligation concerns new customers, no application for already existing contracts), FTD, Dec. 21, 2011. 7
See e.g. Gregor Thüsing & Konrad von Hoff, Private Versicherungen und das Allgemeine Gleichbehandlungsgesetz (Private Insurance and the General Equal Treatment Act), VersR 1 (2007). 108 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
group of men. One must bear in mind that statistical differences in life expectancy vary according to which life table is being used with regards to the manifold types of insurance 8
contracts. According to the Statistisches Bundesamt (German Federal Agency for Statistics), between 2007 and 2009 the difference in life expectancy between men and women amounted to approximately five years in favor of the latter. However, pertinent 9
figures vary enormously. In addition, it is worth mentioning that statistical data that regards sex as a risk factor does not necessarily need to be linked to life expectancy. As far as vehicle insurances are concerned (for example third-­‐party motor vehicle liability insurance) women have to pay lower premiums because, from a statistical point of view, serious traffic accidents are more often caused by men than by women. Again, men are at a disadvantage. In this context, Directive 2004/113 is designed to put an end to this discriminating practice and provides in its Article 5(1) that Member States shall ensure that, in all new contracts concluded after 21 December 2007, the use of sex as a factor in the calculation of premiums and benefits for the purposes of insurance and related financial services shall not result in differences in individuals’ premiums and benefits. Interestingly enough, this principle is immediately narrowed by Article 5(2). Pursuant to this paragraph, Member States could decide before 21 December 2007 to permit proportionate differences in individuals’ premiums and benefits where the use of sex is a determining factor in the assessment of risk, based on relevant and accurate actuarial and statistical data. This far-­‐
reaching derogation was combined with two obligations imposed on the Member States vis-­‐à-­‐vis the Commission. The first was to inform the latter about the legal situation, and the second was to thoroughly review their decision to permit unisex premiums five years after 21 December 2007. The Commission was to draw up a summary report, which would include a review of the current practices of Member States in relation to Article 5 of Directive 2004/113, with regard to the use of sex as a factor in the calculation of premiums 8
A period life table is based on the mortality experience of a population during a relatively short period of time (e.g. for one calendar year), and enables one to calculate the mortality of an average person at a given age within this period. However, the resulting life expectancy does not represent the real life expectancy of a single person. In contrast, a generation life table or cohort life table takes into account that life expectancy depends on age, as well as the year of birth. Thus, trends in the development of mortality can be considered, too. Average life expectancy calculated on the basis of generation life tables can be used as an adequate estimate for the real life expectancy of a given birth cohort. Depending on the type of life table and the year it was calculated, the difference in remaining life expectancy of a 65-­‐year-­‐old man can vary from 12.4 up to 24.6 years. Furthermore, there are differences with regard to the extrapolation of data to estimate the future trend of life expectancy. They depend on the way that the insurance contract is financed (tax, capital funding, pay-­‐as-­‐you-­‐go, possibility of contribution increase) and what type of risk is insured (e.g. age, health or care). Another important aspect is the extent of conservative risk calculation an insurer is allowed to apply to his favor. 9
Deutsche Aktuarvereinigung, Sterbetafeln – Handwerkzeug der Aktuare: Verlängerung der Lebenserwartung – wie gehen Aktuare damit um? (Mortality Tables, Hand Tools of Actuaries: Extension of Life Expectancy, As Actuaries Go With It, 2007), available at: http://aktuar.de/custom/download/Folien-­‐DAV-­‐Werkstattgespraech-­‐
Sterbetafeln.pdf (last accessed: 23 December 2011); see also Kerschbaumer, supra note 4 at 363, 364; Höfer, supra note 5, at 1334, 1335; Birk, supra note 5. 2012] The ECJ’s Approval of Unisex Premiums a nd B enefits 109 and benefits (Article 16 of Directive 2004/113). The Member States should review their decision five years after 21 December 2007. However, Member States could only make use of the derogation clause in Article 5(2) of Directive 2004/113 where domestic legislation 10
had not already applied the unisex rule. II. The Effect of Article 5(2) Directive 2004/113/EC: An Indefinite Exemption Clause Thus, the possible effect of the derogation clause in Article 5(2) of Directive 2004/113 was that the principle of gender-­‐neutrally calculated premiums and benefits enshrined in Article 5(1) could not be ubiquitously realized within the EU, should the majority or even all Member States continue with their discriminating practice. This apprehension proved true insofar as all Member States allowed the retention of sex-­‐
11
specific differences in insurance premiums and benefits, in total or in part, even after the 12
transitional period had expired. This concerned already existing contracts, as well as new contracts (concluded from 21 December 2007 onwards). As the Directive 2004/113 only sets out an obligation incumbent on the Member States to inform and review their legal situation with regard to Article 5, it was consequently possible that Member States could retain the permission to use sex as an actuarial factor for insurance premiums and benefits forever. This is because a compulsory reform of Article 5 initiated by the Commission concerning this matter is not provided for in the Directive 2004/113. In Belgium, pursuant to the “Law of 10 May 2007” combating discrimination between men and women, which was amended by the “Law of 21 December 2007” regarding the treatment of sex in insurance matters, this derogation applies only to life assurance 13
contracts. Despite this narrow exception, the Belgium Constitutional Court (cour constitutionelle) doubted the validity of the derogation clause laid down in Directive 2004/113. As the Law of 21 December 2007 makes use of the derogation provided for under Article 5(2) of Directive 2004/113, the Belgium Constitutional Court first decided to 10
Recital 19 of Directive 2004/113/EC; see also, supra note 4. 11
The German legislature, for instance, had exempted all kinds of private insurance contracts from the prohibition to use sex as a factor in the calculation of premiums and benefit. See the Allgemeines Gleichbehandlungsgesetz (General Equal Treatment Act), sect. 20(2) and 19(1)(2), Aug. 18, 2006, Bundesgesetzblatt (BGBl) I, 1897 1910. However, the exception proves the rule as so-­‐called private Riester pension contracts as well as private long-­‐term care insurances have to provide for unisex premiums and grant corresponding benefits: see Gesetz über die Zertifizierung von Altersvorsorge-­‐ und Basisrentenverträgen (Act on the Certification of Basic Pension and Annuity Contracts), sect. 1(1)(1), 23(1), Jun. 26, 2001, BGBI 1 S, 1768), taken in conjunction with Sozialgesetzbuch XI (German Social Code), sect. 110(2)(2) lit. (d), 110(3)(3), May 26, 1994, BGBI 1 S, 1014. 12
See supra note 4. 13
Moniteur belge 66175 (31 December 2007). 110 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
stay the action for annulment and make a reference for preliminary ruling seeking to ascertain from the European Court of Justice if Article 5(2) of Directive 2004/113 is compatible with primary EU law, in particular with fundamental rights. C. Reasoning of the ECJ I. Article 5(2) of Directive 2004/113 is Invalid The ECJ shares the doubts of the Belgium Constitutional Court and holds the derogation clause of Article 5(2) of Directive 2004/113 is invalid, effective 21 December 2012. The legal yardstick applied by the ECJ is Article 21 and Article 23 of the Charter of Fundamental Rights of the European Union (hereinafter “the Charter”), in conjunction with Article 6(2) EU, although Directive 2004/113 came into force well before 1 December 2009. But like in 14
previous judgments the ECJ obliges the EU legislature to adhere to its self-­‐imposed 15
normative guidelines. Recital 4 of Directive 2004/113 explicitly refers to Article 21 and Article 23 of the Charter. It follows from that the EU legislature would act contradictory if this reference was just paying mere lip service to the Charter. Recalling the principle of estoppel, the principle of venire contra factum proprium, and the Charter’s reaffirmative character, it is justifiable to measure the derogation clause of Article 5(2) of Directive 2004/113 against these Charter provisions, whose unwritten counterparts formed part of 16
primary law well before 1 December 2009. The reaffirmative character of the Charter, as well as the special nature of human rights, are able to distinguish this kind of reference to EU soft law in a directive’s or regulation’s recital (as it was the case with regard to the 17
Charter before it came to force) from references to other kinds of EU soft law. On the decisive one-­‐and-­‐a-­‐half pages of its judgment, the ECJ not only stresses that the EU legislature is bound by fundamental rights, but also emphasizes the EU legislature’s positive obligation, derived from Article 3(2) EU and Article 8 TFEU, to combat social exclusion and discrimination and to promote social justice, social protection, and equality between men and women when exercising their competence conferred upon in Article 19 TFEU (ex-­‐Article 13 EC). 14
See joint Cases C-­‐92/09 and C-­‐93/09, Volker and Markus Schecke and Eifert, EuZW 939, para. 46 (2010); Case C-­‐
540/03, Parliament v. Council, 2006 E.C.R. I-­‐5769,at paras. 4, 38 (“Family Reunification”). 15
Consommateurs Test-­‐Achats et. al, supra note 6, at para. 17 (2011). 16
Cf. Opinion of Advocate General Kokott in Consommateurs Test-­‐Achats et. al, supra note 6, at para. 31. 17
For a skeptical review, see Purnhagen, supra note 5, at 690, 697-­‐698, with regard to the Draft Common Frame of Reference (DCFR), which is already being cited by several Advocates General. 2012] The ECJ’s Approval of Unisex Premiums a nd B enefits 111 II. Irresolvable Conflict with Principle of Coherence Thereafter, the ECJ mentions the important hurdle which the EU legislature has to abide by when enacting a legal act like Directive 2004/113: “when such action [based on Article 19 TFEU] is decided upon, it must contribute, in a coherent manner, to the achievement of the intended objective, without prejudice to the possibility of providing for transitional 18
periods or derogations of limited scope.” It follows that, in the view of the ECJ, it would be consistent with the principle of coherence to provide for a transitional period of three years in Article 5(1) of Directive 2004/113 in order to implement the application of the rule of unisex premiums and benefits gradually because the use of actuarial factors related to sex was widespread in the provisions of insurance contracts when the Directive 2004/113 was enacted. In contrast to the aforementioned transitional period it is, however, contradictory to enact a provision like Article 5(2) of Directive 2004/113. In the ECJ’s opinion, this provision does not constitute a derogation of limited scope. Instead, there is a risk that EU law may permit the derogation from the principle of equal treatment between men and women provided for in Article 5(2) of Directive 2004/113 to persist indefinitely. The ECJ continues by outlining that such a provision, which enables the Member States in question to maintain – without temporal limitation -­‐ an exemption from the rule of unisex premiums and benefits, would work against the achievement of the objective of equal treatment between men and women -­‐ which is the purpose of Directive 2004/113 -­‐ and would be incompatible with Article 21 and Article 23 of the Charter. That provision must, therefore, be considered to 19
be invalid upon the expiry of an appropriate transitional period. The deadline set by the ECJ is 21 December 2012 and this date refers to the five-­‐year period when, after having transposed the Directive 2004/113, Member States should re-­‐examine the justification for 20
exemptions laid down in Article 5(2) of Directive 2004/113. 18
Consommateurs Test-­‐Achats et. al, supra note 6, at para. 21; Tobler, supra note 5, at 2041, 2051. 19
Consommateurs Test-­‐Achats et. al, supra note 6, at paras. 31-­‐33. 20
Recital 19, supra note 10. 112 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
D. Comment and Appraisal I. A Historic Judgment 21
The judgment of the ECJ’s Grand Chamber is, indeed, correct. It is a historic judgment 22
with precedential effect in other proceedings before the ECJ and will be considered a milestone in combating discrimination based on sex. It undertakes another step towards 23
the constitutionalization of European Private Law. Given the EU’s limited competency in the wider areas of private law prior to the recent treaty revisions, this constitutionalization is a relatively young process. Additionally, the ECJ’s ruling can be seen as a glaring setback to the lobbying organizations of the insurance sector, as well as to part of the EU legislature (most likely the Council of 24
the EU), which must have been swayed by these lobbying groups. The reason is more or less obvious: Article 5(2) of Directive 2004/113, a provision that was not contained in the 21
Tobler, supra note 5, at 2041, 2047 et seq.; Felix & Sangi, supra note 5, at 257, 261; Birk, supra note 5 at 819; Kerschbaumer, supra note 4, at 363, 365; Rolfs & Binz, supra note 5 at 714, 716, 718; Reich, supra note 5, at 283, 287 et seq.; contra Looschelders, supra note 5, at 421, 425 et seq.; Purnhagen, supra note 5, at 690, 693 et seq.; Lüttringhaus, supra note 5, at 296 et seq.; Höfer, supra note 5, at 1334; Armbrüster, supra note 5; Kahler, supra note 5, at 894 et seq. 22
Cf. Case 66/80, ICC, 1981 E.C.R. 1191, at paras. 13-­‐15. 23
Tobler, supra note 5, at 2041, 2048-­‐2049; Purnhagen, supra note 5 at 690, 693-­‐695. In contrast, the foundations of the process of constitutionalization of German Private Law were already laid in the 1950s, cf. BVerfG NJW 257-­‐258 (1958); RAINER WAHL, HERAUSFORDERUNGEN UND ANTWORTEN: DAS ÖFFENTLICHE RECHT DER LETZTEN FÜNF JAHRZEHNTE (Challenges and Responses: Public Law of the Last Five Decades) 32-­‐35 (2006). It should be noted that the principle of equality is by no means a foreign concept in private law, cf. MICHAEL GRÜNBERGER, PERSONALE GLEICHHEIT. DER GRUNDSATZ DER GLEICHBEHANDLUNG IM ZIVILRECHT (Personal Equality: The Principle of Equal Treatment in Civil Law, 2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1895366 (last accessed: 23 December 2011); FELIPE TEMMING, ALTERSDISKRIMINIERUNG IM ARBEITSLEBEN (Age Discrimination in Working Life) 88 (2008). 24
Cf. Kurt Pärli, Verbot geschlechtsspezifischer Prämien bei Versicherungsverträgen (Prohibiting gender-­‐
based premiums for insurance contracts), HAFTUNG UND VERSICHERUNG (HAVE/REAS) 153, 157-­‐158 (2011); Tobler, supra note 5, at 2041, 2053, 2060 (2011); Press Release, Preliminary Agreement on Gender Equality Directive. European insurers welcome opportunity to continue using gender in pricing (Comité Européen des Assurances), Oct. 4, 2004, available at: www.cea.eu/uploads/Modules/Newsroom/communique183.pdf (last accessed: 23 December 2011); Elisabeth Schrödter (MoEP), Der Europäische Gerichtshof fordert Unisextarife, 1 EUROPA SOZIAL 2 (2011), available at: www.elisabeth-­‐schroedter.de/media/europa-­‐sozial/EuSoz11-­‐1web.pdf (last accessed: 23 December 2011); Ines Kopischke, Staat und private Altersvorsorge. Entscheidungsprozesse und Debatten zu “Unisex-­‐Tarifen” in der Politik der Europäischen Union und der Bundesrepublik Deutschland (State and private pensions. Decision-­‐making processes and debates on "unisex rates" in the policy of the European Union and the Federal Republic of Germany), 18 ARBEITSPAPIER 46-­‐60 (2010), available at: www.uni-­‐
bielefeld.de/(en)/soz/personen/Leisering/pdf/Arbeitspapier-­‐18neu-­‐IK-­‐Staat-­‐und-­‐private-­‐Altersvorsorge.pdf (last accessed 23 December 2011); Daniela Kuhr, Männer. Frauen. Menschen (Men. Women. People.), v. 2.3 SÜDDEUTSCHE ZEITUNG (2011), available at: www.sueddeutsche.de/geld/2.220/versicherungs-­‐urteil-­‐des-­‐eugh-­‐
maenner-­‐frauen-­‐menschen-­‐1.1066618 (last accessed: 23 December 2011). 2012] The ECJ’s Approval of Unisex Premiums a nd B enefits 113 Commission’s original proposal for this Directive, was on trial. Furthermore – and in line with the view upheld by the then-­‐Commission during the proceedings in the case Ten 25
Oever almost 20 years ago – the present Commission declared itself firmly against allowing differences based on sex in respect of premiums and benefits of insurance contracts and considered them to be encroaching upon the right not to be discriminated against on the grounds of sex. Against this background, it was all the more surprising that, in this reference for preliminary ruling, the Commission then took the view, right up until the oral hearing, that Article 5(2) of Directive 2004/113 did not infringe the principle of equal treatment between men and women, but rather was an expression of that 26
principle. Among others, it must have been this inexplicable and unconvincing stance of the Commission that caused Kokott, AG, to make a clear case for unisex premiums and 27
28
benefits and, thus, to position herself against sex-­‐specific actuarial factors. In essence, the only difference between her opinion and the ECJ’s ruling is that Kokott, AG, favored a transitional period which was 15 months longer than the one finally adopted by the ECJ (i.e., the three years beginning to run with the delivery of the judgment, ending on 1 March 2014, rather than on 21 December 2012). II. The Outstanding Significance of the Prohibition of Discrimination on the Grounds of Sex Once again, this judgment proves that justifying direct discrimination based on the grounds of sex will be but a mere theoretical possibility. As with the prohibition of discrimination on the grounds of nationality (and disability, race or ethnic origin), the ECJ applies a (very) 25
Joined Opinions of Advocate General Van Gerven, supra note 2, at paras. 34-­‐39, at para. 28. 26
Proposal for a Council Directive implementing the principle of equal treatment between women and men in the access to and supply of goods and services, COM (2003) 657 final of 5 November 2003, at 6-­‐9. 27
Cf. Opinion of Advocate General Kokott in Consommateurs Test-­‐Achats et. al, supra note 6; contra Hans-­‐Peter Schwintowski, Geschlechtsdiskriminierung durch risikobasierte Versicherungstarife? (Gender discrimination through risk-­‐based insurance rates?), VersR 164 (2011); Ulrich Karpenstein, Harmonie durch die Hintertür? Geschlechtsspezifisch kalkulierte Versicherungstarife und das Diskriminierungsverbot (Harmony through the back door? Gender-­‐specific rates calculated insurance and non-­‐discrimination), EuZW 885 (2010); Holger M. Sagmeister, Geschlechtsspezifische Versicherungstarife tatsächlich europarechtswidrig? (Gender-­‐specific insurance rates actually contrary to European law?), VersR 187 (2011). 28
Cf. Opinion of Advocate General Kokott in Consommateurs Test-­‐Achats et. al, supra note 6, at paras. 70, 72. Nowhere in her opinion does Kokott, AG, conclude sex-­‐specific insurance premiums could be justified if they are necessitated because of clear biological differences between men and women (cf. paras. 52, 61-­‐69 of her opinion). If at all, she has generally suggested direct discriminations on the grounds of sex could be justified under certain conditions, cf. para. 60: “…. only permissible if it can be established with certainty that there are relevant differences between men and women which necessitate such discrimination.” 114 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
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strict scrutiny test with respect to the former. This is more than justifiable, even more so as the Member States themselves – in virtue of their role as the Masters of the treaties – strengthened and reinforced this prohibition of discrimination at the level of primary EU law, as the above quoted Article 3(2) EU and Article 8 TFEU clearly indicate. With regard to the special and long-­‐standing principle of equal pay now enshrined in Article 157(1) TFEU (ex-­‐Article 141(1) EC), justifiable direct discrimination is virtually ruled 30
out. Regarding occupational pension schemes and the pertinent contributions made by the employees, Van Gerven, AG (expressly), as well as the ECJ (obiter dicta) argued against 31
the application of actuarial factors that used sex as one of the determining risk factors. 32
This stance has now also been adopted by Kokott, AG. Although the ECJ did not expressly transfer this view to the Directive 2004/113, it is submitted that this line of argumentation 33
can be generalized. III. Starting Point: Fundamental Rights The legal starting point which the ECJ, as well as Kokott, AG, have chosen is fully appropriate: the EU legislature is bound by the fundamental rights of the EU. It is immaterial that Article 5(2) of Directive 2004/113 constitutes an opening clause in favor of the Member States, because otherwise it would be possible to circumvent this legal 34
adherence to higher-­‐ranking primary EU law. Furthermore, the question of whether the legal yardstick is Article 21 and Article 23 of the Charter, in conjunction with Article 6(2) EU, needs not be answered. This is because the prohibition of gender discrimination was an accepted general principle of EU law long before the Treaty of Lisbon and Charter came 29
See TEMMING, supra note 23, at 473 et seq. 30
Very clear in e.g. Case C-­‐356/09, Christine Kleist, NZA 1401, 1403, at paras. 41-­‐43 (2010). 31
Joined Opinions of Advocate General Van Gerven, supra note 2, at paras. 34-­‐39; Case C-­‐152/91, David Neath v. Hugh Steeper Ltd., 1993 E.C.R. I-­‐6935, at para. 31; Case C-­‐200/91, Coloroll Pension Trustees Limited v. Russel and Others, 1994 E.C.R. I-­‐4389, at para. 80; see also Marita Körner, Unisex-­‐Tarife und Entgeltgleichheitsgrundsatz bei der Riester-­‐Eichel-­‐Rente (Unisex rates and equal pay principle in the Riester-­‐Eichel pension scheme), Neue Zeitschrift für Arbeitsrecht (NZA) 760, 762 et seq. (2004); Felipe Temming, Unisex-­‐Tarife auf dem verfassungsrechtlichen und europarechtlichen Prüfstand (Unisex Rates on the constitutional and European law test), ZESAR 72, 76 et seq. (2005). 32
Cf. Opinion of Advocate General Kokott in Consommateurs Test-­‐Achats et. al, supra note 6, at para. 69. 33
Contra Looschelders, supra note 5, at 421, 427, 428. It is submitted that the ECJ’s reasoning also means that the financial source with which the insured person pays its premiums is totally irrelevant. 34
Felix & Sang, supra, note 5, at 257, 258-­‐259; contra Looschelders, supra note 5, at 421, 425– but see also Case C-­‐540/03, Parliament v. Council, 2006 E.C.R. I-­‐5769, at paras. 71, 76 (“Family reunification”). 2012] The ECJ’s Approval of Unisex Premiums a nd B enefits 115 35
into force. The same applies to the principle of equal treatment of men and women and the corresponding mandate to the EU legislature, which were prominently enshrined in ex-­‐
Article 2 EC and ex-­‐Article 3(2) EC (now Article 3(3) subparagraph 2 EU and Article 8 TFEU). 36
Not even critics of this judgment can seriously contest this point. However, the lines of legal argumentation to declare Article 5(2) of Directive 2004/113 invalid adopted by Kokott, AG, on the one hand, and the ECJ, on the other, differ to a great extent and this is noteworthy. While the former analyses the justifiability of direct discrimination on the grounds of sex by means of statistical data in a detailed manner and negates this possibility in the end, the ECJ in contrast resorts to a principle of coherence. The ECJ applies this principle in the areas of age discrimination (however not totally free of 37
