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Common principles for a
plurality of orders:
A study on public authority in
the European legal area
Armin von Bogdandy*
Public law was once exclusive to the type of social organization called state. This exclusivity
is no more, particularly in the European legal area: supranational and international organizations wield competences that transform them into institutions of public authority. Due to
Europeanization and internationalization, the public law applicable on an EU member’s territory can no longer be understood through the domestic constitution alone, but flows from
a multiplicity of sources fed by a multitude of actors: A new public law tout court is under
construction. The present article contributes to this by a study of founding principles. It offers its
understanding of this new field of research (Section 1), sketches the relevant principles (Section
2), and discusses their interrelationship (Section 3).
1. The contemporary field of research regarding basic
principles
1.1. Emergence of a new public law
Not long ago, the basic structure of public law and authority in most countries was
defined by the principles of their respective constitutions. Nowadays, supranational
and international institutions markedly impinge on everyday life in many societies,
in particular in those that form part of the European legal area.1 In addition, there is
* Director, Max Planck Institute for Comparative Public Law and International Law (MPIL), Heidelberg,
Professor of Law at the Goethe University, Frankfurt. Email: [email protected]. I would like to thank
Christoph Krenn, Michael Ioannidis, Frauke Sauerwein and Dana Schmalz for their valuable help in
completing this contribution. Translated by Marc Jacob and Blake Emerson. A first German version was
published in 11 Handbuch des Staatsrechts (Josef Isensee & Paul Kirchhof eds., 3d ed. 2013). This text is
part of a research project on international public authority, available at http://www.mpil.de/ww/de/pub/
forschung/forschung_im_detail/projekte/voelkerrecht/ipa.cfm. 1
However, similar developments can be seen beyond the “global North”: see José María Serna de la Garza,
Impacto e implicaciones de la globalización en el sistema jurídico mexicano 111–311 (2012).
I•CON (2014), Vol. 12 No. 4, 980–1007doi:10.1093/icon/mou066
Common principles for a plurality of orders
981
a new openness towards sovereign acts of other states. These developments raise the
question of how the basic structures of public law are to be understood.
These basic structures, in the sense of basic principles that form the entirety of
effective public authority in Germany, are the topic of this article. Why this particular
German focus? This is in part due to the origin of this piece, which was written for a
German audience.2 However, there is also a deeper rationale. The complexity of the
issue suggests that it be addressed from a specific location and perspective, as the issue
might appear differently from another place. The world looks different from Beijing,
Cairo, or Quito, but also, within the European legal area, from Coimbra, Heidelberg,
or Oxford, not least because different constitutions apply. Therefore, this article does
not make categorical truth claims, nor does it consider alternative constructions to
be false. Given the political, cultural, and ideological diversity, any contribution that
purports to be universal should be viewed with suspicion. Nevertheless, this article
claims to be scientific because of its internal coherence, the circumspection in which
the legal material is presented, and the analytical potential of the concepts it offers for
the understanding and the development of public law.
What is to be expected? Little. The contribution cannot, given the current state of
understanding, offer a detailed and assured account of the pertinent law. A systematic, instructive and above all principled doctrine of the law of humanity,3 cosmopolitan law,4 global law,5 universal law,6 universal internal law,7 transnational law,8
even public international law,9 or public law in the European legal area,10 i.e., something roughly comparable to a public law doctrine as we know it from many countries,
To have such a piece in the state-centered 1–12 Handbuch des Staatsrechts (Josef Isensee & Paul Kirchhof
eds., 3d ed. 2003–2014) gave rise to an article in the Frankfurter Allgemeine Zeitung: see Max Steinbeis,
Man kann nicht dauernd die halbe Welt für verfassungswidrig erklären, Frankfurter Allgemeine Zeitung,
Frankfurt am Main (May 7, 2013), at 25. The article provides an excellent idea of the essence of traditional Staatsrecht. 3
Clarence Wilfred Jenks, The Common Law of Mankind (1958); 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 88 (2001) [1999] (“constitution of humankind”).
4
Seyla Benhabib, The Philosophical Foundations of Cosmopolitan Norms, in Another Cosmopolitanism: Berkeley
Tanner Lectures 2004, at 13 (Seyla Benhabib & Robert Post eds., 2006); Hauke Brunkhorst, Solidarität:
Von der Bürgerfreundschaft zur globalen Rechtsgenossenschaft 171 (2002); Immanuel Kant, Perpetual Peace:
A Philosophical Proposal 29 et seq. (Jessie H. Buckland trans., Sweet & Maxwell, 1927) [1795/1796].
5
Rafael Domingo, The New Global Law (2010); Sabino Cassese, The Globalization of Law, 37 N.Y.U. J. Int’l L. &
Pol’y 973 (2005).
6
Mireille Delmas-Marty, Trois défis pour un droit mondial (1998); Angelika Emmerich-Fritsche, Vom Völkerrecht
zum Weltrecht (2007); Udo Di Fabio, Verfassungsstaat und Weltrecht, 39 Rechtstheorie 399 (2008).
7
Jost Delbrück, Perspektiven für ein “Weltinnenrecht”? Rechtsentwicklungen in einem sich wandelnden internationalen System, in Gedächtnisschrift Für Jürgen Sonnenschein 793 (Joachim Jickeli, Peter Kreutz & Dieter Reuter
eds., 2003); Jürgen Habermas, Der gespaltene Westen: Kleine politische Schriften 143, 159 et seq. (2004).
8
Philip C. Jessup, Transnational Law (1956); Peer Zumbansen, Transnational Law, in Elgar Encyclopedia of
Comparative Law 738 (Jan M. Smits ed., 2006).