38
inconsistencies! ) and tax law, for example. IV. Concrete Legal Yardstick: Principle of Coherence The legal source of the principle of coherence, but above all the prerequisites of its 39
application and its legal impact, urgently need dogmatic contouring. Some thoughts can be offered here. In German constitutional law, this principle is known as the “requirement 40
of consistency” and it is rooted, among others, in the general principle of equality 41
42
(Article 3(1) Fundamental Law ). Thus, it can be a legal yardstick for lower-­‐ranking law. This principle requires that the legislature establish consistency not only within the whole 35
Case 43/75, Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [hereinafter “Defrenne II”], 1976 E.C.R. 455, at para. 12; Case 149/77, Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [hereinafter “Defrenne III”], 1978 E.C.R. 1365, at paras. 26-­‐27. 36
See e.g. Kahler, supra note 5, at 894. 37
Introduced in Case 88/08, David Hütter v. Technische Universität Graz, 2009 E.C.R. I-­‐5325, at paras. 46-­‐47; Case C-­‐341/08, Domnica Petersen v. Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-­‐Lippe and Others, NJW 587-­‐592 (2010), at paras. 53 et seq. These decisions have been inconsistently applied in Case C-­‐45/09, Gisela Rosenbladt v. Oellerking Gebäudereinigungsgesellschaft mbH [hereinafter “Gisela Rosenbladt”], NZA 1167-­‐1171 (2010), with an affirmative case note by Jobst-­‐Hubertus Bauer & Martin Diller, EuGH – Rosenbladt – rosiges oder dorniges Blatt für Altersgrenzen? (ECJ -­‐ Rosenbladt -­‐ Rosy or thorny leaf for age limits?), DB 2727 (2010). 38
Examples given by Kahler, supra note 5, at 894, 897, and also in notes 43 and 44. 39
Id. – However it is not convincing to describe the principle of coherence as a form of reduced scrutiny by means of a fundamental right; see also Purnhagen, supra note 5, at 690, 696. 40
German: Gebot der Folgerichtigkeit 41
See generally, Grundgesetz der Bundesrepublik Deutschland (The German Basic Law), available at: www.gesetze-­‐im-­‐internet.de/englisch_gg/index.html (last accessed: 23 December 2011). 42
Contra Purnhagen, supra note 5, at 690, 696-­‐697 (2011), who distinguishes between secondary EU law and national legislation of Member States. However, this aspect is immaterial. 116 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
43
legal order, but also within special areas of law and pertinent subsystem created therein. It obliges the legislature to give objective and comprehensible reasons for what it is enacting and to explain when deviating from a principle. The Federal Constitutional Court has also named this requirement the “concept of systemic consistency” or “systemic 44
45
justice” and it is a well-­‐known concept, especially in the area of tax law. However, the Federal Constitutional Court differentiates between an infringement of the principle of consistency on the one hand and an infringement of the principle of equality 46
on the other, thereby granting the legislature a certain margin of appreciation, which also depends of the complexity of the subject matter. This is because an infringement of the principle of consistency does not necessarily mean the principle of equality has likewise been encroached upon. This is only the case if the chosen regulation falls short of attaining 47
the legislature’s goal in principle. Roughly speaking, the requirement of consistency and the concept of systemic consistency primarily have a disciplinary effect on the legislature because it demands that the legislature act logically when enacting and inserting new legal rules into the legal order. The ECJ applies the principle of coherence within other areas of EU law, too. Many such cases concern fundamental freedoms, as can be seen in the cases concerning the gambling 48
49
50
law, advertising, and health. Nonetheless, this principle has also recently played a 43
Lerke Osterloh, Article 3 in KOMMENTAR ZUM GRUNDGESETZ (Commentary on the Constitution, Michael Sachs ed., th
6 ed., 2011) margin numbers 98-­‐103; PAUL KIRCHHOF, VII HANDBUCH DES STAATSRECHTS (Handbook on State Law) 118 (Josef Isensee & Paul Kirchhof ed., 3rd ed., 2007), margin numbers 176-­‐181; FRANZ-­‐JOSEPH PEINE, SYSTEMGERECHTIGKEIT (Justice System, 1985); CHRISTOPH DEGENHART, SYSTEMGERECHTIGKEIT UND SELBSTBINDUNG DES GESETZGEBERS ALS VERFASSUNGSPOSTULAT (The Justice System and the Self-­‐ Binding of the Legislature as a Constitutional Postulate, 1976). 44
See PEINE, supra note 43. 45
E.g. BVerfG NJW 48, 49 ff. (2009); BVerfG NVwZ 568, 571 (2005); BVerfG Aktuelles Steuerrecht (AktStR) 476, 477 (2000); BVerfG NJW 1815, 1816 (1992); BVerfG NJW 1815, 1816 (1992). 45
See PEINE, supra note 43. 46
E.g. BVerfG NJW 1815, 1816 (1992); BVerfG NZA 161, 168 (1990); BVerfG NJW 2231, 2233 (1988). 47
See for example, 84 Entscheidungen des Bundesverfassungsgerichts (Decisions of the Federal Constitutional Court, BVERFGE) 239 (271) (Ger.). 48
Case C-­‐64/08, Ernst Engelmann, EuZW 821, 822, at para. 35 (2010); Case C-­‐46/08, Carmen Media Group Ltd., NVwZ 1422, 1424, at para. 55 (2010); Case C-­‐243/01, Piergiorgio Gambelli, 2003 E.C.R. I-­‐13031, at para. 67; Case C-­‐42/07, Liga Portuguesa de Futebol Profissional and Bwin International, 2009 E.C.R. I-­‐7633, at paras. 59-­‐61. 49
Case C-­‐500/06, Corporación Dermoestética SA, 2008 E.C.R. I-­‐5785, at paras. 39-­‐41. 50
Case C-­‐169/07, Hartlauer, 2009 E.C.R. I-­‐1721, para. 55. 2012] The ECJ’s Approval of Unisex Premiums a nd B enefits 117 51
prominent role as regards age discrimination. But, it does not disclose its doctrinal origins. Furthermore, it seems to have a bigger impact and effect on Member States’ legislation than its German counterpart. By availing itself of this principle, the ECJ in the case Test Achats gives the impression that it is taking a rapid shortcut through the task of testing the legality of sex-­‐specific differences in premiums and benefits in light of higher-­‐
ranking EU law. However, bearing in mind the close relationship between the principle of coherence and the principle of equality, it is arguable that the application of the former principle is nothing more than an analysis of Article 5(2) of Directive 2004/113 in the light of the principle of equality. This is because the general dogmatic structure of scrutiny is the same. Above all, it is about the appraisal of reasons adduced to justify Article 5(2) of Directive 2004/113. The way of appraisal is set by the level of scrutiny in casu. In the case Test Achats, the level of scrutiny depends on whether the differentiation drawn is on the grounds of sex, which triggers a very strict scrutiny test and, therefore, the application of a proportionality test. The similarity of the principle of coherence and the prohibition on the discrimination on the grounds of sex derives from the fact that both stem from the principle of equality. The prohibition on the discrimination on the grounds of sex is a special principle of equality and it is this common trait that allows the implementation of the principle of coherence within Article 21 and Article 23 of the Charter. This could explain why the principle of coherence in discrimination cases only appears 52
within the justification -­‐ respectively the proportionality test — which becomes indirectly 53
apparent in paragraphs 21 and 32 of the judgment . Because, should the measure chosen by the EU legislature not work toward the attainment of the chosen or already prescribed purpose in a consistent way, it cannot be suitable or apt in the first place and, therefore, 54
would not meet the test of proportionality. The legal review of the interrelation between the purpose of an act and the chosen measure is an inherent element of the principle of 51
Case C-­‐341/08, Domnica Petersen, 2010 E.C.R. I-­‐47, para. 53; Case C-­‐88/08, David Hütter, 2009 E.C.R. I-­‐5325, para. 47. 52
This also applies to the area of fundamental freedoms as they prohibit restrictions as well as discriminations at the same time. Fundamental freedoms grant a special prohibition of discrimination on the grounds of nationality (in contrast to the general prohibition laid down in Article 18 TFEU), as well as a liberty impeding mere restrictions that do constitute neither direct nor indirect discrimination. 53
In the area of age discrimination see e.g. Case C-­‐250/09, Vasil Ivanov Georgiev, NZA 29, 32, at paras. 55-­‐56 (2011)., Should a fundamental right (i.e. not an equality right) be the main legal yardstick and one wishes to analyze the case under the aspect of coherence, as well, the correct legal yardstick would be a given fundamental right in conjunction with Article 20 of the Charter. Article 20 of the Charter is where the principle of coherence is rooted; c.f. Luzius Wildhaber, Protection against Discrimination under the European Convention on Human Rights, BALTIC YEARBOOK OF INTERNATIONAL LAW 71 (2002). 54
E.g. Case C-­‐341/08, Domnica Petersen v. Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-­‐Lippe and Others, NJW 587, 590-­‐591, at paras. 58-­‐62 (2010). 118 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
55
proportionality and concretizes the level of suitability and necessity. Thus, it is not indefensible to refrain from striking a balance with conflicting fundamental rights of the other private party involved in this private dispute, in this case Article 16 of the Charter (freedom to conduct a business). Such aspects have to be considered only at the level of 56
appropriateness – subsequent to the affirmation of suitability and necessity. Having in mind the prominent standing the ECJ attributes to the principle of equal treatment between men and women, just like the prohibition of discrimination on the grounds of sex, this could be one reason for the apodictic style of its reasoning. It should be recalled that, in the groundbreaking case Marshall I, the ECJ needed only a single, concise paragraph to 57
reject the establishment of lower mandatory retirement ages for women in 1986. Regarding Article 5 of Directive 2004/113 and in light of the foregoing, it is convincing to apply the principle of coherence and to, thereby, catch the inconsistency. Recitals 18 and 19 of Directive 2004/113 make it evident that the EU legislature establishes a principle of rule and exception as a starting point as far as Article 5 of Directive 2004/113 is concerned. Contrary to the submissions the Council put forth later, the ECJ concludes from the foregoing that Directive 2004/113 is based on the assumption that, for the purposes of applying the principle of equal treatment for men and women, the respective situations of men and women with regard to insurance premiums and benefits contracted by them are 58
comparable. If that is the case, Article 5(2) of Directive 2004/113 completely inverts the principle that insurance premiums and benefits be gender-­‐neutrally computed. This is because it takes away all the protection that Article 5(1) of Directive 2004/113 gives the individual, and that, above all, for an indefinite period of time (no compulsory reform of Article 5(2) of Directive 2004/113). The former clause clearly does not have the effect of a “derogation of limited scope” all the more because even the first option (the possibility of 59
providing for transitional periods ) runs totally dry. For Member States that had not provided for unisex premiums and benefits so far and do not want to introduce them gradually, this legal situation is being perpetuated rather than gradually abolished. However, having the principle of equal treatment between men and women within the countries of the European Union being applied outright and at the same time not at all regarding the same subject matter leads to patchy and inconsistent situation and runs 55
This applies above all to the principle of proportionality in the area of public law. With regards to the legal Situation in Germany, see MARCUS BIEDER, DAS UNGESCHRIEBENE VERHÄLTNISMÄßIGKEITSPRINZIP ALS SCHRANKE PRIVATER RECHTSAUSÜBUNG (2007); MICHAEL STÜRNER, DER GRUNDSATZ DER VERHÄLTNISMÄßIGKEIT IM SCHULDVERTRAGSRECHT (2010). 56
Contra Lüttringhaus, supra note 5, at 296, 298; Looschelders, supra note 5, at 421, 426; Felix & Sangi, supra note 5, at 258, 259. 57
Case 152/84, M. H. Marshall v Southampton and South-­‐West Hampshire Area Health Authority, 1986 E.C.R. 723, at para. 36. 58
Cf. Tobler, supra note, at 2041, 2050-­‐2056. 59
See Consommateurs Test-­‐Achats et. al, supra note 6, at para. 21. 2012] The ECJ’s Approval of Unisex Premiums a nd B enefits 119 totally counter to one of the most important political objectives of the ECJ that is, the 60
uniform application of EU law in all the Member States. V. “Derogations of Limited Scope“ – Possible Leeway for European Legislature? The ECJ does not answer the obvious question of what it would consider a justifiable derogation of limited scope when sex-­‐specific actuarial factors are being used in the area of the formation of insurance contracts. However it is submitted that the margin of 61
discretion the EU legislature enjoys is more than narrow, all the more because Kokott, AG, considers the requisites set out in Article 5(2) of Directive 2004/113/EG to be too 62
global and, thus, not apt to meet the test of proportionality : “[t]he use of a person’s sex as a kind of substitute criterion for other distinguishing features is incompatible with the principle of equal treatment for men and women. It is not possible in that way to ensure that different insurance premiums and benefits for male and female insured persons are based exclusively on objective criteria which have nothing to do with discrimination on 63
grounds of sex.” Should a new case reach the ECJ, it is likely that other Advocate Generals will concur with her or Van Gerven’s opinion. In addition, it has to be noted that, pursuant to Article 19 TFEU, the Council needs to reach unanimity in order to reform Article 5 of 64
Directive 113/2004. “In that sense, Test-­‐Achats is here to stay,” as Tobler aptly puts it. VI. No Detrimental Treatment Based on Mere Group Membership Finally, the ECJ’s ruling is noteworthy because the debate as to the legitimacy of sex-­‐
specific insurance premiums and benefits raises a general problem that is not only linked to differences on the grounds of sex, but also, for example, to ones on the grounds of age. In both of the cases, the point is whether and, in particular, to what extent a human right or a fundamental right (within the meaning of Article 21 of the Charter) can allow the legislature, social partners (unions, employers’ associations, works councils), or an individual employer to standardize their rules and framework by means of crude elements 60
ULRICH HALTERN, EUROPARECHT (European Law, 2nd ed., 2007), at margin number 598; Purnhagen, supra note 5, at 690, 695. 61
Looschelders, supra note 5, at 421, 429; C.f. Case C-­‐356/09, Christine Kleist, NZA 1401, 1403, at para. 41-­‐43 (2010). 62
Cf. Opinion of Advocate General Kokott in Consommateurs Test-­‐Achats et. al, supra note 6, at paras. 51, 61, 64-­‐
65. 63
Id. at paras. 67. 64
Tobler, supra note 5, at 2041, 2060; Financial Times Deutschland, supra note 6. 120 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
or proxies and, consequently, to treat the contractual partner (respectively, employees) to 65
a greater extent as a group member rather than as an individual. Age and sex are simple distinctions and easy to grasp. They minimize transaction costs and the examination of the individual case. However, it is doubtful that the premise that sex stands as a proxy is totally true. It is certainly true that, from a statistical point of view, women live longer than men – an aspect that plays a prominent role in the formation life assurance, pension, and health insurance contracts. Indeed, the female sex might correlate with a longer life expectancy. However, the proposition that there is a genuine causal link 66
between sex and longevity can be questioned, with good reason. There is research, for example, concerning the mortality of man and women in Bavarian monasteries of friars and convents proving that, under identical living conditions, the difference in average life expectancy is constantly between zero and two years, in favor of women. It is inferred from this finding that the rest of the gender-­‐specific differences in mortality could consequently be attributed to behavioral and environmental causes. Other studies suggest that behavioral and environmental factors would also be crucial (for example: marital status, socioeconomic factors, employment/unemployment, area of residence, and smoking or eating habits). The pertinent research can be summed up to the effect that lifestyle can be conceived as a multidimensional factor that has a greater causal 67
impact on the individual’s life expectancy than the person’s sex. At best, sex is not more than a proxy for other secondary factors indicating life expectancy and is being used by insurance companies as a deciding parameter for risk evaluation because it is 68
(economically) convenient to grasp and correlates with this risk. However, men and women are almost equal and homogenous with respect to this risk feature. There is no clear causal link between sex and longevity. Therefore, it is legitimate to balance the risk across the whole collective “men and women.” To provide an equal balance within the 69
community of the insured persons is a basic principle of private insurance contracts. The legal reason why sex cannot be used as a proxy is the existence of the prohibition on the discrimination on the grounds of sex. It is a human right and deviating from it demands 65
See GABRIELE BRITZ, EINZELFALLGERECHTIGKEIT VERSUS GENERALISIERUNG (2008); TEMMING, supra note 23; PURNHAGEN, supra note 5, at 690, 698-­‐702. 66
Felix & Sangi, supra note 5, at 257, 260; Rolfs & Binz, supra note 5, at 714, 717; Even Looschelders, supra note 5, at 421, 426 (2011) admits this fact; also see Lüttringhaus, supra note 5, at 296, 298. 67
Cf. Opinion of Advocate General Kokott in Consommateurs Test-­‐Achats et. al., supra note 6, at paras. 62-­‐63; TEMMING, supra note 31, at 72, 73-­‐74, with references concerning pertinent research in notes 16 and 17. 68
69
Id. at para. 66. Because of these findings, I consider the concept of overinclusiveness to be more convincing than does Purnhagen, supra note 5, at 690, 701. 2012] The ECJ’s Approval of Unisex Premiums a nd B enefits 121 70
a strict scrutiny test. Thus, if one applies this type of test as regards this prohibition, it is submitted that the use of sex as a proxy for life expectancy will not meet the test of necessity within the principle of proportionality. This is because mere correlation does not suffice when strictly scrutinizing this prohibition of discrimination. Causality is all that matters. Thus, other criteria (i.e. behavioral and environmental factors), which are resistant to manipulation and are, thus, not too dynamic, have to be chosen instead and must be in accordance with higher-­‐ranking EU law. Another possible way of calculating and managing risk could be through sekundäre Prämiendifferenzierung (secondary 71
differentiation of premiums). All in all, the ECJ’s ruling and even more so the opinion of 72
Kokott, AG, point toward a greater consideration of individual risks in the area of gender discrimination and is, thus, less group-­‐oriented; this is in accordance with the individualistic notion of human rights as a basic principle. The contrary applies to the area of age discrimination: There, the ECJ has not yet found a consistent approach to tackle the 73
pressing demographic problems of our labor market in an ageing society. Even “wiggly lines” have been certified for the corresponding case law delivered by the ECJ in 74
Luxembourg. The ECJ’s basic approach seems to be that, within the generally accepted span of working life (15 years until general retirement age), this prohibition of discrimination triggers an intermediate or even strict level of scrutiny, including the application of the principle of coherence, whereas from general retirement age onwards this prohibition of discrimination is hardly capable of even combating the most severe 75
form of age discrimination (i.e. mandatory age retirement). 70
The main reason that a strict level of scrutiny is justifiable is the fact that sex is a personal trait which cannot be easily altered, cf. TEMMING, supra note 23, at 473 et seq. From an insurer’s perspective, it follows from that fact the insured person is less capable of influencing the risk to the disadvantage of the insurer. Interestingly, the reason for the attractiveness to use sex as a risk factor in insurance contracts is the same reason that it is so thoroughly questioned from a normative point of view. 71
Rolfs & Binz, supra note 5, at 714, 716-­‐717. 72
Cf. Opinion of Advocate General Kokott in Consommateurs Test-­‐Achats et. al., supra note 6, at paras. 46, 62, 66-­‐
67. 73
Ulrich Preis & Felipe Temming, Der EuGH, das BVerfG und der Gesetzgeber -­‐ Lehren aus Mangold II (The European Court of Justice, the Federal Constitutional Court and the legislature -­‐ lessons from Mangold II), NZA 185 (2010). 74
Ulrich Preis, Schlangenlinien in der Rechtsprechung des EuGH zur Altersdiskriminierung (‘Wiggly’ lines in the ECJ’s case law on age discrimination), NZA 1323 (2010). 75
Cf. Gisela Rosenbladt, supra note 37, on the one hand, and Case C-­‐447/09, Reinhard Prigge u.a., NZA 1039-­‐1044 (2011), and Case C-­‐555/07, Seda Kücükdeveci, 2010 E.C.R. I-­‐365 on the other. 122 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
E. Consequences of the Judgment How the insurance sector will react to this groundbreaking judgment remains to be seen. If the contractual clauses remain unaltered and, therefore, do not differentiate as to the risk factors that really stand behind the proxy sex, premiums will meet at an average or – even 76
more likely – at the higher level in each case. It is arguable the whole collective of insured 77
persons will bear the additional costs. An increase in premiums could be observed with regard to the so-­‐called Riester pension (a capital funded old-­‐age-­‐pension), which is partly 78
subsidized by the state. Thus, certain insurance contracts would become more expensive for women (vehicle insurances or life assurance); others will become more expensive for the male counterpart (health insurance, pensions insurance). As all insurance companies across business segments are bound to offer unisex premiums and benefits, the danger of 79
adverse risk selection is low and the question, therefore, is moot. Nevertheless, as far as Germany is concerned, Section 20(2) phrase 1 of the Allgemeines Gleichbehandlungsgesetz (General Equal Treatment Law) and Section 12(1) No. 1 of the Versicherungsaufsichtsgesetz (Insurance Oversight Law) infringe EU law with respect to the equal treatment between men and women, as well as the prohibition of discrimination on 80
the grounds of sex, in conjunction with Article 51(1) of the Charter. They will have to be set aside, effective 21 December 2012. The ECJ’s ruling will also have a precedential effect in the area of occupational pension schemes: If Article 5(2) of Directive 2004/113 is invalid the same must consequently apply for Article 9 lit. (h) of Directive 2006/54, which allows 81
the use of sex as an actuarial factor in this area. In this context, the Lindorfer case, which 82
dealt with the same problem in the area of pensions for the public service of the EU, also deserves mention. Furthermore, the obiter dicta in the ECJ’s case law concerning occupational pension schemes within the framework of Article 157(1) TFEU also point 83
towards the necessity to apply gender-­‐neutral actuarial factors. 76
Reich, supra note 5, at 283, 290; Thiery, supra note 4, at 28, 30; Rolfs & Binz, supra note 5, at 714, 717; Purnhagen, supra note 5, at 690, 702. 77
Purnhagen, supra note 5, at 690, 702. 78
Hofer, supra note 5, at 1334; Rolfs & Binz, supra note 5, at 714, 715. 79
Rolfs & Binz, supra note 5, at 714, 717; contra Looschelders, supra note 5, at 421, 427. 80
See also Case C-­‐540/03, Parliament v. Council, 2006 E.C.R. I-­‐5769 (“Family reunification”). 81
Kerschbaumer, supra note 4, at 363, 364-­‐365; Höfer, supra note 5, at 1334, 1335; Birk, supra, note 5, at 819. 82
Case C-­‐227/04 P, Maria-­‐Luise Lindorfer v. Council, 2007 E.C.R. I-­‐6767 with a case note by Katharina Miller, Geschlechtsdiskriminierung bei versicherungsmathematischen Berechnungen (Gender discrimination in actuarial calculations), Streit 73 (2008). 83
See supra note 31. 2012] The ECJ’s Approval of Unisex Premiums a nd B enefits 123 In contrast, it is doubtful that this uncompromising stance of the ECJ will be the same if it 84
has to deal with cases where individuals are discriminated against on the grounds of age. The case law indicates that the ECJ has already established a hierarchy with regard to the 85
prohibited grounds listed in Article 21 of Charter. In this context, the prohibition of discrimination on the grounds of age does not enjoy by far the same legal impact as is the case with sex, disability, sexual orientation, race, or ethnic origin. The same applies to nationality (Article 18 TFEU). 84
85
Picked up by Thiery, supra note 4, at 28, 30; Lüttringhaus, supra note 5, at 296, 297. Compare Case C-­‐356/09, Christine Kleist, NZA 1401-­‐1404 (2010) and Gisela Rosenbladt, supra note 37; see also Felipe Temming, The Palacios Case: Turning Point in Age Discrimination Law?, European Law Reporter (ELR) 382, 388-­‐390 (2007). Developments Copyright Licensing Revisited By Astrid Janssen* A. Introduction On 29 September 2008, the United Kingdom High Court of Justice referred to the European Court of Justice of the European Union (ECJ) for a preliminary ruling in Karen Murphy v. 1
Media Protection Services Limited. This referral concerned the use of foreign decoder cards in the United Kingdom in order to gain access to encrypted satellite transmissions of live English Premier League football matches. Karen Murphy, a pub owner in Southsea, had allegedly been using the much cheaper Greek satellite decoder card to receive and screen 2
live Premier League matches in public. The legal issues that came up in this case relate to the interpretation of the boundaries between the ability of right holders to prevent cross-­‐border access to their broadcasts and the viewers’ interest in using decoder cards which enable them to receive broadcasts outside the territory covered by the right holder’s license. In this respect, the two main questions addressed by the ECJ are whether a clause contained in an exclusive license agreement with a broadcaster which required the broadcaster to prevent its satellite decoding cards from being used outside the licensed territory, impeded the free movement provisions or effective competition. Next to this, the ECJ also considered whether the reception and subsequent screening of those broadcasts is subject to restriction under European copyright law. The ECJ answered the first two questions in the affirmative and thereby has broken new ground with regard to the current business practices in the broadcasting sector, implying that premium content right holders could move beyond a purely national approach *
M.A. Institut Européen des Hautes Etudes Internationales, Nice, France ; LL.M. University of Amsterdam. Lawyer at De Brauw Blackstone Westbroek, Amsterdam. Email: [email protected]. 1
Case C-­‐429/08, Karen Murphy v. Media Protection Services Ltd., Judgment of 4 October 2011, not yet reported [hereinafter “Karen Murphy”]. 2
A similar reference was made in the case C-­‐403/08, FA Premier League v. QC Leisure, Judgment of 4 October 2011, not yet reported, which was initiated by FAPL, along with Nova, and concerned three actions directed against the British parallel traders in satellite decoder cards and against the pub owners. Case C-­‐429/08 and C-­‐
403/08 have been joined for the purposes of the written proceedings, oral proceedings and the judgment because they have the same subject matter. 2012] Copyright Licensing Revisited 125
towards licensing on an EU-­‐wide scale. As such, the ECJ also legalizes the “grey market,” a position which has been advocated by the European Commission (Commission) for a long time. Interestingly, the ECJ also gives a broad interpretation to the concept of communication to the public, offering at least some comfort to the right holders concerned. The judgment seems to be in line with the European copyright framework and puts into perspective the well-­‐known Coditel I decision, which is the only precedent with 3
regard to the legal issues raised. In this case note I demonstrate that the ECJ's approach rightly fills in an existing lacuna in European law. B. Relevant Facts Sports broadcast rights are generally packaged for sale on a territory-­‐by-­‐territory basis. In the above case BSkyB is the only broadcaster officially licensed by the Football Association Premier League (FAPL) to broadcast live Premier League football matches in the UK. On behalf of the FAPL, each Premier League football match is filmed and modified to create what is known as “the World Feed,” in which the FAPL owns various copyrights. The exclusive right to broadcast the World Feed live is granted to foreign broadcasters for three years on the basis of an open competitive tender procedure pursuant to separate licensing deals with FAPL. The terms of foreign broadcasters’ licenses include the obligation for the foreign broadcasters not to supply decoder cards enabling access to live sports matches with a view to their use outside their licensed territory. Due to the nature of broadcasts (satellite or otherwise) it is almost inevitable that such broadcasts will be accessible in other territories with the use of broadcasters’ decoder cards. These decoder cards enable paying customers, such as Karen Murphy, to receive 4
encrypted signals via satellite. As such, a “grey” market has developed, where lawful subscriptions are obtained by means of letterbox addresses. The Commission has acknowledged that this is neither a “black market,” given that the subscriptions are paid for, nor a “white market,” since certain broadcasting rights obtained by broadcasters are 5
only valid within the territory of the country in question. 3
Case C-­‐62/79, Coditel SA v. Cine Vog Films, 1980 E.C.R. I-­‐881 [hereinafter “Coditel I”]. 4
The Greek decoder cards are available in the UK through sales points. It seems that once acquired, these cards are activated through a system whereby the purchasers of the cards are identified as being resident in Greece. A subscription account in Greece is needed for the activation of the cards. 5
Second Report from the Commission on the implementation of Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access, 30 September 2011, COM (2008) 593 final, 4-­‐9. The Commission explicitly mentions that sanctions used in order to combat this “grey market” are unlawful, since the sanctions established under the Directive can only 126 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
The FAPL claims that territorial restrictions placed on the licensees are necessary to support a sales model that recognizes varying consumer demand. Without such territorial restrictions the return to right holders would be jeopardized as a result of the reduction in value of cross-­‐border availability of content licensed in another local market. The FAPL therefore asserts that pursuant to the Coditel I decision it was allowed to exercise its exclusive rights in order to prevent the use of cheaper decoder cards from other Member States. Advocate General Kokott (AG) expressed in her Opinion of 3 February 2011 that FAPL could not, however, prevent the use of Greek decoding cards for accessing its broadcast because, 6
by receiving royalty payments for those decoding cards, FAPL’s rights had been exhausted. With this reasoning, the AG surprisingly – in view of the Coditel decision – extended the 7
principle of exhaustion of rights of goods to services. It is also interesting to note that the FAPL could not object to the screening of Premier League matches in a pub, according to the AG. The AG found that the transmission of copyright works by satellite, free of charge, to a public present at the place where the communication originates (on the screen) did 8
not constitute a communication to the public. C. The ECJ's Reasoning The ECJ firstly considered the questions in relation to the reception of encrypted broadcasts from other Member States, and secondly addressed the questions that came up with regard to the use of the broadcasts once they are received. I. Free Movement of Services The ECJ recognized that the principle of free movement of services not only applies to providers of services, but also to recipients. Those recipients of encrypted services are de concern actions related to the use of illicit devices. They cannot therefore, apply to other actions, such as the use of lawful devices without respect for territorial restrictions. 6
Opinion of Advocate General Kokott in joined cases C-­‐403/08 and C-­‐429/08, FA Premier League v. QC leisure, Opinion of 3 February 2011, not yet reported, at para. 192. 7
In Coditel I the ECJ held that the doctrine of exhaustion does not apply to the right to perform or show a copyright work in public where the specific subject matter of the right allows the owner to control each and every use, since it is through charging for each use that the essential function of the right is achieved (see Coditel I, paras. 12-­‐13). 8
Opinion of Advocate General Kokott in joined cases C-­‐403/08 and C-­‐429/08, FA Premier League v. QC leisure, at paras. 144-­‐147. 2012] Copyright Licensing Revisited 127
facto completely deprived of the right to receive broadcasting services originating in other Member States, according to the ECJ. This restriction on the freedom to provide services can only be justified by overriding reasons relating to the public interest that consist of the protection of intellectual property rights. The question therefore, is whether the Premier League matches benefit from copyright protection. In the ECJ’s opinion, whereas the opening sequence, the Premier League anthem, pre-­‐recorded films and graphics enjoy copyright protection, the Premier League matches themselves do not constitute works 9
within the meaning of the Copyright Directive. Nevertheless, the ECJ pointed out that 10
national legislation that confers protection on sporting events, by virtue of protection of intellectual property, could also justify the restriction provided that it is suitable and 11 necessary. The ECJ acknowledged that the specific subject matter of an intellectual property right is to ensure the commercial exploitation of the protected work by the grant of licenses in return for payment of remuneration. In the ECJ’s opinion, FAPL should receive remuneration that is reasonable in relation to the actual and potential audience (both in the Member State of broadcast and in any other Member State where the broadcast is received) and the language version. Importantly, the ECJ noted that due to the use of decoding devices, FAPL could precisely determine the actual and potential audience on which the license income 12
will be based. The ECJ subsequently dismissed the justification put forward by FAPL that its license income would be jeopardized because of the reduction in value of its rights due to the loss of territorial exclusivity. Without using the exhaustion doctrine, as the AG did, the ECJ reasoned that although a premium may be paid for the territorial exclusivity of the licenses, this should never result in artificial price differences between the partitioned markets that are irreconcilable with the completion of the internal market. In this connection, the premium that is paid to FAPL in order to guarantee absolute territorial 13
exclusivity goes beyond what is necessary in order to ensure appropriate remuneration. The ECJ also emphasized that Coditel I cannot be relied upon by FAPL and others in support of their arguments because the circumstances differed substantially. In Coditel I, the Belgium cable television broadcasting company Coditel communicated a work to the public 9
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001, on the harmonization of certain aspects of copyright and related rights in the information society, 2001 O.J. (L 167) 10. 10
Some countries do recognize a recorded sports event as a work under national copyright law. 11
See Karen Murphy, supra note 1, at paras. 85-­‐105. 12
Id. at paras. 106-­‐113. 13
Id. at paras. 114-­‐116. 128 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
without having an authorization in Germany, where the communication originated, from the right holder Cine Vog and without having paid any remuneration to Cine Vog. By contrast, the Greek broadcaster was authorized by the FAPL to communicate the broadcast 14
to the public and had also paid remuneration. The ECJ thus held that the clause contained in an exclusive license agreement that prevents broadcasters from supplying decoder cards to non-­‐residents is contrary to Article 15
56 of the Treaty on the Functioning of the European Union (TFEU). II. Competition The ECJ recalled that the actual grant of an exclusive license to broadcast sport matches, and consequently to prohibit their transmission by others, would not be anticompetitive per se. However, where the exercise of those rights results in partitioning national markets or makes the interpenetration of markets more difficult, the agreement will be caught by Article 101 of the TFEU, unless there are other circumstances within the economic and 16
legal context that justify this finding. The ECJ held that the clause prohibiting broadcasters from effecting any cross-­‐border provision of services, which effectively grants each broadcaster absolute territorial exclusivity, and also eliminates competition between 17
Member States. Since no justifying circumstance within the economic and legal context had been put forward by FAPL, and because the requirements in Article 101(3) of the TFEU had also not been met, the ECJ ruled that the contractual clause constitutes a restriction on competition 18
prohibited by Article 101 of the TFEU. III. Reproduction and Communication to the Public In its second part of the lengthy judgment, the ECJ considered whether the reception of the broadcasts containing Premier League matches and the associated works (the opening sequence, the Premier League anthem, pre-­‐recorded films and graphics) qualifies as an act of reproduction that can be prohibited by the right holder. The ECJ confirmed that acts of 14
Id. at paras. 119-­‐120. 15
Id. at para. 117. 16
See also Case C-­‐262/81, Coditel SA v. Cine Vog Films SA, 1982 E.C.R. I-­‐3381, at para. 15. 17
See Karen Murphy, supra note 1, at paras. 135-­‐142. 18
Id. at paras. 143-­‐146. 2012] Copyright Licensing Revisited 129
reproduction are performed in the memory of a satellite decoder card and on a television screen. However, in the ECJ’s opinion, those acts do not need the authorization of the copyright holder concerned since they are temporary and do not have an independent 19
economic significance. The ECJ subsequently addressed the question whether the showing of Premier League matches and associated works by pub owners in public requires FAPL’s authorization. Contrary to the Opinion of the AG, the ECJ found that the public was not present at the place where the communication originated, the football stadium, and also considered relevant that the communication to the public was of a profit-­‐making nature. Interestingly, the ECJ noted that the customers present at the pub constituted an additional public, which was not considered by the authors when they authorized the broadcasting of their works. The ECJ therefore held that the transmission of broadcasts to customers present in a pub constitutes a communication to the public which the right holder can object to, thus 20
giving a broad interpretation to the concept of communication to the public. D. Comments Like the AG’s Opinion, this judgment has received a great deal of media attention, since it threatens the well-­‐established practice of licensing broadcasts protected by copyright on an absolute territorial basis. Critics have argued that this approach taken by the AG and subsequently the ECJ, although with a slightly different reasoning, is not in line with the Coditel I decision and exhaustion rule. I. Exhaustion Doctrine Not Applicable Remarkably, the ECJ did not draw a parallel with the exhaustion doctrine in relation to the freedom of goods as the AG did in order to support her conclusion that the restriction to the free movement of services is not justified. The exhaustion doctrine essentially ensures that the right holder cannot invoke its exclusive right of distribution in order to prevent the free movement of goods within the internal market after having exercised it. An extension of this doctrine to copyright protected services would indeed be contrary to the Copyright 21
Directive and its equivalent in international copyright law. It follows from this Directive that only the distribution right is subject to exhaustion, and not the other exploitation 19
Id. at paras. 153-­‐182. 20
Id. at paras. 183-­‐207. 21
See Directive 2001/29/EC art. 3-­‐4, 2001 O.J. (L167) 10; WIPO Copyright Treaty art. 6-­‐7, Dec. 20, 1996. 130 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
22
rights, such as the right of communication or making available to the public. This distribution right only applies to distribution through sale or otherwise of the original work 23
or copies, which includes acts that entail a transfer of ownership of a tangible object. In the case of provision of a service there is normally no object in which ownership is transferred, and the question of exhaustion therefore does not arise. The Copyright Directive thus clearly distinguishes between the distribution of copyright works which have been subject to fixation of physical media, and copyright works which are made available by means of a communication to the public, whether in the form of a broadcast, downloading or streaming. Third parties, such as pub owners, therefore do need the authorization of the right holder concerned in order to communicate the copyright-­‐protected work to the public even if the right holder already has communicated or made available this work within the EU. Otherwise, the right holder would not receive a fair or proportionate reward for his rights because the work would be communicated to a “new” audience, for which the right holder 24
has not been properly rewarded. The Court used this concept of the specific subject matter of the copyright for balancing the interest of the copyright holders against those of free movement provisions. In this respect, it is settled case law that the existence of an intellectual property right is not affected by the free movement provisions, although the exercise of such rights, associated with its specific subject matter, could constitute a 25 disguised restriction. Such a restriction on the free movement of services may be justified for the purpose of protecting this specific subject matter as long as they do not go beyond what is necessary. II. Coditel Decision In this connection, the ECJ reasoned in Coditel I that the geographical limits were necessary for the right holder Cine Vog in order to receive a fair or proportionate reward for its exclusive rights, which would have been dependent on the number of actual or potential showings of the film in a cinema and the authorization of the television showing with a 22
Rental and lending rights cannot be exhausted either. See Council Directive 92/100/ECC art. 1, Nov. 19, 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, 1992 O.J. (L346) 61; Case C-­‐158/86, Warner Brothers v. Christiansen, 1988 E.C.R. I-­‐2605; Case C-­‐61/97, Egmont Film, 1998 E.C.R. I-­‐5171; Case C-­‐200/96, Metronome v. Music Point, 1998 E.C.R. I-­‐1953. 23
Case C-­‐456/06, Peek & Cloppenburg KG v. Cassina SpA, 2008 E.C.R. I-­‐02731, at para. 36. 24
See Cases C-­‐431/09 and C-­‐432/09, Airfield NV v. Sabam, Judgment of 13 October 2011, not yet reported, at paras. 75-­‐77. 25
Case 87/70, Deutsche Grammaphon, 1971 E.C.R. I-­‐487, at para. 6. See also Case C-­‐51/75, EME Records, 1976 E.C.R. I-­‐811, at para. 27; Case 258/78, Nungesser, 1982 E.C.R I-­‐2015, at para. 28; Case 102/77, Hoffmann-­‐la Roche, 1978 E.C.R. I-­‐1139, at para. 6; Case 58/80, Dansk supermarket, 1981 E.C.R. I-­‐181, at para. 11. 2012] Copyright Licensing Revisited 131
26
certain delay. This retransmission of the film on Belgian television would nowadays also be regarded as an unauthorized communication to the public for which the right holder 27
should have been rewarded. By contrast, in the case at hand the partitioning of the internal market is not intended to protect any other form of exploitation of the sporting 28
events as the AG rightly noted. More importantly, the actual and potential audience can be easily taken into account due to the use of decoding cards so that the right holder is already appropriately rewarded when it licenses its rights. Moreover, the difference here is not that a broadcaster picks up the signal and transmits it to a “new” public in a country outside the licensed territory, but a viewer that has made the requisite payment in order to receive the encrypted broadcast service. Whereas in Coditel I the restriction was necessary in order to exercise the exclusive right associated with its specific subject matter, the ECJ now rightly argued that the exercise of the exclusive rights creates artificial barriers to trade between Member States that cannot be justified. III. Legalization of the Grey Market Since Coditel I – where television was organized in the Member States on the basis of legal broadcasting monopolies – the broadcasting market has changed considerably: Territorial barriers no longer coincide with technical barriers, since the satellite footprint encompasses several Member States. This was acknowledged with the incorporation of the country-­‐of-­‐origin principle in the Satellite and Cable Directive, which established the concept that a given national copyright contained in an exclusive license is to be extended to the Community’s territory in its entirety. As such, broadcaster B does not need a different license to broadcast in country A, since B has already obtained one in the country where the signal was transmitted into the air. Although parties remain free to contractually agree on the use of decoding devices in order to avoid reception by the general public, right holders cannot prevent the reception of those program-­‐carrying signals in countries for which the broadcast is not intended. After all, the reception and subsequent decryption of a broadcast service is not covered by the right of communication or making available to the public, nor does it qualify as an act of reproduction, and cannot therefore be prevented by the right holder. The Commission has also highlighted for many years the problem of the grey market that existed due to the practice of licensing broadcasting rights on an absolute territorial basis. 26
See Coditel I, at para. 13. 27
The exclusive right of cable retransmission has now been codified in Council Directive art. 8, 27 Sept. 1993, 93/83/EEC on the coordination of certain rules concerning copyright applicable to satellite broadcasting and cable retransmission 1993 O.J. (L248) 15. 28
Opinion of Advocate General Kokott in joined cases C-­‐403/08 and C-­‐429/08, FA Premier League v. QC leisure, at para. 197. 132 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
On numerous occasions it has called upon right holders to provide non-­‐resident subscribers access to broadcast services with subtitles or commentaries in their own language, while underlining the importance of cross-­‐border provision of broadcasting 29
services through satellites in cultural and social terms. According to the Commission, this would require a flexible approach to the sale of broadcasting rights and, consequently, 30