9
Now, monumentally in ten volumes: 1–10 The Max Planck Encyclopedia of Public International Law
(Rüdiger Wolfrum ed., 2012), available at http://www.mpepil.com (hereinafter MPEPIL), but encyclopedic
and sprawling over 11,724 pages with 1,618 entries and more than 800 authors—hardly “systematic.” 10
Stimuli in this direction come from the Societas Iuris Publici Europaei (SIPE) or the European Public
Law Association. On the constitutional-historical roots, see Die Verfassungen in Europa 1789–1949 (Dieter
Gosewinkel & Johannes Masing eds., 2006).
2
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I•CON 12 (2014), 980–1007
seems beyond what is possible, at least at the current state of play. We are at a new
beginning, well shown by the terminological cacophony mentioned above.
To be sure, this is not due to insufficient scientific interest. With respect to Germany,
scholars of German public law (Staatsrecht) have always been concerned about
embedding Germany within a larger context.11 The theme is very much en vogue since
the turn of the century and excellent studies have been published.12 It seems fair to say
that the principles of human rights and the rule of law, even of democracy, are now
recognized among most scholars from most places, at least in the European legal area,
as somehow relevant to all forms of the exercise of public authority.13 Yet, this is only a
starting point. There is no doctrine, i.e., no systematic body of thought meant, and fit,
to guide practice, that unfolds these principles and instructs the practice of law, and
for good reason: It is too soon, not least given the effects of these constructions on the
constitution of reality.14 It will take much time and effort to flesh out the “somehow.”
Against this backdrop, the present contribution offers its understanding of this new field
of research (Section 1), grounds the relevant principles in positive law and sketches their
purported application (Section 2), and discusses their interrelationship in order to shed
some light on the entire constellation (Section 3). The analysis relies on certain assumptions
grounded in earlier studies on the new public law.15 These are, in brief, outlined as follows.
As a result of the Europeanization and internationalization of Germany, the public
law applicable in the German territory can no longer be understood merely by way
of a national public law (Staatsrecht)16 evolving from the Basic Law, i.e., the German
Constitution, but has to take into account EU law, public international law, and
Recall only the many pertinent events of the Vereinigung der deutschen Staatsrechtslehrer (the
Association of German Constitutional Law Professors) and the contributions in the Handbuch des
Staatsrechts, supra note 2. 12
Three excellent examples from recent Ph.D. theses: Heiko Sauer, Jurisdiktionskonflikte in Mehrebenensystemen
(2008); Mehrdad Payandeh, Internationales Gemeinschaftsrecht (2010); Thomas Kleinlein,
Konstitutionalisierung im Völkerrecht (2012).
13
This was rather different only twenty years ago. See Albrecht Randelzhofer, Zum behaupteten
Demokratiedefizit der Europäischen Gemeinschaft, in Der Staatenverbund der Europäischen Union 39, 40
(Peter Hommelhoff & Paul Kirchhof eds., 1994). Outside Europe, things may be different: on the role
of the Shahri’ah in the constitutional law of Islamic states, see Abou El Fadl, The Centrality of Shari’ah to
Government and Constitutionalism in Islam, in Constitutionalism in Islamic Countries: Between Upheaval and
Continuity 35 (Rainer Grote & Tilmann Röder eds., 2012).
14
“[I]st erst das Reich der Vorstellungen revolutioniert, so hält die Wirklichkeit nicht aus” [If the realm
of ideas is revolutionized, the reality will not stand it]: Georg W.F. Hegel, Brief an Niethammer vom
28.10.1808, in 1 Briefe von und an Hegel 251, 253 (Johannes Hoffmeister ed., 1952); Jean L. Cohen,
Constitutionalism Beyond the State: Myth or Necessity? (A Pluralist Approach), 2 Humanity 127, 128 (2011).
15
Armin von Bogdandy, Zweierlei Verfassungsrecht. Europäisierung als Gefährdung des gesellschaftlichen
Grundkonsenses?, 39 Der Staat 163 (2000); Armin von Bogdandy, Founding Principles, in Principles of
European Constitutional Law 11 (Armin von Bogdandy & Jürgen Bast eds., 2d ed. Hart 2010); Armin
von Bogdandy, General Principles of International Public Authority, 9 German L.J. 1909 (2008); Armin
von Bogdandy, Pluralism, Direct Effect, and the Ultimate Say: On the Relationship between International and
Domestic Constitutional Law, 6 Int’l J. Const. L.397 (2008).
16
The concept Staatsrecht (law of the state) states well this presumed necessary link. On the ideology
behind the concept and the pertinent debates, see Christoph Möllers, Der vemisste Leviathan 15–17, 53–56
(2008). Germany is not the only one to use this terminology: see the identical Dutch concept Staatsrecht
or the Swedish statsrätt.
11
Common principles for a plurality of orders
983
comparative legal insights, especially from other EU Members.17 In other words, public
law is to be reconceived as public law tout court, fed from international, supranational,
and domestic sources and institutions. This modifies the scope of application of the
fundamental principles of the Basic Law and affects their importance. The interpretation and development of these principles is to be embedded in a supranational, international, and comparative dimension.
The German, supranational, and international institutions are not to be seen as
organs of an all-comprising joint (con)federation, as are the federation and the individual states in Canada, Germany, or the United States of America.18 Nevertheless,
the powers vested in the national, supranational and international authorities are
so closely interlinked on account of the Europeanization and internationalization of
Germany, that the legitimization of the exercise of public authority in Germany can
only be ascertained in this broader context. Problems of legitimacy of one authority,
endowed with public authority, negatively affect the decisions of other authorities.
Fidelity to principles becomes a matter of common interest.