legalization of the grey market. The broadcasters did not respond to this request, 31
because they also generate income from the grey market. Hence, it seems that the grey market does not threaten the exclusivity of the content acquired by broadcasters, since this market mainly exists due to cultural and linguistic diversity across Europe. E. Implications Whereas the Commission has been hinting at the development of different alternative contractual solutions and licensing mechanisms for almost a decade, the ECJ has now followed this approach and finally confirmed the message contained in the Satellite and 32
Cable Directive. It thus seems that we are moving beyond a purely national approach 33
towards licensing on an EU-­‐wide scale. As such, this judgment may change the current licensing practice in relation to premium content transmitted by satellite pay TV services. Besides premium content transmitted by satellite, the judgment may also impact business models used in order to disseminate on-­‐line services, on which geographical restrictions are placed in order to prevent access by foreign users. 29
See the Communication from the Commission on the application of the general principles of free movement and goods and services, articles 28 and 49 EC, concerning the use of satellite dishes, COM (2001) 351 final, available at: http://eur-­‐lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2001:0351:FIN:EN:PDF (last accessed: 23 December 2011). 30
See the Second Report from the Commission on the implementation of Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access, COM (2008) 593 final, available at: http://eur-­‐
lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=COMfinal&an_doc=
2008&nu_doc=593 (last accessed: 23 December 2011). 31
In this context, the broadcaster BSkyB has decided not to join FAPL’s action before the British courts, although it the main victim of the contested practice. Most likely, the losses caused by the defendants are incomparable to BSkyB’s gains from the hundreds of thousands of “grey” individual subscriptions acquired throughout Europe. 32
The Commission had already admitted in its report on the implementation of the Cable and Satellite Directive that the application by Member States was not in line with the country-­‐of-­‐origin principle. Report from the European Commission on the application of Council Directive 93/83/EEC on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, COM (2002) 430 final. 33
In this context, Michel Barnier, EU commissioner for the internal market, has expressed that the judgment will not oblige right holders to grant single pan-­‐EU licenses. Association of Commercial Television in Europe (ACT), “Creation, Consumers and Competitiveness” annual conference in Brussels, 9 November 2011. 2012] Copyright Licensing Revisited 133
While the judgment did not expressly prohibit FAPL from continuing to sell its rights on an exclusive territorial basis and charging different prices accordingly, guaranteeing absolute territorial exclusivity has become more difficult, which could lead to a reduction in the value of FAPL’s rights. If the FAPL were to choose to sell its rights on a pan-­‐European basis, this would most likely lead to more expensive licenses and fewer broadcasters being able to acquire those rights. Therefore, it seems more plausible that FAPL will continue to sell its right on a country-­‐by-­‐country basis, while charging different prices based on the numbers of decoding cards used, as the ECJ proposed. FAPL could also follow the AG’s suggestion and include different language versions of the commentary in order to legitimately price discriminate along national borders. Whichever way you look at it, it is to be expected that subscription prices will go up for Greek customers. The objective of the Commission that non-­‐residents should be able to receive premium content in their own native language has thus been achieved, even though the price to be paid for it may be very high. And has Karen Murphy reached her goal? Unfortunately, the English pub owner may still need the authorization of the FAPL in order to screen the live sporting matches so as not to infringe FAPL’s copyrights in the matches. For the moment, until the existing Premier League contracts end, it is only the viewers that can benefit by legitimately using foreign decoder cards in order to watch football matches more cheaply. Developments Review Essay – Capitalistic Constitutional Transformations? Danny Nicol’s The Constitutional Protection of Capitalism (2010) By Agustín José Menéndez* [DANNY NICOL, THE CONSTITUTIONAL PROTECTION OF CAPITALISM (Hart Publishing, 2010); ISBN 978-­‐
1841138596; pp. 200; £35] A. Introduction The Constitutional Protection of Capitalism examines the key role that British constitutional law has played as the privileged mediator between politics and the socio-­‐economic structure of the United Kingdom. Nicol’s main thesis is that the present fundamental law of Great Britain entrenches a neoliberal socio-­‐economic order [1], shorthand for a society where the interests of capital holders are paramount [43]. This “upgrading” of neoliberal ideology into the constitution [152] was allegedly effected through the opening of British law to supranational and international legal regimes (European Union law, the European Convention of Human Rights and international trade law). The bias of the latter in favor of 1
neoliberal policies and values resulted in the demise of the postwar “radical” constitution. By opening the doors of the British citadel to these three constitutional Trojan horses, British politicians provoked the enmeshment of the fundamental law of the United Kingdom into a transnational legal web, leaving Britons “bereft of choice over fundamental aspects of (their) economic governance.” [159] Not only the markedly procedural character of the “radical” British constitution has been superseded by the entrenchment of specific constitutional provisions which are no longer easily amended (at the very centre of which one finds the rights of capital owners and multinational corporations) [127], but the very evolutive character of British fundamental law has been betrayed by the elevation of written treaties to the level of constitutional law. Given this state of affairs, there is a need for a democratic reform of the constitution. Nicol claims that in the short run the priority is a rearguard defense of national competences against any further encroachments; but in *
[Lecturer at the Universidad de León (Spain) and RECON fellow, ARENA, Universitetet I Oslo. This review was written as part of the research activities of work package 2 of RECON. All references to pages in the book are made in parentheses, i.e. [45] refers to p. 45. Email: [email protected]. 1
Hereafter, I refer to the (“fully democratic”) postwar constitution as the radical constitution, to the present th
th
constitution as either the present constitution or the neoliberal constitution, and to the 18 and 19 century constitutions as the “common law” constitutions. 2012] Nicols’ o f C
apitalism The Constitutional Protection 135 the long run, something else is needed: a positive transformation of the transnational web, rendering possible the release of national constitutions from the chains of global neoliberalism. This review is structured in four parts. Firstly, I will reconstruct the four main claims which make up Nicol’s argument. Secondly, I will explore the main methodological and substantive contributions of the book. Thirdly, I will engage in a critical spirit with the main theses of the book. The last and fourth section holds the conclusions. B. The Argument of the Book It seems to me that it is proper to distinguish (both for descriptive and evaluative purposes) four different claims in Nicol’s argument. The first claim is that the British Constitution had evolved by 1945 into a radical and democratic fundamental law. The second is that supranational and international law, and in particular, EU, ECHR and WTO laws have played a key role in the neoliberal transformation of the fundamental laws of the United Kingdom. The third is that the present British Constitution has become radically undemocratic, because it elevates a given set of fundamental values over democratic procedure. The fourth is that a deep reform of the supranational legal framework is needed, so as to recreate the political space in which national political processes can be re-­‐
democratized. In the remaining of this section, I will consider each of these claims in some more detail, while in section “D,” I will offer a critical assessment of three of them. I. The Democratic Evolutionary Achievement of the British Constitution The first premise in logical terms is that the British Constitution had become a radical 2
3
democratic constitution by 1945, (or perhaps even some three decades earlier). This was the result of the slow but steady evolution of the common law British Constitution into a radical fundamental law which committed the state to “whatever political orientation 4
[was] popularly decided.” This democratic breakthrough was all the more remarkable 2
The author does not date the beginning of the radical constitution era (indeed, part of the charm of evolutionary constitutions is that they escape easy temporal location). But on the basis of the constant reference in his counterexamples from chapters 2 to 5 to Labor political manifestos from 1945 to the 1980s, 1945 is not a bad guess. 3
The 1911 “Parliament Act” fully confirmed the legislative supremacy of the House of Commons over the House of Lords. From 1906 to 1914 the so-­‐called “welfare reforms” launched by Asquith’s Liberal governments laid the foundations of the British welfare state. From a constitutional perspective, see ELIZABETH WICKS, THE EVOLUTION OF A CONSTITUTION: EIGHT KEY MOMENTS IN BRITISH CONSTITUTIONAL HISTORY 83-­‐110 (2006). 4
DANNY NICOL, THE CONSTITUTIONAL PROTECTION OF CAPITALISM 29, 107 (2010). 136 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
given that the common law constitution was highly inhospitable to democratic th
th
government. Indeed, the British Constitution of the 19 and early 20 centuries was a mixed and class-­‐based constitution, in which the fundamental laws of the realm played a key role in the protection of the vested interests of the ruling few and the taming of the radical democratic aspirations of the restless many. The central legislative role of the House of Lords, the commitment to the gold standard, the upholding of a virtually sacrosanct right to private property [131] and the support of a civilizing international law through which imperialistic expansion was rendered possible were key constitutional planks of the common law British constitution. By 1945 fundamental changes had transformed British constitutional law and three principles had become well-­‐established at the very core of the new democratic order: (A) the contestability of all legal norms, including constitutional norms, which meant that there were no special amending procedures to be followed when changing the contents of 5
any legal norm [24]; (B) the ideological neutrality of constitutional norms, which implied that the constitution only entrenched the pre-­‐commitment to keeping open the political process. Consequently, no institution or substantive value was sheltered from questioning and eventual change or amendment; in particular, law would not place above politics any 6
socio-­‐economic principles or institutions. Finally (C), the accountability of power-­‐holders to citizens, which required that the institutional setup and decision-­‐making processes were so designed as to make effective the power of citizens to check what their representatives, and very especially their government, were doing and eventually “kick the rascals out”, to borrow a much used phrase inspired by Schumpeter’s reconstruction of the British 7
parliamentarian monarchy. This excluded the conferral of power onto private actors or 8
structures to monitor and hold accountable political institutions [36]. This finest British constitutional hour extended to the first three decades of the postwar period, a period during which Britons “never had it so good” not only in material terms, but 5
Whereas it may be an exaggeration to claim that Parliament could change at their whim the constitution, that would be clearly closer to British constitutional practice than the (continental) strict proceduralization of constitutional amendment (which results in more or less rigid constitutions) and the explicit or implicit assumption of the immutable character of certain contents of the fundamental law. But more on this in section C.I. 6
DANNY NICOL, THE CONSTITUTIONAL PROTECTION OF CAPITALISM 23 (2010). 7
JOSEPH A. SCHUMPETER, CAPITALISM, SOCIALISM AND DEMOCRACY 269-­‐83 (1976). 8
That was indeed a powerful motive leading to the nationalization of the Bank of England (on the evolution of the Labor party’s views on the matter, see JIM TOMLINSON, DEMOCRATIC SOCIALISM AND ECONOMIC POLICY, THE ATTLEE YEARS 1945-­‐51 ch. 7 (1997). It is however doubtful whether the objective was achieved at all. A prescient contemporary analysis can be found in Karl R. Bopp, Nationalization of the Bank of England and the Bank of France, 8 J’RNL OF POL. 308-­‐318 (1946). 2012] Nicols’ o f C
apitalism The Constitutional Protection 137 9
perhaps, if Nicol is right, even constitutionally speaking. We could say that they were Les Trente Glorieuses of the British constitution. II. The Constitutionalization of Supranational and International Law and the Transnational Web as Constitution The golden decades of the radical British Constitution were also the very same years in which the British legal system was opened to international legal regimes by means of the signature and progressive entry into force of the GATT, ECHR and (with British accession in 1973) EEC Treaties. While the “global law” of the United Nations soon became entrapped 10
in the Cold War web, and the International Trade Organization (hereafter ITO) died in the 11
cold water of a Republican and rabidly anti-­‐communist US Congress, the General Agreement on Trade and Tariffs (hereafter GATT) signed in 1947, became a modest but functional legal regime. Originally intended as a de minimis and pro tempore set of trade norms, after the demise of the ITO GATT became the central piece of Western trade law. Britain was a founding and leading member of GATT (as well as the failed ITO). In 1950, Western democratic European countries signed the European Convention of Human Rights (hereafter ECHR). This document gave more specific content to the vague provisions of the Universal Declaration of Human Rights. Britain was a founding and leading member of the ECHR, which was rapidly ratified and came into force in late 1953. The United Kingdom was not a founding member of the European Communities. The Attlee government decided to abandon at a rather early stage the negotiations that lead to the establishment of the first European regional organization, namely the European Coal and Steel Community (hereafter ECSC) in 1951. Great Britain originally favored an alternative European integration project, the European Free Trade Area (hereafter EFTA), but it is revealing of the degree of its failure that Nicol does not even mention it (and it is hard to blame him for not doing so). Decolonization (with the brutal awakening following the Suez debacle, both 9
The phrase, as is well known, was MacMillan’s. On 20 July 1957, in a speech in Bradford, Harold MacMillan claimed that “most of our people have never had it so good.” However, public discourse tends not to associate that phrase with the 1970s, which tend to be recollected as a period of repeated crises, decline and uncertainty. However, recent literature has stressed that while political elites were up in arms in the early 1970s, public sentiment was better than ever before and probably even better than it has been since. Richard Vinen argues rather convincingly that optimism was grounded in the fact that wages were higher than ever before and high inflation had drastically reduced the burden of previous debts for most Britons. See RICHARD VINEN, THATCHER’S BRITAIN 76 (2009). A similarly nuanced assessment can be found in both ANDY BECKETT, WHEN THE LIGHTS WENT OUT (2009), & DOMINIC SANDBROOK, STATE OF EMERGENCY: THE WAY WE WERE: BRITAIN 1970-­‐1974 (2010). 10
11
See MARK MAZOWER, NO ENCHANTED PALACE (2010). As Nicol mentions, Keynes had contributed to shape the ITO Treaty malgré the fact that the American hegemony grew by the minute as the Bretton Woods negotiations unfolded. Nicol also suggests that the Keynesian mark on the ITO might have been decisive in its rejection by a US Congress, which was at the peak of its red baiting mood, at 52-­‐56. 138 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
militarily and financially painful for the United Kingdom) and the very success of the European Communities would result in the (belated) accession of the United Kingdom to the European Communities in 1973. Nicol makes a rather obvious but infrequently articulated point, namely that the internationalization of the British legal system did not have many direct implications for Britons for a rather long time. All three systems had a very limited impact on domestic policies. If they had specific legal effects on national legal systems, these effects were limited to the disciplining state legislation and action vis-­‐à-­‐vis non-­‐nationals (or non-­‐
national goods or factors of production), by requiring that the latter benefit from equal and non-­‐discriminatory trade policies. Supranational and international norms reconfigured the powers of nation-­‐states regarding the definition of their national economic borders, without erasing them or affecting the substantive content of their legal systems. In spatial terms, the effects of EEC, ECHR and GATT laws were felt at the border; and there they ended. The ECHR was conceived of as a Cold War tool, whose main purpose was to show 12
that Westerners had rights while those on the other side of the Iron Curtain did not. This was reflected in the literal tenor of the Convention, which repeatedly ensured that Member States enjoyed a wide margin of discretion when defining the breadth and scope of the rights acknowledged within its framework. In their own right, both the GATT and the EEC Treaties were underlined by a Keynesian understanding of how capitalism could be 13
made sustainable. Goods were to be made to circulate as freely as possible while the 14
movement of all other factors of production was to be regulated. Not only was violation of the Treaties conditional on the suspect national measure effectively discriminating against foreigners or foreign goods, services or capital, but the relationship between a state and its own nationals fell outside the scope of EEC and GATT laws (thus the tolerance of reverse discrimination was to be dealt with by national political processes, not supranational institutions). In the case of the EEC, the founding Treaties contained an explicit commitment to socio-­‐economic ecumenism, in the form of a provision (originally 12
Mikael Rask Madsen, From Cold War Instrument to Supreme European Court: The European Court of Human Rights at the Crossroads of International and National Law and Politics, 32 L. AND SOC. INQUIRY 137-­‐59 (2007). Although focusing on the Universal Declaration of Human Rights and en passant distinguishing the motives and rationales of the ECHR, it is worth reading Mark Mazower, The Strange Triumph of Human Rights, 1933-­‐1950, 47 THE HISTORIC JOURNAL 379-­‐98 (2004). Indeed, the Foreign Office would be struck by thunder when Greece pushed the Cyprus decolonization process through the door of the ECHR Commission. See BRIAN SIMPSON, HUMAN RIGHTS AND THE END OF EMPIRE (2000). 13
That explains the emphasis on getting rid of quantitative restrictions and measures having an equivalent effect, of “translating” all barriers to trade into visible tariffs in the GATT, as well as the place of honor given to free movement of goods in the EEC Treaty, enshrined in the first of the chapters devoted to substantive policies. 14
This is why GATT was limited to goods and did not extend to services or capital, and why in the EEC Treaty, free movement of goods was kept separate from all other economic freedoms, the latter relegated to a third chapter following the one devoted to agriculture. 2012] Nicols’ o f C
apitalism The Constitutional Protection 139 Article 222 of the TEC) providing for the specific protection of nationalized industries and, 15
in general, for the public ownership of public enterprises. Similarly, the means of enforcement were very modest, thereby weakening the legal impact of the three regimes. The EEC Treaty established what in retrospect has come to be regarded as the paradigmatic supranational court: the European Court of Justice (hereafter ECJ). But it is important to keep in mind that the ECJ was the heir of the ECSC Court, which resembled rather closely an arbitration panel (composed as it was by both jurists and lay members); that considerable time elapsed before the ECJ signaled its constitutional aspirations unequivocally (in the fundamental cases of Van Gend en Loos and Costa); and that it took even longer for the ECJ to make use of its authority and strike down national laws in response to their breach of one of the four economic freedoms (indeed, the trend 16
was only unequivocal from Dassonville onwards). Similarly, the enforcement of the ECHR was left in the hands of an intergovernmental Commission and a potentially full-­‐blown court, although it could only hear the cases referred to it by the Commission, the competence of which necessitated voluntary acceptance by signatory states of the right of individual petition. As a result, the Court was a fully dormant institution for a good number 17
of years. Finally, the GATT system came poorly equipped in terms of its institutional mechanisms of enforcement. Panels developed as part of a constitutional convention, which the Nixon administration tried to foster, but with rather limited results overall [58]. On such a basis, one may conclude that the transnational web may have indeed contributed to reinforcing, not undermining, the process of consolidation of the “radical” constitution (if only to the extent that the EEC, ECHR and GATT Treaties fostered a European context much more amicable to democratic welfare states than the League of Nations in the interwar period, or for that matter the secular balance of power system). The constitutional nature of these legal regimes was radically transformed from the early seventies onwards. All three systems developed an ambition to extend their legal authority to the design of national domestic policies, while at the same time dramatically upgrading their enforcement mechanisms. 15
Article 222 of the 1957 Treaty Establishing the European Community read “This Treaty shall in no way prejudice the rules in Member States governing the system of property ownership.” For commentary on its present embodiment, see Bram Akkermans & Eveline Ramaekers, The Treaties Shall in No Way Prejudice the Rules in Member States Governing the System of Property Ownership: Article 345 TFEU (Ex Article 295 EC), its Meanings and Interpretations, 16 EUROPEAN LAW J’RNL. 292-­‐314 (2010). 16
Joseph Weiler, The Constitution of the Common Market Place: Text and Context in the Evolution of the Free Movement of Goods, in THE EVOLUTION OF EU LAW, 349-­‐76 (Paul Craig & Grainne de Búrca eds., 1999). 17
The well-­‐known Danish legal theorist, Alf Ross, then a judge of the ECHR, seems to have written an article very critical with the dormant state in which the ECHR found itself, but was persuaded by his colleagues not to publish it. See Alf Ross, En arbejdsløs domstol (1964), unpublished manuscript, referred to by Ole Spiermann, A National Lawyer Takes Stock: Professor Ross’ Textbook and Other Forays Into International Law, 14 EUROPEAN J. OF INT’L LAW 675, 690 (2003). 140 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
Because it is the most ambitious and openly political of the structures, the mutation of the European Union is the most decisive one. Nicol claims that the most fundamental single decision pushing the EU into the neoliberal road has been the ruling of the ECJ in Cassis de 18
Dijon [97]. At first sight, that case was a rather unremarkable dispute over German regulations on liquor sales. However, the ruling given by the ECJ in the case led to a radical transformation not only of the breadth and scope of economic freedoms, but also of the 19
very nature of the European Union. While the ECJ had been ready to go beyond formal discrimination against foreign goods, and had found that national norms were in breach of Community regulations when they were de facto (even if not de jure) discriminatory, the ECJ had not even come close to conceiving of non-­‐discriminatory breaches of Community law. In normative terms, this implied that economic freedoms were to be regarded as concretizations of the right to be free from discrimination on the basis of nationality. In competence terms, that understanding implied that Community law limited itself to extend domestic regulatory standards to all Community nationals, while leaving untouched the very definition of such national regulatory standards. Cassis de Dijon changed all this. The ECJ affirmed that goods in compliance with other national regulatory standards (namely the French cassis) should be deemed to have complied with functionally equivalent regulatory demands (of France) and be allowed unhindered access to the German national market (no matter the domestic rules on the graduation of liquor aimed at the protection of consumers). Indeed, the Commission derived from this part of the Cassis ruling the wider paradigm of mutual recognition of laws, which it claimed rendered unnecessary positive European regulation prior to incorporating specific goods or sectors 20
into the common market. The Single European Act [98] (and the parallel abandonment of the more political path proposed by the European Parliament in the failed Treaty of European Union of 1984) confirmed this normative and power shift. In normative terms, economic freedoms were from now onwards not only part of the anti-­‐discrimination constitution, but self-­‐standing rights requiring Member States to eliminate all obstacles to movement across borders. In competence terms, this implied emancipating economic freedoms from the national constitutional matrix; “obstacles” were not to be defined by reference to national legislation, but on the supranational level. As the umbilical cord connecting European constitutional law and national constitutional law was severed, the 18
Case C-­‐120/78, Cassis de Dijon, 1979 E.C.J. I-­‐649. 19
Similar leading judgments will be given by the ECJ on each of the economic freedoms as years passed by. Cf. Case C-­‐76/90, Säger, 1991 E.C.R. I-­‐4221; Case C-­‐55/94, Gebhard, 1995 E.C.R. I-­‐4165; Case C-­‐415/93, Bosman, 1995 E.C.R. I-­‐4921; and after the entry into force of Directive 88/361 of 8 July 1988, 1988 O.J. (L 178) at, 5-­‐18— on free movement of capital , Case C-­‐163/94, Sanz de Lera, 1995 E.C.R. I-­‐4821. This turn had been nurtured and fostered by the Directorate General for Competition at the European Commission. See especially G. GRIN, THE BATTLE OF THE SINGLE EUROPEAN MARKET: ACHIEVEMENTS AND ECONOMIC THOUGHT, 1985-­‐2000 (2003). 20
Cf. ‘Declaration of the Commission concerning the consequences of the judgment given by the European Court of Justice on 20 February 1979 (“Cassis de Dijon”),(1980) O.J. C 256, at 2-­‐3. 2012] Nicols’ o f C
apitalism The Constitutional Protection 141 margin of discretion in the hands of the ECJ to shape the substantive constitutional norms of the European Union grew exponentially. There we find the seeds of the judicialization of Community law. This centralizing and neo-­‐liberalizing trend was further accelerated by the asymmetric design of economic policy after the Maastricht Treaty. Monetary policy has been federalized by delegating power to a central bank at the radical end of the non-­‐
democratic spectrum in its category, while fiscal and social policies have been nominally left in the hands of Member States. Structural coupling of federal monetary policy and national fiscal and social policies has been trusted to “governance” structures (the Eurogroup, various open methods of coordination) which have proven both ineffective and deeply problematic from a democratic perspective. As a result, national fiscal and social policies have indeed also been deeply (even if not homogeneously) Europeanized not as the result of political decisions, but out of market pressures exerted by private actors repeatedly empowered by the European Court of Justice, which has imposed its transcendental reading of the four economic freedoms upon subsequent domestic legislators. In particular, EU law has become inimical of public ownership or the public provision of goods or services; and has turned the rights of corporate holders into the meta-­‐rights of the European constitution. Private ownership has come to be regarded as the norm, and public ownership as the odd exception [115]. The abovementioned ecumenism of the founding Treaties implied that Community law treated public and private companies differently because they were regarded as fundamentally different. The Transparency Directive, confirmed by the fundamental judgment of the ECJ in case 188-­‐90/80, led to a new paradigm under which Community law tends to treat public and private enterprises as 21
if they were equal, which de facto results in discrimination against public enterprises. For example, the application of the “market economy investor” standard when determining whether state aid is or is not in breach of EU law assumes that the purpose of all economic enterprises is to make a profit, which is not the rationale of public companies [120]. Similarly, the mutual recognition turn has come hand in hand with the enlargement of the breadth and scope of the principle of “undistorted competition” for the supply of goods or services, including those in sectors where public provision was once the rule. As a result, 22
EU law became a one-­‐way privatizing avenue. Secondly, Community law has come to give greater weight to the rights of corporate shareholders than to the socio-­‐economic rights typically associated with the European welfare state; in essence, the four economic freedoms have been canonized as überfreedoms. The case law of the ECJ on personal taxation or non-­‐contributory pensions has for a rather long time revealed the existence of 21
Joined Cases 188-­‐90/80, [1982] E.C.R. 2425; Commission Directive 80/723/EEC of 25 June 1980 on the transparency of financial relations between Member States and public undertakings,(1980) O.J. (L 195), at 35-­‐37. 22
Nicol claims that this is further confirmed by the extent to which state aid has consolidated into a technocratic policy in which the Commission divines a rational consensus which substitutes for democratic decision-­‐making [117]. 142 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
this, and it has been spectacularly confirmed by the trio of rulings in Viking, Laval and Rüffert [102-­‐103], in which the ECJ made economic freedoms prevail over the collective 23
rights of workers. The use of proportionality review (which at least for continentals provides a reassurance of continuity with the methods of national constitutional courts) is the cloak under which a radical reordering of constitutional values has taken place. In sum, while the enforcement mechanisms of Community law were in place well before the neoliberal turn of the constitutional law of the European Union— the structural principles of direct effect and primacy can be traced back to rulings of the early 1960s, and the structural relationships between the ECJ and national courts were also rather well-­‐oiled, thanks to the way in which the preliminary reference to the ECJ has worked since the early 1970s— the substantive filling of Community law has transformed their significance. In the case of the ECHR, the fundamental transformation resulted from the radical shake up of enforcement mechanisms stemming from Protocol 13 to the Convention, which 24
entered into force in 1999. This made the right of the individual complaint a defining feature of the ECHR, at the same time that shifted the centre of gravity of the enforcement procedure from the intergovernmental Commission to the supranational Court. However, as Nicol rightly stresses, if this change has been of considerable consequence it has been because the Court had developed since the 1970s a line of interpretation of the Convention which much narrowed the discretion of Member States. The key turning point in that regard was the ruling in Sporrong, in which the ECHR placed the right to private property into a “fair balance” framework, which greatly reduced leeway for national discretion enshrined in the literal tenor of ECHR law. Thus private property, originally excluded from the Convention and only included in a rather diluted from in the First Protocol (by means of specifically accounting for the socio-­‐economic purpose of welfare state legislation and the ensuing constrains that this necessarily imposes on the right of private owners), was now transformed into a central element of the Convention. As a consequence, ECHR law emancipated itself from national constitutional standards, in a move that structurally speaking was very similar to the one undertaken by the ECJ in Cassis de Dijon [140]. This quite predictably resulted in the ECHR endorsing a substantially loaded understanding of the principle of proportionality as the framework within which to resolve conflicts between fundamental rights [141]. The most obvious mutation was that of the GATT regime, as the GATT Treaty was superseded by the WTO Agreements. This has had three major consequences. Firstly, the scope of international trade law was dramatically widened, and now includes not only goods, but also services, intellectual property and public procurement within its remit. As a result, international trade law has entered the inner sanctum of national domestic policy. 23
C-­‐438/05, Viking [2007] E.C.R. I-­‐10779; C-­‐341/05, Laval [2007] E.C.R. I-­‐11767; C-­‐346/06, Ruffert [2008] E.C.R. I-­‐
1989. See also C-­‐319/06, Luxembourg Case [2008] E.C.R. I-­‐4323. 24
For a contextual analysis of the transformation of the ECHR, see JONAS CHIRSTOFFERSE & MIKAEL RASK MADSEN (EDS.), THE EUROPEAN COURT OF HUMAN RIGHTS BETWEEN LAW AND POLITICS (2011). 2012] Nicols’ o f C
apitalism The Constitutional Protection 143 Secondly, enforcement mechanisms have been reinforced and partially privatized. The WTO Agreements turned the panels into an Appellate Board system, a much more institutionalized means of enforcement with greater institutional efficacy. Additionally, private companies have become part and parcel of the enforcement process. Both the EU 25
and the USA have decisively contributed to this development [63]. The result is that corporations play one national authority against the other so as to contest all national policies [65]. Thirdly, the ratchet effect of international trade law has been heightened, especially on what concerns services. The net effect of the inclusion of a given sector of economic activity in the “commercial market access” area is to entrench privatization in that sector forever. So, for example, a return to fully public provision of health services when their provision had been privatized (even if the bill is collected at the end of the day by the Exchequer, as in many European countries) would simply be in breach of international trade law [71]; so much so that not even regional governments would be free to take that decision when being devolved such competences in internal decentralizing processes [72]. III. The Undemocratic Mutation of the British Constitution The enmeshment of the British Constitution in the transnational web has resulted in a constitutional mutation. The fundamental norms of the neoliberalized EU, ECHR and WTO laws have come to make up the British meta-­‐constitution [81] that elevates “a certain form of capitalism above politics” [1]. In particular, the neoliberal myth of a self-­‐regulating free market has come to be endorsed as the core component of this reconfigured constitution. This marks a clear break with the old constitution because it implies (1) drawing a clear and neat line between what is constitutional (the new neoliberal meta-­‐constitution) and what is merely legal (the rest, including the old constitution), and subordinating the normative and legal forces of the whole set of legal norms to their “fitting” the constitution; as a result the contestability of the British constitution is on its way out; [155] (2) biasing the political process in favor of specific substantive outcomes, contrary to the old principle of contestability; the right to private property has become again a “divine” right, and especially so to the extent that it concerns capital holdings and the use of capital [42]; this entails biasing the outcomes of the democratic process in favor of certain societal groups; the “new” constitutional law systematically loads the dice in favor of “business” interests (especially big multinational corporations) and against a public, solidaristic vision of the 25
Council Regulation (EC) No 3286/94, of 22 December 1994, (1994) O.J. (L 349), at 71, lays down Community procedures in the field of the common commercial policy in order to ensure the exercise of the Community's rights under international trade rules, in particular those established under the auspices of the World Trade Organization; text as amended available at: http://eur-­‐
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:1994R3286:20080305:EN:PDF (last accessed: 23 December 2011). 144 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
socio-­‐economic order, something only to be expected when apolitical technocrats replace political decision-­‐making [42]; finally, this (3) entails asphyxiating the classical lines of democratic accountability by the proliferation of new actors to which political agents are indeed responsible, especially when that implies rendering accounts to private actors who in the process become as powerful and potentially oppressive as the state itself, but can cloak themselves under their characterization as parts of civil society (to wit that strange institution called financial markets) [43-­‐44]. IV. A Call for a New International Legal Framework, Empowering Not Constraining Democratic Polities The Constitutional Protection of Capitalism does not only offer the reader a reconstruction and a normative assessment of the neoliberal transformation of the British Constitution, but also a (sketchy) set of proposals concerning how the constitutional train could be returned onto democratic tracks. Nicol has no qualms with his conviction that the abandonment of the radical democratic constitution was a grave mistake [159] and that we should return to its legal framework [160]. This sets the book apart from the far from unusual defeatism, according to which changes (i.e. globalization) are irreversible, so at most we should consider how to make virtue out of necessity and rethink democratic and progressive ideals within this new context (something which invariably leads to the radical diminishing of normative 26
expectations). Nicol strikes a balance between his instrumental defense of the preservation of national competences and his conclusion that meaningful reform cannot be purely domestic. In several passages of the book, but perhaps more explicitly in [155], the author claims that a vindication of national competences when confronted with an unremitting arrogation of powers by transnational institutions and decision-­‐making processes is not necessarily to be seen as a parochial vindication of sovereignty, but indeed as a necessary precondition for a defense of the remaining pockets of democratic self-­‐government. However, to the extent that the enmeshment of the British constitution into a transnational web is the root cause of present democratic troubles, any effective reform cannot be purely domestic in the long run. If we could construct the European Communities Act so as to respect, as much as possible the powers and competences of 26
Perhaps the clearest example is the book produced by Gordon Brown. See GORDON BROWN, BEYOND THE CRASH: OVERCOMING THE FIRST CRISIS OF GLOBALISATION, (2010). Brown foresees a future in which China would become a major importer of goods and services, thus reversing the present commercial trend. Whether this is a perspective to rejoice at (ecologically and socially) is a question that the former British Prime Minister simply does not address properly. 2012] Nicols’ o f C
apitalism The Constitutional Protection 145 Parliament, we would be forced to conclude that the primacy and direct effect of Community law that depended on the will of the British Parliament (an interpretation basically codified in the European Union Act of 2011) might contribute to a marginal 27
improvement of things, but not to their proper mending. [93] A comprehensive solution would require a structural reform of the transnational web. This does not entail a nostalgic return to an impossible autarchic constitution, but “a global order that amplifies the room of choice of states, that does not undermine national autonomy” [160]. Indeed, international law is a key element for rectifying the neoliberal colonization of constitutional law. That seems to this reader a vindication of the interpretation of Keynes’s basic insights proposed so long ago by Barbara Wootton; in brief, an empowering, not 28
disempowering, international law. C. What the Book Contributes to the Debate The Constitutional Protection of Capitalism makes six important contributions to the study of public and transnational law, namely (1) it offers a structural reconstruction of law from the standpoint of the addressee that tears down the wall of separation between national and international law; (2) It puts forward a refreshing assessment of the dynamics of supranational law, which not only pays attention to the division of power across levels of government or institutional actors, but also to the distributive consequences of constitutional law; (3) it shows the extent to which the institutional setup (and its change) predetermines the substantive content of law, something which is however compatible with (4) an emphasis on individual agency; the structural, institutionally-­‐focused and economically informed approach followed in the book allows the author (5) to show the discontinuities in the evolution of transnational law, and very especially Community law; instead of one monolithic form of “capitalism” (viz. internal market), Nicol shows us the varied nature of capitalism, both across space and time (in short, from the common to the single market); (6) to recalibrate the analytical categories of public law, or what is the same, to take power seriously by means of drawing a constitutional map which focuses not only on public power-­‐holding institutions, but also on private ones. 27
The text is now in force (see http://www.legislation.gov.uk/ukpga/2011/12/contents/enacted) (last accessed: 23 December 2011). See also the “European Union Bill 2010-­‐11,” s. 18, available at http://services.parliament.uk/bills/2010-­‐11/europeanunion.html (last accessed: 23 December 2011). 28
See Socialism and Federation (1941), now republished in RAÚL LETELIER & AGUSTÍN JOSÉ MENÉNDEZ (EDS.), THE SINEWS OF PEACE 575 (University of Oslo, RECON Report 9/2010). 146 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
I. A Structural Reconstruction of Law from the Standpoint of its Addressee The first methodological contribution of Nicol’s book is a reconstruction of positive law undertaken from the standpoint of the addressees of legal norms, rather than from the viewpoint of institutional actors. This reveals that the continuous insistence on the separated and fully autonomous national (in this case, British) constitutional law confronted with supranational and international laws is an increasingly empty mantra. Once EU law has been recognized as the supreme law of the land, by means of an almost conditional acceptance of the doctrine deriving from the ruling of the ECJ in Costa (Francovich being the leading British case in that regard), and given that EU law serves as the conduit through which WTO law and to a certain extent ECHR law acquire legal effect at the national level (or get it enhanced), it is simply artificial to keep a high wall of separation between British domestic law and the three abovementioned legal regimes. If that is so, it is a matter of accuracy and honesty that the object of study of public law comprises not only domestic, but also transnational cases and statutory norms. Put differently, one should consider Cassis de Dijon or Spoorong on the same footing and with the same interest as the decisions which have long been entrenched in the national 29
constitutional canon [37]. So for all purposes, including those of normative assessment, we should consider the four 30
legal regimes en bloc. Even if the lines of causality are complex and should be of interest (more on that in the third section), the fact is that legal-­‐dogmatic and normative problems affect the transnational web, not each legal regime in isolation. So the perception that the eventual democratic deficit of EU, ECHR or international trade law does not affect British constitutional law is simply wrong, because British constitutional law is made of those planks, which are not mere ornamental addenda to it. 29
Indeed, one could ask oneself whether on certain subject matters (say the law of trusts) legal education should actually focus so much on British law, as on say Jersey or Caribbean trust law, given that in actual practice, the economic relevance of the latter is actually bigger. While law schools may have very good (normative) reasons to accept that state of affairs (British law offering the analytical and substantive tools to argue for the really relevant set of laws), legal publishers do actively market their books assuming that the readership of, for example, “The Caribbean Law of Trusts” goes beyond the Caribbean states. For example, see GILBERT KODILINYE & TREVOR A. CARMICHAEL, COMMONWEALTH CARIBBEAN LAW OF TRUSTS (2002). The enduring association of the Law of Trusts to Equity is rather ironic given the actual use at which most trusts are nowadays put, namely tax avoidance or outright fraud. 30
A further implication of this approach is that we would be well advised to overcome the separate analysis of international and supranational legal regimes as such. It is not only the case that Community law, as a matter of positive law, serves as the carrier of WTO law and ECHR law into national law, but also that Nicol’s historical analysis reveals that all three systems exert quite an effect on the evolution of the others [152]. Indeed, the transnational web is one in which all the four legal regimes under consideration have been enmeshed [67]. Thus, our proper object should indeed be transnational constitutional law, as “an integrated body of domestic and international law that regulates both private persons and states, competition in both the market for private goods and the market for public goods” [157, which is in its turn taken from Joel Trachtman, “The international economic law revolution,” U of Pennsylvania Journal of Economic Law and Politics, 1996]. 2012] Nicols’ o f C