The benchmark for such legitimacy is a stock of common basic principles, at least
for those supranational and international institutions that touch upon everyday social
life. Particularly relevant among these are principles such as human rights, the rule
of law, and democracy, not only with regard to doctrinal constructions, but also with
respect to legitimacy. These shared fundamental principles are, however, not identical,
but are best understood as belonging to different legal orders, which in turn can lead
to different nuances of meaning between similarly sounding principles. These principles thus are, on the one hand, reference points for overarching discourses on legal
doctrine and legitimacy, but on the other hand, can also justify why the institutions of
a particular legal order resist the claim to validity of an act of a different legal order.
Principles are of immense importance to the interaction of different legal orders.
1.2. The exercise of public authority as a research topic
(a) The transformation of the principle of sovereignty
The starting point of this contribution is an account of transformation. While German
public law (Staatsrecht), especially by means of the principles of the Basic Law, covered the essential core of public law in Germany through the 1990s,19 supranational
and international institutions, rooted in other legal orders, now impact notably and
Armin von Bogdandy, National Legal Scholarship in the European Legal Area: A Manifesto, 10 Int’l J. Const.
L.614 (2010).
18
Just very few scholars argue that a European or world state is emerging, but see Mathias Albert, Einleitung:
Weltstaat und Weltstaatlichkeit: Neubestimmungen des Politischen in der Weltgesellschaft, in Weltstaat und
Weltstaatlichkeit: Beobachtungen globaler politischer Strukturbildung 9 (Mathias Albert & Rudolf Stichweh
eds., 2007).
19
Josef Isensee & Paul Kirchhof, Vorwort zur ersten Auflage, in 1 Handbuch des Staatsrechts, at ix (Josef Isensee
& Paul Kirchhof eds., 3d ed. 2003); 1 Klaus Stern, Das Staatsrecht der Bundesrepublik Deutschland 551, 705
(1984); the constitutional law foothold is the homogeneity clause of the Grundgesetz for die Bundesrepublik
Deutschland [Grundgesetz] [GG] [Basic Law], May 23, 1949, BGBl I (Ger.), art. 28(1) (hereinafter Basic
Law).
17
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formatively on social interaction in Germany. The domestic constitutional principles
do not affect the making of regulations in the European Union, the sanction mechanisms of the UN Security Council, or the adjudication of the European Court of
Human Rights (ECtHR) in the same way as they guide the exercise of public authority through German institutions. The principle of sovereignty presents a key to better
comprehension of this transformation of public law foundations.
The received understanding of state and international orders, domestic (national,
state) public law, and public international law—in short, the whole constellation in
question here—can be developed from the principle of sovereignty, both in a doctrinal and legitimating sense. According to Georg Jellinek, in 1882 everything could be
explained “through sovereignty and from sovereignty.”20 Sovereignty allowed for a
remarkably clear and coherent construction that certainly provides a benchmark for
new basic conceptualizations. Despite all the problems that abstract conceptualizations are wont to engender, the classic principle of sovereignty had colossal analytical and normative force. Sovereignty, understood in the sense of Staatsrecht, grounds
the validity of all law in the will of the state (Staatswillen) and defines the superior
authority of the state, assumed to be the unity of all actions of a plethora of diverse
institutions, vis-à-vis all other spheres of society.21 Sovereignty, conceived as popular
sovereignty, justifies such authority and law as a crystallization of the democratic
principle.22 Outbound, state sovereignty appears as a “suit of armor” that protects the
predefined constellation23 and anchors the validity of public international law, same
as Staatsrecht, in the will of the state. Briefly put, according to the principle of sovereignty, the state and its legal order form a normative universe.
This principle of sovereignty coined the configuration of domestic public law
(Staatsrecht) just as it did that of public international law, but in diametrically opposed
directions: Staatsrecht has an unmistakably commandeering structure, whereas public international law a manifestly cooperative structure. Because of this conceptual
background, legal bases in positive law for common principles of domestic public
law and international public law, for example article 38(1)(c) of the Statute of the
International Court of Justice (ICJ), article 25 of the German Basic Law, article 10
of the Italian Constitution, article 29 of the Irish Constitution, or article 153 of the
Slovenian Constitution, have given rise to few such principles beyond sovereignty.
The commonly recognized principles of law, in the sense of article 38(1)(c) of the ICJ
Statute, are rooted above all in private law constructs: think only of pacta sunt servanda, bona fides, and the obligation to make reparations.24 Even human rights are very
Georg Jellinek, Die Lehre von den Staatenverbindungen 16 et seq., 36 (Walter Pauly ed., introd., 1996) [1882];
on Jellinek’s work in detail, see Pauly in id. at vii et seq.
21
Albrecht Randelzhofer, Staatsgewalt und Souveränität, in 2 Handbuch des Staatsrechts 143, § 17 ¶¶ 25 et
seq., 35 et seq. (Josef Isensee & Paul Kirchhof eds., 3d ed. 2004).
22
Hermann Heller, Die Souveränität: Ein Beitrag zur Theorie des Staats- und Völkerrechts 70 et seq. (1927);
Uwe Volkmann, Setzt Demokratie den Staat voraus?, 127 Archiv des öffentlichen Rechts 575, 577 and 582
(2002).
23
On this concept, see Albert Bleckmann, Begriff und Kriterien der innerstaatlichen Anwendbarkeit völkerrechtlicher Verträge 166 (1970).
24
Classic: Hersch Lauterpacht, Private Law Sources and Analogies of International Law (1927).
20
Common principles for a plurality of orders
985
difficult to fit into this.25 But it is not only between the national and international legal
orders that shared principles are lacking: The traditional principle of sovereignty permits vastly dissimilar conceptions of order between states, ergo, radical pluralism.
Undeniably, the classic principle of sovereignty finds less pronounced support
within the Basic Law as in several other constitutional legal orders.26 It has, moreover, always been a matter of contention whether sovereignty can at all be understood as outlined here.27 The detractors can point to the Basic Law, which, unlike
other constitutions,28 does not cast this concept strictly in positive terms but displays a remarkable degree of openness in its preamble and articles 23 to 26, comparatively speaking.29 But be that as it may, German Staatslehre and the associated
doctrine have largely operated within the internal logic of the principle of sovereignty: Rainer Wahl has keenly depicted how the constitutionalization of the
legal order was the great normative project of the first forty years of the Federal
Republic of Germany.30 The predominant understanding of the general rules of
public international law under article 25 of the Basic Law,31 the rather marginal
attention paid for a long time to ECtHR judgments,32 or the peripheral importance
of comparative law to the adjudication of the highest courts33 all point in that
same direction. In the Lisbon decision of 2009, the principle of sovereignty was
even endowed with a new quality giving rise to immediate legal consequences.34
At the same time, the judgment shows the transformation of the principle. It
Hermann Mosler, General Principles of Law, in 2 Encyclopedia of Public International Law 511, 518 et seq.
(Rudolf Bernhardt (ed), 1995) with a cautious opening to human rights law.
26
Think only of the fundamental importance of the concept of parliamentary supremacy in the United
Kingdom. 27
Foundational Hugo Preuß, Selbstverwaltung, Gemeinde, Staat, Souveränität, in Festschrift für Paul Laband
199, 233 et seq. (1908); for a detailed account, see Christoph Möllers, Staat als Argument 291 et seq. (2d
ed. 2011).
28
Cf. 1958 Const. arts. 3 and 4 (Fr.); 1997 Const. art. 126 (Pol.); 1992 Const. (Czech); Constituzione (Const.)
art 11(It.).
29
For a seminal work, see Klaus Vogel, Die Verfassungsentscheidung des Grundgesetzes für eine internationale
Zusammenarbeit (1964).
30
Rainer Wahl, Herausforderungen und Antworten: Das Öffentliche Recht der letzten fünf Jahrzehnte 26 et seq.
(2006).
31
Christian Koenig, Art. 25, in 2 Grundgesetz ¶¶ 32 et seq. (Hermann von Mangoldt, Friedrich Klein, &
Christian Stark (eds), 6th ed. 2010); Matthias Herdegen, Art. 25, in 4 Grundgesetz Kommentar ¶¶ 36 et
seq. (Theodor Maunz & Günter Dürig (eds), Aug. 2000). In a comparative perspective, see Stephan Hobe,
Art. 25, in 2 Berliner Kommentar zum Grundgesetz ¶¶ 37 et seq. (Karl H. Friauf & Wolfram Höfling eds., Dec.
2011).
32
Jochen Abr Frowein, Kritische Bemerkungen zur Lage des deutschen Staatsrechts aus rechtsvergleichender
Sicht, 19 Die Öffentliche Verwaltung 806, 809 et seq. (1998).
33
Heiko Sauer, Verfassungsvergleichung durch das Bundesverfassungsgericht, 18 Journal für Rechtspolitik 194
(2010). 34
Bundesverfassungsgericht, Case 2 BvE 2/08, 2 BvE 5/08, 2 BvR 1010/08, 2 BvR 1022/08, 2 BvR
1259/08, 2 BvR 182/09, Decision of June 30, 2009 (Treaty of Lisbon); Frank Schorkopf, The European
Union as an Association of Sovereign States: Karlsruhe’s Ruling on the Treaty of Lisbon, 10 German L.J. 1219,
1223 et seq. (2009); Matthias Kottmann & Christian Wohlfahrt, Der gespaltene Wächter? Demokratie,
Verfassungsidentität und Integrationsverantwortung im Lissabon-Urteil, 69 Zeitschrift für ausländisches
öffentliches Recht und Völkerrecht 443, 460 et seq. (2009).
25
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I•CON 12 (2014), 980–1007
protects only the most essential part in that which is the most essential, only
that which is absolutely inalienable, i.e., that which, under no circumstances,
can be transferred to a non-German authority; however, it no longer constitutes
the foundation of the entire doctrinal or legitimating construct, but serves other
principles. Whereas the traditional concept of sovereignty, as expressed by Georg
Jellinek, provided a founding concept, a point of closure where legal thinking
could stop, today it serves some higher principle, such as self-determination
or human rights. It is being reduced to a functional concept; it is ever less a
founding one.
(b) Public authority of supranational and international institutions
Nevertheless, the principle of sovereignty continues to be important for public
law, international law, and theories of legitimacy.35 Because of a series of developments, however, it is no longer the key to the basic structure of public law.36 The
Europeanization and internationalization of everyday life (i.e., of the Lebenswelten)
undermine the famous premise of the classic principle of sovereignty, according
to which states are “independent communities.”37 To use a graphic image of Eyal
Benvenisti’s: the old sovereignty is akin to ownership of a freestanding villa on a
vast estate, whereas the new sovereignty resembles ownership of a high-rise with
200 different owners.
This is the framework for the phenomenon that is immediately relevant here: supranational and international organizations affect social interaction in Germany to such
an extent, and with such autonomy, that the three-faced sovereignty cannot shoulder the entire construct, be it from a doctrinal or legitimating vantage point.38 To the
contrary, the actual clout of such institutions makes their classification as individual
public authorities appear more feasible. Put differently, the exercise of public authority is the foundational structural characteristic that state institutions nowadays share
with supranational and international institutions.
This qualification is an essential step on the road to common principles for national,
supranational, and international institutions, given that common principles only
make sense where there is reasonable comparability. It allows this step without
Cf. only Dieter Grimm, Souveränität: Herkunft und Zukunft eines Schlüsselbegriffs (2009); Ulrich Haltern,
Was bedeutet Souveränität? (2007); Ingeborg Maus, Über Volkssouveränität: Elemente einer Demokratietheorie
(2011).