apitalism The Constitutional Protection 147 II. Distributive Consequences of Constitutional Law are of Essence Nicol makes a second major methodological point, namely, that the socio-­‐economic consequences of changes in constitutional law are of essence. It is perhaps here where Nicol makes a more refreshing contribution to the literature, or to be more precise, recovers a perspective and an approach which has become increasingly infrequent in the last three decades, from what this reviewer knows in all four legal systems under consideration, but perhaps particularly so on what concerns Community law. Indeed, constitutional law has tended to be analyzed in rather aseptic terms. In particular, Community law has largely portrayed European integration as a competence game played among states (most of the time meaning national governments) and/or institutions. So much so that, as Giandomenico Majone has rightly insisted, European law and politics tends to be appraised from a one-­‐dimensional perspective, that of more or less 31
integration. The decisive question seems to be whether a given change results in more integration (more powers being shifted from the regional and national levels to the supranational one) or in less. Nicol’s argument leads to adding (or perhaps one should say recovering) a second and fundamental dimension, that of the distributive consequences of changes. The Constitutional Protection of Capitalism invites us to appraise transformations by considering which specific rights (private property, freedom to move capital, freedom of establishment) and whose interests (those of capitalists and renters) benefit from the progressive transnationalization of law. And because Nicol does not subscribe to a benign and naïve (when not perfidious) positive-­‐sum game hypothesis (implicit in a good deal of the literature, and certainly on the Commission’s policy statements of the last four decades), the author also stresses which rights are weakened (political and socio-­‐economic rights), and to the detriment of whose interests (those of citizens at large, especially those depending on waged labor or those who lack a proper job or simply cannot participate for one reason or the other in the labor market) transnationalization moves forward. So while Cassis de Dijon certainly furthered European integration (it has indeed been portrayed by many authors as a key decision in the process leading to the overcoming of the “Euro-­‐
sclerosis” of the seventies and the re-­‐launching of the process of European integration), it did so to the benefit of capital holders and to the detriment of most citizens. Indeed, Nicol seems to suggest that the key conflict is not so much between levels of government as it is between public versus private power-­‐holders. The European Communities of the 1950s and 1960s augmented their powers while reinforcing those of its Member States (a key 32
insight of Milward’s European Rescue of the Nation-­‐State). There was no magic in this equation, but a shift in influence, which moved from private to public hands. Cassis de Dijon started a different pattern of power dynamics, in which the shift of competences to 31
GIANDOMENICO MAJONE, EUROPE AS THE WOULD-­‐BE WORLD POWER: THE EU AT FIFTY ch. 3 (2009). 32
ALAN S. MILWARD, THE EUROPEAN RESCUE OF THE NATION-­‐STATE (1992). 148 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
the supranational level has weakened public power across all levels, to the benefit of private actors. Consider the most praised of the four economic freedoms in the constitutional literature, free movement of persons. The right of free movement of workers (widened to free movement of persons after the Maastricht Treaty and the ECJ ruling in Martínez Sala) may indeed be seen as fostering the civic rights and liberties of some individuals, which would otherwise be prevented from moving to their destination of choice to engage in paid work (or now, in more general terms, decide where and in the company of whom they spend their lives). But the overall assessment of free movement of persons must take into account the aggregate and structural implications of that faculty. In particular, (1) what other rights are weakened when free movement of persons is strengthened (viz. the traditional tradeoff between higher salaries and restrictions on the entry of foreigners to the labor market); and (2) what the aggregate implications are of entrenching a supranational right of free movement of persons (the subjection to constitutional review by reference to that economic freedom of areas of the law which were built and keep on being structured according to a very different logic, such as personal tax laws or non-­‐
33
contributory pensions). European law may be more humane in specific cases at the cost 34
of undermining distributive justice at large. This distributive assessment of constitutional law is absolutely necessary when undertaking a proper assessment of positive constitutional law and of prospective reforms. Indeed, the denial of the relevance of the distributive consequences of constitutional law is a key ideological device to hide not only the socio-­‐economic implications of fundamental laws, but also the power shifts resulting from constitutional changes. A device which has been fully at work in British debates over the convenience of a written Constitution or a written Bill of Rights [30], and one may say the same in European debates on constitutional reform processes (viz. the recent debates on Laeken and Lisbon). One may be allowed to point to the reader that the popularity of judicial review is a rather recent fruit of the case law of the US Supreme Court in the 1950s and 1960s, and of the German Constitutional Court since the entry into force of the 1949 Fundamental Law. But it suffices to evoke the New Deal polemics (on the two sides of the Atlantic) to realize that judicial review of legislation does not necessarily lead to such progressive results, and can indeed lead to very 35
regressive distributional results. 33
One is tempted to add that these two-­‐dimensional perspectives would certainly be of great relevance in assessing the various proposals to overcome the present European financial crisis, but this will be further covered later in this review. 34
Or so I have argued. See Agustín José Menéndez, More Humane, Less Social, in THE PAST AND FUTURE OF EU LAW: THE CLASSICS OF EU LAW REVISITED ON THE 50TH ANNIVERSARY OF THE ROME TREATY 363-­‐393 (Miguel Poiares & Loïc Azoulay eds., 2009). 35
Among the vast literature, see I.F. STONE, THE COURT DISPOSES (1937); DEAN ALFANGE, THE SUPREME COURT AND THE NATIONAL WILL (1937); EDOUARD LAMBERT, LE GOUVERNEMENT DES JUGES ET LA LUTTE CONTRE LA LÉGISLATION SOCIALE AUX 2012] Nicols’ o f C
apitalism The Constitutional Protection 149 III. The Institutional Setup and the Realm of What is Substantively Possible But the fact that substance is of essence does not mean that institutional setups are irrelevant; far from it. Nicol rightly emphasizes that the European constitutional mutation is also an institutional transformation. The two processes are deeply related, because institutional structures may play a considerable role in predetermining what is (and what is not) substantially possible. The institutional grammar, so to say, predetermines the substantive language. While in the purely procedural radical British Constitution institutions facilitate wide-­‐ranging democratic choice, the transnational web biases the constitution by shaping the institutional setup so as to ensure that whatever norm it produces is one in line with neoliberal values. In particular, the shifting of power from the hands of directly elected and politically accountable institutions (Parliament) to unelected, unrepresentative institutions (supranational and international judges and institutions such as the European Central Bank) results in accountability lines biased towards non-­‐political and non-­‐public institutions. As a result, private actors such as financial institutions and financial markets (one is tempted, although Nicol rarely uses the word, to simply write “the City,” as I will do in section D. 2. II) become key constitutional and political players. Indeed one may read The Constitutional Protection of Capitalism as the application of a number of the theoretical points raised by Nicol in his previous study on the judicialization of British 36
politics as a result of accession to the EEC. Whether one agrees or not with this specific finding, his reminder that institutional design predetermines the realm of what is possible in substantive policy terms is worth keeping in mind. IV. Still, Individual Agents Matter While law should be approached in a systematic, structural and empirically attentive manner, Nicol does not put into question the relevance of individual agents. The book spares no criticism on the British (and by implication European) political elites that since the late 1970s have played a key role in the radical transformation of the UK (and in general, European) Constitution [3, 91, 126, 154]. All key decisions (or non-­‐decisions, as ÉTATS-­‐UNIS: L'EXPÉRIENCE AMÉRICAINE DU CONTRÔLE JUDICIAIRE DE LA CONSTITUTIONNALITÉ DES LOIS (Government of Judges and the Fight Against Social Legislation in the United States: The American Experience of Judicial Control of the Constitutionality of Legislation) (1921). See also the exchange between Carl Schmitt and Hans Kelsen in CARLOS MIGUEL HERRERA, LA POLÉMICA SCHMITT/KELSEN SOBRE LA JUSTICIA CONSTITUCIONAL, (The Schmitt/Kelsen Controversy on Constitutional Justice, 2009); among recent scholarship, see MARIÁN AHUMADA, LA JURISDICCIÓN CONSTITUCIONAL EN EUROPA (Constitutional Jurisdiction in Europe, 2009). 36
See DANNY NICOL, EC MEMBERSHIP AND THE JUDICIALIZATION OF BRITISH POLITICS (2001). Both books share a good deal of the basic premises of Ran Hirschl, see especially RAN HIRSCHL, JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM (2004). 150 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
37
Susan Strange rightly pointed out long ago) were indeed framed by the specific political, historical and economic context [7, 12, 16] from which they were taken (or not taken). But at the end of the day, they were all human decisions, which could have been different if taken by different persons [152] and, moreover, can still be reversed. If one is allowed to reverse the order of a famous dictum, men don’t make history as they please, but they still make history. That Nicol believes this is so makes of the book something rather more valuable than a nostalgic and depressive indictment of the present, as an early reviewer 38
rather hastily concluded. V. The Plurality of Capitalisms The brief but significant historical accounts of the evolution of EU, ECHR and WTO law included in chapters 2 to 4 of The Constitutional Protection of Capitalism cast very significant light on the relationship between law and capitalism, and this is true for at least four significant reasons. Firstly, Nicol’s analysis shows that we have to account for the spatial variations in the institutional and substantive definition of what a market economy is (as the political and 39
economic literature on the varieties of capitalism invites us to do), but also with temporal variations on the characterization of the main institutional and substantive components of the market economy. Nicol rightly insists on the transformative role played by Cassis de Dijon (and the leading companion judgments concerning each of the other three economic freedoms) in the understanding of what the internal market was about. Indeed, the ECJ shifted the EU’s socio-­‐economic constitution from one of anti-­‐discrimination (which extended the protection it afforded to national economic actors, goods and services as well as non-­‐national ones) to a substantive constitution that Member States would breach by creating obstacles to the exercise of economic freedoms (in the very terms already 40
considered above). We would only fool ourselves into an anachronistic trap if we 37
See SUSAN STRANGE, MAD MONEY 5, 38 (1988). 38
TONY PROSSER, PUBLIC LAW 208-­‐213 (2011). 39
See VARIETIES OF CAPITALISM: THE INSTITUTIONAL FOUNDATIONS OF COMPARATIVE ADVANTAGE (Peter A. Hall & David Soskice eds., 2001). GEORG MENZ, VARIETIES OF CAPITALISM AND EUROPEANIZATION: NATIONAL RESPONSE STRATEGIES TO THE SINGLE EUROPEAN MARKET (2005); MATHHEW ALLEN, THE VARIETIES OF CAPITALISM PARADIGM: EXPLAINING GERMANY’S COMPARATIVE ADVANTAGE? (2006); and BEYOND VARIETIES OF CAPITALISM: CONFLICT, CONTRADICTIONS, AND COMPLEMENTARITIES IN THE EUROPEAN ECONOMY (Bob Hancké, Martin Rhodes & Mark Thatcher eds., 2008). A refreshing approach can also be found in HA-­‐JOON CHANG, 23 THINGS THEY DON’T TELL YOU ABOUT CAPITALISM (2010). 40
While the literal tenor of the Treaties has remained largely unchanged, the way in which the basic principles are constructed has been dramatically transformed. Consider that the free movement of capital was originally the “Keynesian” freedom of payments, a faculty ancillary to actual trade in goods. Now it has become a meta-­‐
freedom, instrumental in the financialization of the economy as a whole. 2012] Nicols’ o f C
apitalism The Constitutional Protection 151 41
pretended that there was a historical continuity where one finds a radical change. In brief, there is a big difference between the market in the common market of the 1960s and early 1970s and the market in the single market of the 1980s and 1990s. Secondly, Nicol highlights the tension between the ideal of neoliberalism (the myth of the self-­‐regulating market) and the actual practice of neoliberalism, which can be properly defined as the promotion of the interests of capital holders [38]. When the myth clashes with the interests of the selected few, the myth gives way. That is a point that Nicol illustrates directly by reference to the measures adopted after the fall of Lehman Brothers (and one could argue, during the Eurozone crisis) [124]. His empirical approach to what neoliberalism is (certainly inspired by Harvey’s works) explains why Nicol considers neoliberalism to cut across the traditional left/wing divide, or what is the same, that the political spectrum has been reconfigured by the victory of neoliberalism, so while the left/right divide continues to make sense, how we place political parties or politicians in 42
that axis may be divorced from actual policies. Nicol invites us to realize that we are confronted with “neoliberals of all parties”, if the reader allows me the occasional Hayekian pun. Thirdly, The Constitutional Protection of Capitalism underlines the historical and contingent character of the neoliberal turn. Not only markets are social constructs, but the shift of power from representative institutions to non-­‐elected ones and to corporations is not a matter of fact, but the result of decisions (or non-­‐decisions). We could discuss whether neoliberalism should be reversed (and on that Nicol makes a very persuasive argument), but what is to be accepted is that it can be reversed (cost and expediency being, I insist, a different matter) [152]. Fourthly, Nicol suggests that the specific implications of the transnational enmeshment of constitutional law depend on the national constitutional setup. So while the rhetoric of internationalization and globalization of law is a homogenizing one, proper attention to the institutional setup and the socioeconomic configuration of each political community points to the far from homogeneous character of transnational law. Each constitution will be differently affected by supranational and international legal regimes [44]. Transnational law is not (yet) global law, but varies across countries as a result of different national 41
Indeed, it is part of the ideology of neoliberalism, and indeed of (whether conscious or unconscious) neoliberal interpretations of Community law to downplay how much Community law was transformed by the paradigm shift in the understanding of economic freedoms following Cassis de Dijon (in itself, one should add for the sake of completeness, much influenced by political decisions, including the abandonment of capital controls by Thatcher in 1979). This will be elaborated upon later in the review. 42
See the very instructive review of Ian Gilmour & Mark Garnett’s WHATEVER HAPPENED TO THE TORIES: THE CONSERVATIVES SINCE 1945, in Ross McKibbin, Why One-­‐Nation Tories Can No Longer Make an Impression on the Political Establishment, 20 London Rev. of Books 8-­‐9 (1998). See also DAVID HARVEY, A SHORT HISTORY OF NEOLIBERALISM (2007) and DAVID HARVEY, THE ENIGMA OF CAPITAL (2010). 152 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
constitutional traditions and historical trajectories. I will return to this point (perhaps with a vengeance) in section D. VI. Recalibrating the Analytical Categories of Public Law A systematic, institutionally sensitive and empirically oriented reconstruction of constitutional law reveals the limits of the traditional conceptual and analytical tools of public law. Stated in such terms, Nicol’s thesis seems to be echoing a central tenet of sui generis theories of Community law (and for that matter, international trade or ECHR law), according to which the radical novelty of the new legal order requires fully rethinking the conceptual and analytical toolbox of public law. In particular, we are frequently told in the EU literature that we would be well advised to get rid of all state-­‐centric concepts and analytical categories, which seem to be most of those usually employed, given the predominant methodological nationalism in law and political science. However, Nicol’s point is a rather different one. His is a call for a recalibration of conceptual and analytical tools to take account of the key role of private actors. More than methodological nationalism, what Nicol wants to overcome is state-­‐fetishism, i.e. the assumption that the only power to be checked and reined in by public law is the power of public institutions 43
[8]. But if there is indeed no longer a clear line of demarcation between national and transnational law, then it really makes no sense to keep on pretending that the institutional actors and the decision-­‐making procedures which play a key role in giving law its shape are only public institutional actors. Indeed, major constitutional transformations have been supported and fostered by private actors. Nicol refers here to the central role played by the European Roundtable of Industrialists on the road to the Single European Act, and in general, to the efforts (and successes) of multinational companies to camouflage the high politics of constitution-­‐making in international trade law as the low politics of technical international trade law [9, 67, 153]. A rather similar line of argumentation could exist at the legislative stage (vis. standard-­‐setting in European 43
It would be extremely interesting to apply this insight to some of the recent debates on constitutional law and political theory. Consider taxation for instance: Robert Nozick rehashed some (allegedly classical Greek) ideas to defend his claim that personal income taxation was a form of slavery (see ROBERT NOZICK, ANARCHY, STATE AND UTOPIA 169 (1974), “Taxation of earnings from labor is on a par with forced labor”). This was then popularized by neoliberals, both at the intellectual and rhetorical level, as an argument against the state in toto. Leaving aside for a moment the essential manipulative character of Nozick’s claim and its vulgarization (obviously, taxes in authoritarian regimes are a form of slavery, but definitely not most taxes in most European countries, certainly not in contemporary France or Sweden, targets of choice for neoliberals as large and mature welfare states), it must be noticed that by limiting the concept of taxation to money compulsorily requested by the state and paid to it, we leave out of the picture any other form of compulsory extraction of money. So how do we call the exorbitant price that many people had to pay for their houses during the real estate bubbles of the past decade? Indeed, Dühring was perhaps after something when he characterized monopoly rents as taxes by the sword, leaving aside for a moment Engels’s quibbles on the extent to which Dühring failed to offer a comprehensive analysis of the problem. See Friedrich Engels, Anti-­‐Dühring, in Vol. 25 THE COLLECTED WORKS OF KARL MARX AND FRIEDRICH ENGELS 200 (1987). 2012] Nicols’ o f C
apitalism The Constitutional Protection 153 Community law [99-­‐101]), And it goes without saying, although Nicol does not dwell at length on this point, that multinational corporations tend to be repeated players before courts and judicial or quasi-­‐judicial enforcement mechanisms, something which makes 44
judicialization an even more problematic development. Additionally, the analysis proposed by Nicol does away with many of the simplistic assumptions of traditional constitutional law, such as the famous claim that the British Constitution is unwritten. Leaving aside the (rather to the point) argument concerning the 45
fact that it was actually a written constitution, although scattered in many different texts, the enmeshment of the Constitution in the transnational web actually implies that the real British meta-­‐constitution, which prevails over the old Constitution, is a written constitution [11]. D. Three Critiques In the following, I will (1) critically consider the evolutionary democratic achievement of the British constitution, by means of questioning whether the British honestly is the only full-­‐blown procedural constitutional democratic tradition, and by means of showing that the evolutionary nature of the British Constitution may account for its low resilience when confronted with the neo-­‐liberal trend; (2) question the causal role allegedly played by all three international legal regimes, and especially Community law, in the demise of the radical British constitution, on the basis of the enduring ambivalence of Community law, and the key role played by domestic British constitutional law in the neoliberal transformation of EU, ECHR and international trade law; (3) insist on the democratizing potential of EU law and European politics. I. A Radical Democratic Constitution: Only in Britain? Nicol claims that only a purely procedural constitution (i.e. one that limits itself to ensuring that the democratic will is the law) is a truly democratic constitution. He seems to come very close to affirming that only the radical British constitution of the 1940s, ‘50s and ‘60s was a purely procedural constitution, and that the only proper role model of a democratic 46
constitution is the radical British one. These three claims are in my view clearly at work in 44
Cf. The seminal article of Chris Harding, Who Goes to Court in Europe, 17 EUROPEAN LAW REV. 105-­‐195 (1992). 45
See John MacDonald MacCormick vs. Lord Advocate, (1953) SC 396. And the very apt comment of Neil MacCormick, Does the United Kingdom Have a Constitution? Reflections on MacCormick vs. Lord Advocate, 29 N. IRELAND LEGAL QUARTERLY 1-­‐20 (1978). 46
At present perhaps New Zealand would remain closer to the radical democratic British model than the British Constitution itself, although the New Zealand legal system is of course also enmeshed in a transnational legal web. 154 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
Nicol’s thorough indictment of US-­‐style constitutionalism. “Madisonian” constitutional philosophy would have been and would remain not so much about realizing the 47
democratic will of citizens as about constraining it [32]. This would account for the central role played by the US Supreme Court in the political process, which in its turn would have fed an adversarial and elitist style of politics. The globalization of law is indeed a development that worries Nicol because it consists of, to a rather large extent, the Americanization of law [26], and consequently, would end up undermining democratic constitutional traditions wherever they exist, and replacing them with reborn Madisonian constitutionalism. Let us assume, for arguments sake, that Nicol is right in his indictment of “Madisonian” constitutionalism (whether that is coterminous with US constitutionalism is indeed another 48