36
The internal metamorphosis of the state concept is not dealt with here. On this, see Jean-Bernard Auby,
Die Transformation der Verwaltung und des Verwaltungsrechts, in 3 Handbuch Ius Publicum Europaeum 577,
§ 56 (Armin von Bogdandy, Sabino Cassese & Peter M Huber eds., 2010). Note: It is not argued that
the sovereignty principle no longer has a role to play. That would be untenable. See only Jurisdictional
Immunities of the State (Ger. v. It.: Greece Intervening), Judgment, ¶ 57 (Feb. 3, 2012), available at http://
www.icj-cij.org/docket/files/143/16883.pdf.
37
A classic exposition is SS Lotus, Fr. v. Turk., 1927 p.C.I.J. Rep (ser. A) No. 10, at 18 (Sept. 27, 1927).
38
From the rich literature, see Thomas Vesting, Die Staatsrechtslehre und die Veränderung ihres Gegenstandes,
63 Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 41 (2004).
35
Common principles for a plurality of orders
987
problematic notions such as global constitutionalism39 or global administrative law.40
All the same, concepts such as “supranational public authority” and even more so
“international public authority” are by no means self-evident, but instead require
considerable conceptual innovation.41
The traditional understanding of public authority rests on the concept of state
authority, which in turn characterizes the state’s monopoly of force and sovereign
territorial authority. Since neither supranational nor international authorities are
endowed with this, authority has to be defined more broadly,42 should one hope to
bring such institutions within the scope of application of the principles considered by
the Basic Law to inform the structures of public authority. It is submitted that public authority should hence be understood as a legally grounded capacity to actually,
or legally, restrict the freedom of other actors or otherwise determine how they use
their freedom.43 This can happen, first, by way of obligatory legal acts. An act is legally
obligatory when it modifies the legal situation of a subject of law, in particular when
an action, which runs contrary to that legal situation, is illegal.44 In light of the modus
operandi of many international institutions, the concept of public authority should,
however, extend beyond legal obligations. Notable effects are also occasioned by international courts and their case law; although there is no doctrine of stare decisis in public international law, over the last twenty years, many international courts have played
an important role in the development of international law, especially regarding intrastate matters such as human rights, criminal law, commercial law, or environmental
This does not detract from the accomplishments of that approach; see especially Jan Klabbers, Anne Peters,
& Geir Ulfstein, The Constitutionalization of International Law (2009); on the principles, see Kleinlein, supra
note 12; on the problems Jan Klabbers, Constitutionalism Lite, 1 Int’l Org. L. Rev. 31 (2004); Joseph H.H.
Weiler, Dialogical Epilogue, in The Worlds of European Constitutionalism 262 (Gráinne de Búrca and Joseph
HH Weiler (eds), 2011).
40
Benedict Kingsbury, Nico Krisch, & Richard Stewart, The Emergence of Global Administrative
Law, 2 Law & Contemp. Prob. 15 (2005); Eberhard Schmidt-Aßmann, Die Herausforderung der
Verwaltungsrechtswissenschaft durch die Internationalisierung der Verwaltungsbeziehungen, 45 Der Staat 315
(2006); on these problems, see Armin von Bogdandy, Prolegomena zu Prinzipien internationalisierter und
internationaler Verwaltung, in Allgemeines Verwaltungsrecht: Zur Tragfähigkeit eines Konzepts 683 (HansHeinrich Trute et al. eds., 2008) 683. 41
In more detail, see Armin von Bogdandy, Philipp Dann, & Matthias Goldmann, Völkerrecht als öffentliches
Recht: Konturen eines rechtlichen Rahmens für Global Governance, 49 Der Staat 23, 30 et seq. (2010); cf.
also Michael Zürn, Martin Binder, & Matthias Ecker-Ehrhardt, International Authority and Its Politicization,
4 Int’l Theory 69 (2014); for an excellent review of the various approaches, see Birgit Peters & Johan
Schaffer, The Turn to Authority Beyond States, 4(3) Transnat’l Legal Theory 315 (2013). 42
“Definition” is understood here as the development of sufficient conceptual elements that can accommodate the most important constellation. This is not an attempt at a totalizing definition. See Hans-Joachim
Koch & Helmut Rüssmann, Juristische Begründungslehre 75 (1982). 43
Similarly, see Michael Barnett & Raymond Duvall, Power in Global Governance, in Power in Global
Governance 1, 8 (Michael Barnett & Raymond Duvall eds., 2005); the traditional approach is narrower,
see e.g., Christoph Möllers, Gewaltengliederung: Legitimation und Dogmatik im nationalen und internationalen
Rechtsvergleich 81 et seq. (2005).
44
An example of such legal determination is a decision regarding refugee status by the United Nations
High Commissioner for Refugees (UNHCR): see Maja Smrkolj, International Institutions and Individualized
Decision-Making: An Example of UNHCR’s Refuge Status Determination, 9 German L.J. 1779 (2008).
39
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law.45 The same applies to non-legally binding acts of international institutions: they
too can limit the freedom of other legal subjects or otherwise determine how it is used.
This happens whenever there is pressure generated that can be withstood by other
subjects only with a degree of difficulty.46 Such an exercise of international public
authority occurs regularly through the setting of nonbinding standards, which have
to be followed, inter alia, because the advantages of compliance outweigh the costs
of noncompliance (e.g., as with the Organisation for Economic Cooperation and
Development (OECD) Guidelines on double taxation) or because they have implementation mechanisms whereby positive or negative sanctions can be imposed (e.g., as
in the case of the UN Food and Agriculture Organization (FAO) Code of Conduct for
Responsible Fisheries).47 In addition, legal subjects can be conditioned via acts that
do not have any kind of deontic quality (e.g., the statistical Data of the Programme
for International Student Assessment (PISA) reports) but which engender communicative power that the addressee can only avoid at a certain price, be it through a
loss of reputation or by financial means. This expansion of the concept of authority
can, above all, be grounded in theories of communicative action.48 Nevertheless, such
an act must exceed a certain threshold. That will be the case especially where an act
is connected to a specific mechanism that effectively demands consideration from its
addressee. There are many of these mechanisms: international organizations have
proved to be remarkably inventive in this respect.49
This broad concept of authority rests on the empirical insight that, nowadays,
many acts of supranational and international institutions can in the end effectively
curtail personal freedom and collective self-determination in the same way as legally
binding acts of state organs. The legal obligation to comply with a binding act of
a supranational or international institution can be derived from the Basic Law’s
provision of legality;50 it is, however, also frequently flanked by external sanctioning mechanisms. The legal freedom not to follow a merely conditioning act is often
On the problems concerning lawmaking by international courts, see contributions in Armin von
Bogdandy & Ingo Venzke (eds), Special Issue: Beyond Dispute: International Judicial Institutions as
Lawmakers, 12(5) German L.J. 979–1369 (2011). The specific problems concerning the exercise of public
authority by international courts will not be discussed in this contribution.
46
Most illuminating is the discussion concerning the law of the Catholic Church in the sixteenth century: Thomas Duve, Katholisches Kirchenrecht und Moraltheologie im 16. Jahrhundert: Eine globale normative Ordnung im Schatten schwacher Staatlichkeit, in Recht ohne Staat? Zur Normativität nichtstaatlicher
Rechtsetzung 147, 159–166 (Stefan Kadelbach & Klaus Günther eds., 2011). 47
Ekkehart Reimer, Transnationales Steuerrecht, in Internationales Verwaltungsrecht 181, 187, 207
(Christoph Möllers, Andreas Voßkuhle, & Christian Walter eds., 2007); Jürgen Friedrich, Legal Challenges
of Nonbinding Instruments: The Case of the FAO Code of Conduct for Responsible Fisheries, 9 German L.J. 1539,
1551 et seq. (2008).
48
Matthias Goldmann, Internationale öffentliche Gewalt, Pt. 2(B) (2013) (Unpublished Ph.D. thesis,
University of Heidelberg); Ingo Venzke, How Interpretation Makes International Law (2012). 49
For examples, see The Exercise of Public Authority by International Institutions. Advancing International
Institutional Law (Armin von Bogdandy et al. eds., 2010).
50
See Bundesverfassungsgericht (BVerfG) [Federal Constitutional Court], BVerfGE 111, 307 (‘Görgülü’
decision, on the jurisdiction of the ECtHR) and BVerfGE 22, 293 (concerning the law of the then EEC).
45
Common principles for a plurality of orders
989
a mere fiction.51 There is also a principled consideration buttressing this broad conceptualization of authority. Whenever public law is considered, in line with its liberal and democratic tradition, as an order securing personal freedom and enabling
collective self-determination, every act that affects these values, no matter whether
binding or nonbinding, must be considered within this definition, insofar as its effects
are important enough to give rise to reasonable doubts as to its legitimacy. It is to be
stressed that qualifying an act as an exercise of public authority does not imply its
legitimacy. Unlike authors such as Joseph Raz or Myres McDougal, I distinguish the
two concepts.52
It should be noted that this conceptual broadening, as a definition, is of course not
indisputable. There remains a possibility of explaining the phenomena from the point
of view of the traditional principle of sovereignty, of putting the will of the state center
stage, and of conceiving public authority solely as national authority. The idea of the
state imposing the application of supranational and international acts is central to
this. Any corresponding doctrine, however, neglects the extent to which other legal
orders impact on social interaction in Germany and runs the risk of being blind and
deaf to such weighty phenomena.
Of concern to freedom, in particular in light of this wide concept of authority,
are also the acts of private entities. Consider only classifications by rating agencies,
decisions by big corporations on their structure and location, or parents’ decisions
regarding their children. When is the exercise of authority a phenomenon of public
authority? Supranational and international public authority is any authority that
rests on a competence which was itself afforded by a joint action of public actors—
usually states—in order to fulfill a public function that was permissibly defined as such
by those actors.53 The public nature of the exercise of “authority” thus depends on
the legal basis. Hence the institutions analyzed exercise public authority that has been
granted to them by political communities on the basis of legal acts (be they binding or
nonbinding). The fundamental concept here is action (Handeln), which, from a legal
point of view, is to be understood as an expression of individual freedom and, therefore, does not demand further justification.54
Barnett & Duvall, supra note 43; Kenneth W. Abbott & Duncan Snidal, Hard and Soft Law in International
Governance, 54 Int’l Org. 421 (200); Charles Lipson, Why Are Some International Agreements Informal?, 45
Int’l Org. 495 (1991).
52
Joseph Raz, The Authority of Law 28 et seq. (1979); Myres McDougal & Harold Laswell, The Identification
and Appraisal of Diverse Systems of Public Order, 53 Am. J. Int’l L. 1, 9 (1959); for a detailed discussion, see
Goldmann, supra note 48, and Venzke, supra note 48.
53
Some center on the fulfillment of public function. See Matthias Ruffert, Perspektiven des Internationalen
Verwaltungsrechts, in Internationales Verwaltungsrecht, supra note 47, 395, at 402.