matter) and on his claim that a democratic constitution is essentially about process, not substance (so much so that its defining principles are those of contestability, neutrality and political accountability). Does this immediately entail that the British radical constitution is the only democratic constitution in sight? Can we indeed be so sure that we have to resign ourselves to the fact that no democratic constitution can be more resistant than the British one when confronted with such neoliberal and transnational forces? 1. All Democratic Constitutions Point to a Thin Constitutional Substance Democratic constitutions may well be properly defined as contestable and neutral fosterers of political accountability. But that still leaves open how these three features, and especially the first two, relate to each other. Neutrality seems to require the constitution to be so thin as to be invisible. In the famous dictum of AJ Griffiths, the constitution is 49
whatever happens. Contestability seems to point to a reflexive procedure which makes contestation and change possible. But such a procedure requires more than an invisible constitution. It requires a pre-­‐commitment to the reflexive procedure itself. That points to a thin substance, fleshed out not by reference to metaphysical truths, but by means of considering the practice of democratic decision-­‐making, namely what citizens themselves assume is part of that “thin substance” when they enter into actual democratic deliberations. The connection is not with one concrete democratic deliberation, but with the practice of democratic deliberation (so much so that we can talk, and perhaps we should talk, of a procedural substance) as I have just suggested. That thin procedural 47
Which is historically rather accurate. See ROBERTO GARGARELLA, THE SCEPTER OF REASON (2000). 48
Whether the only constitutional theory fitting the US Constitution is a Madisonian one is a rather different issue. Cf. BRUCE ACKERMAN, WE THE PEOPLE (1998); MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (2000); and LARRY KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004). 49
A. J. Griffiths, The Political Constitution, 42 MOD. LAW REV. 1, 19 (1979). 2012] Nicols’ o f C
apitalism The Constitutional Protection 155 substance is part and parcel not only of continental constitutions, but also of the British one. Nicol oscillates between these two possible understandings of what a procedural democratic constitution actually is, but the superiority and exclusivity of the British Constitution could only be based on the understanding of the procedural democratic as an invisible, Griffithian fundamental law. Such a conception can be used as a rhetorical or pedagogical device to illustrate the differences between the British and the American thick 50
substantive constitutions (as Nicol does), and it could also be said to represent the 51
understanding of the constitution of the “man on the Clapham omnibus.” Having said that, the Griffithian understanding of constitutional law does not come to terms with the problem of the “suicide of democracy”, or put differently of a democratic decision to put an end to contestability (something Nicol claims in the book is now the case, and is the result of the neo-­‐liberal ascendancy) which can only be solved in a non-­‐
paradoxical way by means of accepting the grounding of democracy in a thin substance. Moreover, the invisible constitution offers a poor substitute for British constitutional practice in the golden postwar years, which was underpinned by the identification of the fundamental law with a “thin substance”. Firstly, law students taking their BA in Law in the United Kingdom did indeed spend some time reading constitutional law. Such a practice would have been rather odd were the radical British Constitution to be deprived of any substance, or to be purely contingent in a Griffithian sense (“whatever happens”). Secondly, and more decisively, British constitutional discourse supported the claim that there was a substance that made up the British Constitution. Consider the debates surrounding the accession of the United Kingdom to the European Communities, and in particular, the question of whether the decision could be taken by a simple vote in Parliament. Of all MPs, what Enoch Powell, or for that matter Chris Shore, seemed to be arguing in 1972 was that the decision was a constitutional one, and as such, could not be taken by Parliament without a further consultation with the people (i.e. a general election in which a key issue in the parties manifestos would have been their attitude towards British accession, or more oddly at that stage, a referendum). And that was so because the decision was likely to have a major transformative impact on the design of political institutions and the substantive content of public policies. If that was so, then there are some questions, institutional structures and substantive contents which were part and parcel of the British Constitution; which made up the substance defining it, and in the first three decades of the postwar period, amounted to the radical democratic British constitution. 50
Which indeed was part of the constitutional practice of the US Supreme Court before the New Deal and seems to be on its way back, and that certainly has inspired both the ECJ and the ECHR since the late 1970s. 51
If one is allowed to paraphrase Walter Bagehot’s timeless quip. 156 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
So it seems that we need a more nuanced understanding of the idea of a purely procedural constitution. Contestability must be taken to require that the fundamental law should contain no institutional or substantive pre-­‐commitments other than those strictly necessary to ensure that the political process remains open. This understanding points to a thin constitutional substance, not to a constitutional void. Part of this thinness in the British radical version responded to the fact that the constitution was to remain largely unwritten and mostly enshrined in constitutional conventions rather than on formal documents. While that might have increased the discretion to muddle through during constitutional crises, it did not mean that there was no line dividing what was fundamental from what was not fundamental in the law. 2. Expanding the Concept of Radical Democratic Constitution But if the latter is the proper definition of a purely procedural Constitution, then the differences between the British democratically evolved constitution and postwar continental constitutions are much less than what Nicol seems to assume, and this is true for two main reasons. Firstly, the difference between the British democratic tradition and the postwar continental ones would boil down to a different prudential judgment on what is the 52
necessary minimum set of constitutional pre-­‐commitments. The radical British Constitution seemed to favor a drastically short set of constitutional pre-­‐commitments, while postwar continental constitutions presupposed that democracy could only take root and entrench itself if a slightly larger set of constitutional pre-­‐commitments were made. Still, the difference would not be of constitutional philosophy, but of prudential constitutional judgment; of quantity, not of quality. Consider the famous German “eternity clause”, which seems to set the Teutonic constitution apart from the British (and perhaps even from most if not all other European constitutions). The German Fundamental Law of 1949 included (and keeps on including at the time of writing) an “eternity clause” setting institutional and substantive limits to the amendment of the Constitution, so much so that not even We the German People as pouvoir constituent could amend that clause (thus the appeal to “eternity”). Still, all democratic constitutions must contain an “eternity clause,” if 52
It seems to me that we should distinguish two main continental traditions: (1) a dominantly revolutionary one, of which the French and Italian constitution would constitute clear examples, and within which the constitution is essentially what “we the people” decide it to be. The constitution remains purely procedural, but assumes the existence of a dualistic democratic process, which distinguishes between extraordinary or constitutional politics and ordinary politics; (2) and a more substantive constitutional tradition, which is associated foremost with the German Constitution, and assumes that the constitution is defined by reference to a set of core constitutional values which are placed beyond all politics, both constitutional and ordinary. If within the German tradition one inclines to uphold (as the German Constitutional Court did at some point) the existence of an objective order of values, one comes very close to what Nicol would label as a Madisonian constitutional theory, at least in structural terms. But that is not the only plausible interpretation of the German Constitution, and of its principles. 2012] Nicols’ o f C
apitalism The Constitutional Protection 157 only implicitly. The reason is not so much substantive, as conceptual. There is a point at which changes in the democratic constitution would be so drastic that to characterize the fundamental law as democratic would stop making any sense. Indeed, were the British Parliament to pass a statute vesting all public powers in the Queen, that statute would be widely regarded as unconstitutional; and even if voted for by a large majority in the Commons under widely exceptional circumstances, one would expect a political backlash as time passed, with the constitutionality of the statute being seriously questioned. While the different British historical tradition will make improbable arguments based on a reference to eternally guaranteed contents of the constitution, structurally similar arguments will be at the center of the debate, even if formulated in a different constitutional dialect. Indeed what German scholars tend to discuss by reference to the “eternity clause” has a strong structural resemblance to what in other jurisdictions is 53
discussed under the topic of the limits to self-­‐amendment. This proves that a radical democratic constitution is by necessity not so much unbiased, as biased in favor of keeping open the democratic procedure. But that necessity makes reference not to a metaphysical truth, but to a thin substance to be fleshed out by reference to the practice of democratic decision-­‐making (so much so that we can speak, 54
and perhaps we should speak, of a procedural substance). That thin procedural substance is part and parcel not only of continental constitutions, but also of the British one. Secondly, the actual constitutional experience of the Les Trente Glorieuses proves that the postwar European constitutions (containing more substance than the British one) actually contributed to the establishment of functional democracies, instead of undermining the will of the people. Indeed, the overall shape of continental European politics during the first three postwar years was not that different from British politics. The democratic pressures that led the Tory party towards “One-­‐Nation” policies were not that different from the democratic pressures that made Christian-­‐Democratic parties of continental Europe into supporters of the development of the welfare state. In particular, the most problematic of all institutions in Nicol’s narrative, courts assuming the power to review the constitutionality of legislation, supported democratization rather than undermining it. Much depended on who was authorized to review the constitutionality of statutes, how constitutional judges were nominated, what the length of their mandates was, and what kind of powers were vested in them. In that regard, it must be said that even in Germany (whose Constitutional Court is perhaps the one which is more frequently compared to the US Supreme Court) constitutional review was never undertaken in a purely “Madisonian” fashion. European constitutional review was openly political by design. The constitutional review of legislation used to be monopolized by a single and ad hoc constitutional court, so 53
54
Whether the British Parliament can limit itself is an old riddle in British public law. This is the argument of both JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS ch. 3 (1996); and ROBERT ALEXY, DISCOURSE THEORY AND HUMAN RIGHTS, 9 RATIO JURIS 209-­‐235 (1996). 158 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
ordinary courts could not set aside statutes approved by Parliament. The magistrates sitting in the Constitutional Court tended to be elected by Parliament, mostly among scholars, and at any rate not exclusively among the rank and file of ordinary judges or practitioners. Their terms in office were limited, ensuring a degree of political responsiveness, even if delayed in time. Most importantly, while constitutional courts were assigned roles not so different from those played by the US Supreme Court (such as the review of legislation in concrete cases on request from a citizen whose fundamental rights were allegedly infringed), there was still an underlying culture of self-­‐restraint associated to the historical Kelsenian model of the constitutional court as a negative legislator. If the constitutional traditions of postwar continental Europe were also procedural ones (the difference lying in prudential judgments about the extent of the institutional and substantive pre-­‐commitments) and if they actually helped in establishing and consolidating functional welfare states in line with the preferences of the majority of citizens, and not the majority of those citizens better off in society, one wonders whether the baseline of democratic constitutionalism should not be rendered more ecumenical. Perhaps, after all, the British is only one, and not the only one, radical democratic constitutional model. Indeed, if my argument so far is not wrong, then postwar continental constitutions, such as the French, Italian and German ones, should also be regarded as procedural constitutions. They contained a thicker and wider set of institutional and substantive pre-­‐commitments than the British Constitution, but that was the result of a different prudential judgment on what the proper “thin” substance of their respective national constitutions should be, given the concrete and idiosyncratic national context. So the British and the postwar continental constitutions are variants of the same genus: the procedural democratic constitution. 3. The Resilience of the British Radical Democratic Constitution But if this is so, it may be pertinent to consider (following Nicol’s invitation to a comparative study) which of the constitutions within the wider procedural family provides a better platform for defend democracy against the neoliberalizing trend. While I do not feel qualified to offer the reader a conclusive argument in this regard, it is far from obvious whether it could be argued that evolutionary constitutions, such as the British, fare better in this regard. Firstly, such a claim seems not to be supported by The Constitutional Protection of Capitalism, which documents rather extensively the structural weaknesses of an evolutionary established democratic constitution when facing the pincer movement of a government dedicated to increasing the enmeshment of the British legal system in the transnational neoliberal web (as was the case with all British governments for more than three decades) and an international environment clearly fostering such neoliberal transformations. A monistic political system (in which Parliament can by itself amend the fundamental law without further checks and balances) and an unwritten constitution make possible, even if not unavoidable, rather sudden constitutional shifts. Secondly, the (at 2012] Nicols’ o f C
apitalism The Constitutional Protection 159 least partially) unwritten character of the Constitution and the onus on constitutional conventions renders more difficult the rearguard defense of the previous constitutional settlement. Indeed, one guesses that Nicol’s attempt at “distilling” the core principles of the procedural constitution would have been easier and would have resulted in even stronger arguments if based on a written constitution in the French, Italian or German style. After all, it was Bentham who argued that the written character of the law is a necessary precondition for its democratic character (and who was also against entrenching 55
substantive constitutional contents). Not only because in such a way we know what it is of the present positive law that we want to change, but also because it is hard to simply flout the democratically established will, as there is a written record of what was decided through the democratic political process. II. Keeping the Culprit at Bay or is Transnational Law Really the Nemesis of Democracy? Nicol’s second major claim is that the mutation of British fundamental law from a radical democratic constitution to a deeply undemocratic and undemocratizing constitution was caused by the “enmeshment” of British law into transnational law. However, it seems to me that we should question both the simplistic description of Community law as a neoliberalizing force and the direction of the causal arrow, particularly in order to further reflect on whether constitutional changes in Britain played a major role in the radical transformation in the nature and implications of Community (and WTO) law. 1. The Enduring Ambivalent Character of Union Law Nicol stretches his “neoliberal” capture argument too far, by reducing “trasnationalizing” legal regimes, and very especially Community law, into “neoliberalizing machines”. That his point is a trifle exaggerated is something that can be illustrated by the following two considerations. Firstly, Nicol’s historical reconstruction shows that all three regimes, and very especially Community law, were at the very least ambivalent projects; but if that is so, they must contain a latent ambivalent potential, at least until neoliberal capture turns out to be complete. Especially if one adds to Nicol’s emphasis on the ambivalent character of the project, the further claim that the historical record supports the conclusion that the main thrust of Community law in action during the Les Trente Glorieuses was clearly tilted towards ensuring the preeminence of politics in the design of socio-­‐economic policies. 55
See Jeremy Bentham, ‘On Codification’, first part of ‘Papers relative to codification and public instruction,’ in LEGISLATOR OF THE WORLD: BENTHAM’S WRITINGS ON CODIFICATION, LAW AND EDUCATION 5-­‐54 (Philip Schofield & Jonathan Harris eds., 1998); and Jeremy Bentham, Anarchical Fallacies, in VOL. 2 THE WORKS OF JEREMY BENTHAM 489-­‐534 (1863). 160 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
Indeed, the Communities aimed at coordinating the exercise of public powers, something that led not so much to centralization as to the reaffirmation of public power at all levels of 56
government (another aspect of The European Rescue of the Nation-­‐State). A paradigmatic example was the very act of creation of the European Coal and Steel Community. The powers the High Authority got were only nominally transferred from national capitals, as (barring the cases in which the coal industry had been nationalized in the immediate postwar, such as France), power had de facto been in the hands of transnational cartels for 57
decades. Similarly, the completion of the four stages towards the creation of the customs union and the common market prompted debate, studies and Commission proposals aimed at the harmonization of personal tax systems, with a key goal of planned policy being the Europeanization of progressive taxation. Emphasizing this “radical democratic” lineage is very important. Because the neoliberal transformation has itself been the result of an evolutionary transformation of the fundamental principles of Community law, it has not proceeded by weeping out the pre-­‐existing institutional structure and substantive commitments, but by means of infiltrating it. This entails that bits and pieces of the old understanding remain in place, and are somehow pushed into the background, despite the fact that they may eventually be recovered. Secondly, Nicol offers too flat a description of the European Union at present [163: globalization overkill]. While the main thrust of the case law of the ECJ and of policymaking at the European level could fairly be described as neoliberalizing (indeed one could argue that the structural biases of the European Constitution are even more tilted in that direction than Nicol argues, due to a double structural democratic deficit), the very fact that integration was for three decades based on a different understanding of the socio-­‐
58
economic constitution of the Union renders things a trifle more complicated. The political framing and disciplining of market actors may have lost grandeur, but many regulations and directives approved during the first decades of integration remain in force. More to the point, one finds that even among the recently approved regulations, some still are properly described as corresponding to the first understanding of how to make the market truly common. A clear-­‐cut example is the savings directive of 2003, a rare piece of legislation to the extent that it points to the institutional structure that could effectively undermine the structural power of capital holders and recover public steering capacities, by means of introducing as a general principle the automatic exchange of information 56
JEAN FOURASTIÉ, LES TRENTES GLORIEUSES (1979) and MILWARD, supra note 34. 57
See Paul Reuter, La Communauté Européenne du Charbon et de l’Acier, Paris: Librairie générale de droit et de jurisprudence R. Pichon et R. Durand-­‐Auzias, 1953, and G. SPERDUTI, LA CECA, ENTE SOPRANAZIONALE (The European Coal and Steel Community, Supranational Entity, 1966). 58
On the double democratic deficit, see Agustín José Menéndez, The European Democratic Challenge, 15 EUROPEAN LAW JOUR. 227-­‐308 (2009). 2012] Nicols’ o f C
apitalism The Constitutional Protection 161 59
among European tax administrations (albeit with many shortcomings and loopholes). However, one may also add that the peculiar way in which "European economic governance" has been reformed since May 2010 considerably reinforces Nicol's case. 2. Neoliberalism as a Local Specialty: The City and the Making of the Transnational Web Nicol stresses the role of national political leaders in the making of the transnational web and the consequent enmeshment of national legal systems. National leaders (such as Margaret Thatcher) would have hidden behind the smokescreen of international or supranational law to effect radical changes to the British constitution (one presumes the argument would be the same concerning at the very least the other Member States of the European Union). While this is a plausible argument prima facie, it seems to me rather incomplete, because it fails to consider the role that changes in national and political legal systems themselves might have played, and very particularly the British one, in shaping the “transnational” web, and indeed, in neoliberalizing international and supranational legal regimes. Britain is indeed an ideal case study of inversed causality for at least two reasons. Firstly, the very foundations of the neoliberal wave of the late 1970s and early 1980s were laid in London, particularly in the early 1960s, when the city was confronted with the end of its empire, and as a consequence with a challenge to its international financial role. As recent 60
studies have documented, under the aegis of the Bank of England, London transformed itself into an international financial centre. First was by means of the creation of the Eurobond market and a web of tax havens in British dominions. While the intellectual framework of neoliberalism might have been predominantly Austrian, its actual institutional hardware was very much Londonian. Second was the fact that Thatcher’s government took monumental internal decisions which shaped the international playing field. In 1979, it was the decisions to eliminate capital controls and accept huge unemployment levels (with massive redistributive implications; a move preceded by 61