54
This does not rule out obliging private actors, in particular multinational corporations, to abide by
human rights standard. See Basic Law, art. 9(3). Concerning broader approaches on the global level see
only the OECD Guidelines for Multinational Enterprises (2011) and the UN Guiding Principles on Business
and Human Rights. See UNHCR, Report of the Special Representative of the Secretary-General on the Issue of
Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie. Guiding Principles
on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework,
UN Doc. A/HRC/17/31 (Mar. 21, 2011); John Gerard Ruggie, Business and Human Rights: The Evolving
International Agenda, 101 Am. J. Int’l L. 819 (2007).
51
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I•CON 12 (2014), 980–1007
This definition of public authority combines many insights of legal scholarship.
Supranational public authority is exercised in the adoption of legal acts of the European
Union, the legislative and administrative acts of the Union, and the decision-making
of the European judiciary.55 That the EU exercises public authority appears now to be
largely undisputed, even if the pertinent discussion is usually conducted under the
more technical term of competences. But the authority of institutions of “global governance”56 is also increasingly brought into the fold of this logic, as evinced by the
coined terms, such as “lawmaking” by international institutions;57 “international” or
“global” administrative law;58 or international judiciary, in particular with regards to
criminal courts.59
Needless to say, this definition of “publicness” is rather formalistic and does not
exhaust the meaning that the term has acquired in the tradition of western public law.
In liberal and democratic states, publicness is closely connected to the duty of public institutions to serve the common interest and to comply with fundamental principles,60 hence, unlike a band of robbers, to be legitimate. Such expectations should,
however, not be anchored in the concept of public authority, but rather in individual
principles (see Section 1.3).61
This concept of public authority as a common foundational concept for national,
supranational, and international institutions does not assert their identity in every
respect. To the contrary, it forms the starting point for grasping their respective specificity. Accordingly, a state’s public authority is typically characterized by the competence to originate and define competences (Kompetenz–Kompetenz), i.e., as original
public authority, as well as by the means to effect physical compulsion. Moreover, most
developed states can rely on social resources such as state-related collective identity
and developed solidarity.62 Supranational institutions normally differ from international institutions in that their acts regularly directly shape social interaction in the
legal areas of states. These differences, which can only be alluded to here, will be of
great importance in the concretization of basic principles.
(c) Public authority of other states
The domestic legal area of EU members has not only opened up toward “the top” but
also “sideways,” so that the members can now be considered part of the European
Stephan Bitter, Die Sanktion im Recht der Europäischen Union (2011).
James N. Rosenau, Governance, Order, and Change in World Politics, in Governance without Government 1
(James N. Rosenau & Ernst-Otto Czempiel eds., 1992).
57
José Alvarez, International Organizations as Law-makers (2005).
58
See Kingsbury et al., supra note 40.
59
Frank Meyer, Strafrechtsgenese in Internationalen Organisationen 601 et seq., 837 et seq. (2012).
60
Carl J. Friedrich, Constitutional Government and Politics 247 et seq. (1937); Karl Loewenstein, Political Power
and the Governmental Process (1957); Louis Henkin, A New Birth of Constitutionalism, in Constitutionalism,
Identity, Difference and Legitimacy 39 (Michel Rosenfeld ed., 1994).
61
But see Benedict Kingsbury, The Concept of “Law” in Global Administrative Law, 20 Eur. J. Int’l L. 23, 30
et seq. (2009); Alexander Somek, The Concept of “Law” in Global Administrative Law: A Reply to Benedict
Kingsbury, 20 Eur. J. Int’l L. 985, 990 (2009).
62
BVerfGE 89, 155; BVerfGE 123, 267 (Ger.).
55
56
Common principles for a plurality of orders
991
legal area.63 Evidently, this opening is not entirely new. Probably the oldest aspect
thereof can be found in so-called private international law, which obliges state courts
to apply the private law of other states.64 This opening has, however, gained in importance in the course of Europeanization and internationalization. To begin with, the
respective state law was largely harmonized through the so-called Rome I and Rome II
Regulations,65 as well as the Council Regulation (EC) on Jurisdiction, Recognition and
Enforcement of Judgments in Civil and Commercial Matters.66 This not only implies a
considerable opening up within the EU vis-à-vis private law of other member states.
The domestic legal area is also opened onto third countries, given that the provisions
of the Regulations also foresee the application of non-EU member state law pursuant
to requirements that are less stringent than those of the former German law.67
A new moment of “lateral openness” can be encountered in administrative law.
According to established law, the territorial principle applies to administrative acts;
only a handful of administrative acts, such as driving permits, were recognized as
valid across borders on account of international treaties.68 In the meantime, transnational administrative acts are a constant and features in administrative law, to
the extent that measures of other states are valid in Germany and even enforced by
German authorities.69 This is in many situations prescribed by EU law70 and public
international law.71
Another opening that is of particular relevance for the basic principles can be
observed in comparative law. National courts draw upon judgments of other national
courts, thereby developing in tandem legal constructions and furthering a transnational judicial interaction, even dialogue.72 Principles are further developed in
Rainer Wahl, Europäisierung: Die miteinander verbundenen Entwicklungen von Rechtsordnungen als ganzen, in
Allgemeines Verwaltungsrecht, supra note 40, at 869, 897.
64
Bernd von Hoffmann & Karsten Thorn, Internationales Privatrecht 47 (10th ed. 2012).
65
Regulation (EC) No. 593/2008 of the European Parliament and of the Council of June 17, 2008 on
the Law Applicable to Contractual Obligations, 2008, O.J. L177/6 (hereinafter Rome I Regulation) and
Regulation (EC) No. 864/2007 of the European Parliament and of the Council of July 11, 2007 on the
law applicable to non-contractual obligations, 2007, O.J. L199/40 (hereinafter Rome II Regulation).
66
Council Regulation (EC) No. 44/2001 of Dec. 22, 2000 on Jurisdiction and the Recognition and
Enforcement of Judgments in Civil and Commercial Matters, 2001, O.J. L12/1.