Volcker’s tight monetary policies in the US). Such decisions, taken by the country that 59
Directive 2003/48/CEE of the Council, 3 of June of 2003, (2003) O.J. (L 157), at 38-­‐48. See also the bilateral agreements signed with third countries in (2004) O.J. (L 385), at. 28 and 50 (Switzerland), (2004) O.J. (L 359), at 32 (Andorra); 2004 O.J. (L 379), at 83 (Liechtenstein); (2004) O.J. (L 381), at 32 (San Marino); (2005) DOCE (L 19), at 53 (Monaco). 60
See among others, ROBERT SOLOMON, MONEY ON THE MOVE: THE REVOLUTION IN INTERNATIONAL FINANCE SINCE 1980 (1999); GARY BURN, THE RE-­‐EMERGENCE OF FINANCIAL MARKETS (2006); and NICOLAS SHAXSON, TREASURE ISLANDS (2011). 61
Resulting more from a deep ideological commitment than from a pragmatic assessment of how to render coherent economic policy (in particular, it was rather impossible to reconcile strict monetarism with the free movement of capital, especially with London rapidly establishing itself as the hotbed of international finance and with North Sea oil revenues exploding). 162 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
hosted the most prominent financial centre, created the conditions under which the effectiveness of capital controls in all other European countries were severely undermined, leaving them with the choice to either follow or perish. Third was the 1986 “big-­‐bang” in 62
the liberalization of financial services. Secondly, the very intergovernmental nature of the European Union and of its complex constitution implies that actual capacity to shape European policy presupposes access to national power. Indeed, it was the triumph of Margaret Thatcher in 1979 and the major socio-­‐economic change it effected in British politics that led to neoliberalism having a decisive influence on European policy formation. If that influence could be felt before Thatcher it was because neoliberalism had been influential even if not predominant in previous governments before she got into power. III. On What to Do As already indicated in section A, Nicol offers the reader a two-­‐pronged prescription: a defense of national competences in the short-­‐run, and the reform of the transnational legal web in the long run. While in general terms the conclusion is coherent with the arguments put forward in the book, and is at least as feasible as most of the proposals that are taken seriously in scholarly and political debates, it seems to me that one would be led to nuance both its short-­‐term and long-­‐term prescriptions, once taking into account the less simplistic assessment of the democratic credentials of the European Union which was put forward in the previous section. Firstly, it seems to me rather blunt to claim that “any effective counterbalance to the power of capitalists is embedded in national and subnational units” [162]. Sometimes the national and the regional levels of politics provide the best cover to fight the neoliberalizing trend that renders hollow democracy, as may have been clearly the case on what concerned the Multilateral Agreement on Investments (the MAI). The European 63
Commission played a key role in the concoction and peddling of the draft agreement. So 62
In addition to Britain, other Member States that would be worth studying would indeed be all those who have been at the forefront of the blocking minorities on tax harmonizing measures within the EU, especially Luxembourg, Belgium and Austria (which negotiated exceptions from the automatic exchange of information system enshrined in the 2003 directive on the taxation of savings income) and Ireland (which has fought hard to maintain its status as a tax haven for corporations). 63
See for example BELÉN BALANYÁ, ANN DOHERTY, OLIVIER HOEDEMAN, ADAM MA’ANIT & ERIK WESSELIUS, EUROPE INC. REGIONAL AND GLOBAL RESTRUCTURING AND THE RISE OF CORPORATE POWER 109-­‐122 (2003). See ‘A Level Playing Field for Direct Investment World-­‐Wide’ COM (95) 42 final (1995), available at: http://aei.pitt.edu/6195/1/003345_1.pdf (last accessed: 23 December 2011). This was indeed preceded by several speeches from Leon Brittan, then the commissioner in charge of commercial policy. See ‘Commission Launches Discussion Paper on Worldwide 2012] Nicols’ o f C
apitalism The Constitutional Protection 163 one could plausibly claim that the MAI would have ended in the Journal Officiel were it not 64
for the rearguard fight made at the regional and national levels. But other times the European level might prove to be the most effective level of government from which effective resistance against neoliberalism can be mounted, especially when the purpose is to defend national democracy through establishing bits and pieces of a more adequate transnational law. I have already mentioned the taxation of savings directive, and more references could be made to effective and proposed EU legislation on the general topic of fighting tax evasion, especially when effected through tax havens. While it is obvious that the European Court of Justice has acted as a neoliberalizing machine also in this regard, and while it is clear that the Commissioners in charge of the tax portfolio have not gone beyond symbolic action in the last two decades, it is also the case that some Member States (acting perhaps out of revenue concerns), personnel within the DG Taxation, and above all the European Parliament, could be effectively mobilized in favor of solutions fitting into Nicol’s general prescription. So perhaps Habermas may not have come up with clear empirical examples in support of his line of reasoning [as Nicol claims in 43], but such examples exist and can be provided, so there are good reasons to be (moderately) optimistic regarding the democratic potential for action at the European level. Although, I should add, again in the spirit of fairness, that the transformative potential of Union law has been drastically narrowed by the very problematic decisions taken since May 2010 to "deal" with the Eurozone crisis. E. Conclusion The Constitutional Protection of Capitalism deals with the most relevant and urgent 65
questions the citizens of a democratic state should be posing themselves. Many of these queries are indeed very old, if not classical. Nicol opens the book asking himself whether Investment Rules," IP/95/52, 19 January 1995, where we can read Brittan’s revealing words: “Investment is a desirable and desired thing . . . . Nonetheless, governments still sometimes find it threatening, because free direct investment limits administrations' ability to control and shape their countries' economic destiny. This is a small price to pay for allowing private sector decision-­‐makers to generate economic benefits worldwide. But it is a price that some governments in some sectors still find difficult to pay. That is a tragedy.” See also ‘Commission Calls on European Business to Intensify Worldwide Investment Efforts,’ IP/95/269, of 17 March 1995. 64
Still, one should note that the European Parliament, although rather powerless on the terms and contents of the negotiations, was widely critical of both the negotiation procedure and of the contents of the draft MAI. See ‘Resolution on the MAI,’ A4-­‐0073/98 of 11 March 1998, (1998) O.J. (C 104), at 143-­‐144. Indeed, the leakage of the MAI text may have come from Bruxelles, and the French MEP Catherine Lalumiere played a far from minor role in the decision of the French government to withdraw from MAI negotiations, which sealed the fate of the draft proposal. See the report of the commission she chaired, Rapport sur les négociations commerciales multilaterals, available at: http://www.minefe.gouv.fr/fonds_documentaire/pole_ecofin/international/rap_multilateral.htm (last accessed: 23 December 2011). 65
About what I would be tempted to label the economic constitution, was it not for the fact that the term is biased and prejudiced as to be best avoided. 164 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
“the [Constitution of the United Kingdom should] elevate a certain form of capitalism above politics?” [1]. Answering that question unavoidably triggers a whole range of concerns, ranging from the degree to which law should define, shape or frame the fundamentals of the economic structure of the society, to the proper status of the rights of corporations, and the relationship in which those rights should stand vis-­‐à-­‐vis individual fundamental rights and collective goods. No matter how well-­‐known and so many times answered, such questions should be asked again and again, not only because discussing 66
them is part and parcel of what democratic politics is about, but also because we have gravitated in the last three or four decades towards thinking that positive constitutional law is informed by the only possible answer to these questions, an answer which has increasingly come to be shaped by the (revived) myth of the self-­‐regulating market, behind which, as Nicol rightly points, lies the promotion of the economic interests of a select few at the expense of the many. Moreover, legal scholars and practitioners have additional reasons to pay close attention to Nicol’s agenda. We should indeed be candid about the shortcomings of positive law, legal dogmatics and legal theory in recent years, many of which facilitated or indeed actively contributed to the socio-­‐economic processes that led the world into the recession which started in 2007. As is the case with economists, both our self-­‐respect and the collective welfare of our societies depend to a larger extent on our willingness to trigger the day of our reckoning with our mistakes (accepting that without 67
some serious critical thinking, there can be neither atonement nor forgiveness). Nicol's book is a fundamental and inspiring volume that poses the right questions and comes further than any other this reviewer is aware of, in answering them. 66
“So as to ensure that the living are not ruled by the dead.” This is a motto with Painean connotations which Nicol rightly endorses in [155], and which we should keep in mind is at the core of the idea of the democratic constitution for both normative and historical reasons. 67
See Paul Krugman, The Return of Depression Economics, Lionel Robbins Lectures (2009), available at: http://cep.lse.ac.uk/_new/interviews/default.asp (last accessed: 23 December 2011). Developments Interview with Professor Dr. Christoph Möllers, Humboldt University, Berlin, Faculty of Law: On the Occasion of the 60th Anniversary of the German Federal Constitutional Court (“Bundesverfassungsgericht”) By Katja Gelinsky* [This interview, originally conducted by Katja Gelinsky, was first published in the Frankfurter Allgemeine Zeitung (FAZ) on 28 September 2011. The overarching theme is concerned with whether German Basic law has found its designation in the European integration process. This translation was made possible by Benedikt Reinke and Dr. Christoph Möllers. We are very grateful to Ms. Katja Gelinsky and the FAZ for allowing us to translate and publish the interview in the German Law Journal.] Do we still need the German federal constitutional court (BVerfG) at all? “Of course, we do,” argues Christoph Möllers, professor of German constitutional law and philosophy of law at the Humboldt-­‐University in Berlin. However, he is eager to see the BVerfG be influenced more with external non-­‐legal factors. As the BVerfG turns 60 and is being celebrated, Professor Christoph Möllers reviews the changing role of the BVerfG as part of a European legal and political community. FAZ: The BVerfG is celebrating its 60th anniversary. Usually, with this kind of age, symptoms of wear become visible, strength and vitality are fading. Are any such signs apparent with respect to the BVerfG? MÖLLERS: I cannot recognize symptoms of age. The Court is still extremely productive. But its context has changed. Germany is no more a young and fragile democracy. This may have altered, even diminished, the relevance of this court. FAZ: Does the BVerfG have to “accept its increasing trivialization” and to “learn how to prepare for its retirement,” as postulated by your colleague, Professor Christoph Schönberger? MÖLLERS: Well, I would not put it so drastically. But there is indeed, in some decisions, a somewhat awkward relation between the importance of the court and the way it represents itself. This is especially the case in judgments regarding the European 166 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
integration. The court becomes more self-­‐complacent in its rhetoric, though it is losing influence. FAZ: Would you agree with the statement that the BVerfG should have contained itself to a 1
greater extent in its latest judgment on the European rescue package? MÖLLERS: I read the decision on the European rescue package as a retreat from the court’s formerly quite sweeping claim to control the whole process of the European integration. The court refused to review the question of if the rescue of Greece was ultra vires with regard to the European treaties, though the plaintiffs had a strong case. FAZ: Do we still need the BVerfG at all? MÖLLERS: Of course, we do. The court remains the final arbiter of conflicts within the German political system. In addition to that, the court will be needed to keep our understanding of Basic Rights in Germany up to date, maybe even with some effects beyond this country. The importance of the court became clear after 9/11. There was an open debate about new intrusions into individual rights for the sake of security. The court rejected any change of paradigm and struck down many statutes. Today the powers of the executive in Germany are considerably more limited than they are in the UK, France or the US. FAZ: The ability of the BVerfG’s compass for providing certainty in direction is limited by the increasing power of the European Court of Justice (now: Court of Justice of the European Union – CJEU) in Luxemburg and the European Court of Human Rights (ECtHR) in Strasbourg. Does the BVerfG still have a final say, as it always postulates claims? MÖLLERS: Karlsruhe becomes a secondary institution. But this second row will remain a powerful place. Most rights cases will still have their origin in national law. And it might happen that the court is ready to fight for its interpretation of German basic rights against the European courts. * Author is a permanent contributor to the Frankfurter Allgemeine Zeitung (FAZ), available at: www.faz.net (last accessed: 23 December 2011). The original version of the interview is available at: http://www.faz.net/aktuell/feuilleton/sechzig-­‐jahre-­‐bundesverfassungsgericht-­‐das-­‐grundgesetz-­‐ist-­‐nicht-­‐fuer-­‐
die-­‐integration-­‐da-­‐11370751.html (last accessed: 23 December 2011). 1
The judgment of the German federal constitutional court (BVerfG) on the European rescue package: BVerfG, Case No. 2 BvR 987/10, Sept. 7, 2011. The judgment in German is available at: http://www.bundesverfassungsgericht.de/entscheidungen/rs20110907_2bvr098710.html (last accessed: 23 December 2011). A press release provided by the German federal constitutional court on that judgment is available in English at: http://www.bundesverfassungsgericht.de/en/press/bvg11-­‐055en.html (last accessed: 23 December 2011). 2012] M
öllers Interview with Dr. Christoph 167 FAZ: Could you elaborate the outlined scenario? MÖLLERS: There seems to emerge a void in the European protection of human rights. The ECJ/CJEU does not seem to be ready to apply rights against acts of the EU. The ECtHR is not always quite sensitive towards national, democratically legitimate peculiarities. FAZ: Could the BVerfG truly risk a conflict with the Court in Strasbourg, for example, by refusing to implement a judgment? The argument is made that such a rejecting stance of the BVerfG might lead to a weakening of European human rights protection, by encouraging other member states like Russia or Turkey to adopt a rejecting position regarding subsequent judgments requiring specific standards with respect to human rights protection. MÖLLERS: To be sure, neither the German court, nor the European courts have any interest in an open conflict. But especially the ECtHR seems quite vulnerable at the moment. There is critique not only from Russia, but also from Western countries like Germany and the UK. In such a political context, a self-­‐conscious constitutional court might prevail against an international institution. FAZ: Thus, should the BVerfG have ignored the ruling of the Strasbourg Court, which declared parts of Germany’s legal approach to preventive custody of potentially dangerous criminal offenders as a violation of human rights? MÖLLERS: No, in this case, it was wise for the German court to avoid any conflict. The court knew that there was a problem, and it had not made use of all procedural opportunities to correct a careless legislator. Therefore, the decision of the ECtHR opened a new chance for the German court to correct the political process, and its own jurisprudence. FAZ: One of the core responsibilities of the BVerfG is the provision of strong democratic structures in Germany. Can the BVerfG similarly be the guard keeper of the democratic structures regarding the European integration process? MÖLLERS: Different from the protection of human rights, it seems to me that the court is not able to cope with the role of a guardian of a European democracy to come. To my mind, the court underestimated in its jurisprudence the variety of democracies within Europe, and the openness of the concept of democracy itself. It is not possible to distill an ideal democracy out of the German (!) constitution and to present it as a normative blueprint for the European integration. And it is no accident that the court never dared to strike down one piece of European law. 168 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
FAZ: However, the BVerfG has empathically proclaimed its authority for drawing the limits of transferring sovereignty to the European Union. Is such a declaration merely a rhetorical or symbolic saber rattling on parts of the BVerfG? 2
3
MÖLLERS: I have that impression. For the big cases, Maastricht, Lisbon, it was virtually impossible for the court to stop the treaty amendment procedure. This would have endangered its own position within the German constitutional system. FAZ: Would you encourage the BVerfG to restrain itself? MÖLLERS: I think the court should be more explicit about its role and its limits. There are political constellations in which the court is simply not able to bear the political burden of a certain decision. The court is not able to stop the process of European integration. If the court were ready to articulate its own limits more open, this could also strengthen the persuasiveness of its legal reasoning. FAZ: Are you suggesting a need for more political arguments influencing the decisions of the BVerfG? MÖLLERS: The court should not politicize. This would obviously undermine its legitimacy. But it could, indeed, be more sensitive towards the peculiarities of the political process. This court applies a stricter scrutiny to the political process than all other constitutional courts I would know of. It requires rational arguments and a standard of systematic coherence from the political process. In other words, It applies administrative law doctrines to the democratic legislator. Of course, it sounds great to expect a “rational” and coherent legislator. But, on closer view, this it is an unfortunate idealization of the political process that always depends on compromise and openness to moods within the society. Democratic decision-­‐making cannot be, in that sense, be “rational.” We count votes because we don’t know or do not agree upon what is rational. FAZ: Consequently, would you prefer political candidates for the office of constitutional judges? MÖLLERS: Yes, I think so. There is no doubt that the professional judges and the many professors on the court make it an intellectually brilliant institution. But still, more politicians on the court knowing the other side of the story could be helpful. 2
3
Judgment of the BVerfG, Case No. 2 BvR 2134/92, Oct. 12, 1993. Judgment of the BVerfG, Case No. 2 BvE 2/08. Jun. 6, 2009. The German Law Journal published a special issue on the Lisbon judgment of the BVerfG. The full issue special issue (Vol. 10, No. 8) is available at: http://www.germanlawjournal.com/pdfs/FullIssues/Vol_10_No_08.pdf (last accessed: 23 December 2011). 2012] M
öllers Interview with Dr. Christoph 169 FAZ: This view is subject to controversial discussions. Particularly, members of the political class approached a potential nomination of the former state minister of Saarland, Mr. Peter Müller, rather skeptically. MÖLLERS: This kind of critique stems from a certain self-­‐hatred within the political class. And, politicians talk badly about politicians because they think this is popular. But it is not part of the logic of a constitutional court that politicians have to stay out. A specialized constitutional court is not just a normal high court, it is explicitly an actor within the political system. FAZ: The German constitutional judiciary has been seen as a role model for the composition of constitutional courts in several other jurisdictions. Will this international importance be gradually weakened by the growing importance of European courts? MÖLLERS: More important than the European courts is the relevance of the US Supreme Court for other national courts. If the Americanization of the world is slowing down, the German court may become a more important model for other courts. FAZ: Do we have to fear a loss of confidence in the BVerfG, established through a long history of constitutional cases, as a result of European integration and globalization? MÖLLERS: I do not see the threat of a loss. The idea of “constitutional patriotism” developed by Dolf Sternberger and Jürgen Habermas was an intellectual project. The court is quite popular, but there is still no constitutional folklore in Germany. Germans do not 4
pilgrim to Herrenchiemsee and Bonn, as Americans do to Philadelphia. And almost 5
nobody knows the names of our framers. FAZ: German basic law and the decisions of the BVerfG are said to be a catalyst (motor) initiating moral identity and integration. Is that an unjustified claim? MÖLLERS: The idea that constitutions “integrate” societies seems strange to me. Integration is the dissolution of differences. But modern constitutions protect differences. One might rather call the task of the Grundgesetz a benevolent disintegration, especially for the German society that tends to overrate consensus and homogeneity. 4
In 1948 the Herrenchiemsee conference was assembled in order to discuss and draft a first version of a constitution for occupied Germany. The results of this conference were later used by the parliamentary council in Bonn to particularize the constitution. On May 8, 1949 the parliamentary council voted on and passed the German constitution (Grundgesetz), which was proclaimed on May 23, 1949. 5
The following representatives of the German Länder were the leading members of the Herrenchiemsee conference: Anton Pfeiffer (Chair), Paul Zürcher, Josef Schwalber, Theodor Spitta, Wilhelm Drexelius, Hermann Louis Brill, Justus Danckwerts, Theodor Kordt, Adolf Süsterhenn, Fritz Baade, Josef Beyerle, Carlo Schmid and Otto Suhr. Additionally, the listed members were supported by advising staff and legal experts. 170 G e r m a n L a w J o u r n a l [Vol. 13 No. 01
FAZ: How and in which legal areas has the BVerfG still authority to render significant decisions in order to prevent itself from becoming a mere audience to its own judgments? MÖLLERS: A new challenge for the court could be to develop more openness and flexibility with regard to its own legal reasoning. Sometimes, the judgments seem quite self-­‐
referential. The court tends to cling to its own jurisprudence. It could be more sensitive toward the external factors of a given case, more irritated by its own old solutions, to evolve the case law. But this is obviously something easier to recommend from outside than to be done from within the court.