67
Rome I Regulation, art. 2 and Rome II Regulation, art. 3.
68
Matthias Ruffert, Der transnationale Verwaltungsakt, 34 Die Verwaltung 453, 457 (2001).
69
Eberhard Schmidt-Aßmann, Deutsches und Europäisches Verwaltungsrecht, 108 Deutsches Verwaltungsblatt
924, 935 (1993); Gernot Sydow, Verwaltungskooperation in der Europäischen Union 141 et seq. (2004).
70
Christoph Ohler, Europäisches und nationales Verwaltungsrecht, in Verwaltungsrecht der Europäischen Union 331,
344 (Philipp Terhechte ed., 2011); Jürgen Bast, Transnationale Verwaltung des europäischen Migrationsraums,
46 Der Staat 1 (2007); Sascha Michaels, Anerkennungspflichten im Wirtschaftsverwaltungsrecht der
Europäischen Gemeinschaft und der Bundesrepublik Deutschland 188 et seq. (2004).
71
Kalypso Nicolaidis & Gregory Shaffer, Transnational Mutual Recognition Regimes: Governance without Global
Government, 68 Law & Contemp. Prob. 263 (2005).
72
Eyal Benvenisti, Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National
Courts, 102 Am. J. Int’l L. 241 (2008); Anne-Marie Slaughter, A Global Community of Courts, 44 Harv.
Int’l L.J. 191 (2003); Mattias Wendel, Permeabilität im europäischen Verfassungsrecht 53 et seq. (2011); a
cautious approach concerning the German civil jurisdiction: Filippo Ranieri, Die Rechtsvergleichung und
das deutsche Zivilrecht im 20. Jahrhundert, in Ins Wasser geworfen und Ozeane durchquert: Festschrift für Knut
Wolfgang Nörr 777, 796 et seq. (Mario Ascheri et al. eds., 2003).
63
992
I•CON 12 (2014), 980–1007
this transnational discourse. References to judicial pronouncements originating in
other states have become more prominent in the adjudication of the German Federal
Constitutional Court (Bundesverfassungsgericht).73 So far, these are largely affirmative
in nature and have, unlike judgments of the ECtHR, no authoritative effect.74 However,
it is open to question whether the decisions of other highest courts should have such
effect in the context of the German legal area becoming embedded in the European
legal area. One might consider in particular the question whether a deviation from
another court’s solution should call for argumentation. Arguably, questions of shared
interest should—in the framework of the European legal area—be approached in a
common dialogue that demands reasoned argumentation, particularly in case of disagreement.75 Of course, such dialogue engenders further challenging questions, as
the critical consideration of a judgment of the Bundesverfassungsgericht by the Czech
Constitutional Court demonstrates.76
1.3. Principles
The search for principles is a routine way for legal scholarship to reveal basic structures. Yet “principle” is a difficult and contentious term.77 The present article is based
on an understanding of principles as particularly important norms which provide orientation and, at the same time, if basic principles, for closure, i.e., last and founding
arguments. Hence the term “principle” has an attributive character. It endows a norm
with special significance. Insofar this article understands principles differently than
does Alexy, who considers principles in contradistinction to rules as optimization commands capable of being balanced.78 The underlying categorical distinction between
rules and principles is, however, not very convincing.79
Principles are typically abstract and vague, which leaves ample room for interpretation, as well as for connection to general normative discourses in society. Basic principles, in the tradition of western liberal democracies,80 are norms that constitute a
Sauer, supra note 12.
On the level of authority of decisions of the ECtHR according to the German Federal Constitutional
Court, see its Görgülü decision, BVerfGE 111, 307 at 317, 323 (Ger.) and BVerfGE 128, 326, at 368 et
seq. (Ger.) (concerning preventive detention).
75
Stephan Schill, Crafting the International Economic Order: The Public Function of Investment Treaty
Arbitration and Its Significance for the Role of the Arbitrator, 23 Leiden J. Int’l L. 401, 424 et seq. (2010).
76
See Decision of the Constitutional Court of Nov. 3, 2009, Pl ÚS 29/09 (Treaty of Lisbon II) esp. ¶¶ 110 et
seq., 137 et seq. (Czech.).
77
Foundational in this respect, see Ronald Dworkin, Taking Rights Seriously 26 et seq. (1977); concerning the
debate, see Riccardo Guastini, Distinguendo: Studi di teoria e metateoria del diritto 115 et seq. (1996); Martti
Koskenniemi, General Principles, in Sources of International Law 359 (Martti Koskenniemi ed., 2000);
Jürgen Habermas, Between Facts and Norms 206 et seq. (William Rehg trans., 1997); Robert Alexy, A Theory
of Constitutional Rights (Julian Rivers trans., 2010); Franz Reimer, Verfassungsprinzipien: Ein Normtyp im
Grundgesetz (2001).
78
For details, see Alexy, supra note 77, at 47 et seq.
79
András Jakab, Re-Defining Principles as Important Rules—A Critique of Robert Alexy, in On the Nature of
Legal Principles 145 (Martin Borowski ed., 2010).
80
On the question of Eurocentrism, see Armin von Bogdandy, The European Lesson for International Democracy:
The Significance of Articles 9–12 EU Treaty for International Organizations, 23 Eur. J. Int’l L. 315 (2012).
73
74
Common principles for a plurality of orders
993
normatively grounded function for the exercise of public authority; they define the
elementary legitimating fundamentals in light of the necessity for public action to be
justified.81 This material conception of basic principles comprises only a few norms,
which in national constitutional law are not only referred to as basic principles
(Grundprinzipien), but also as structural principles (Strukturprinzipien).82
A norm that is a principle can also be contained in standard instruments
(Handlungsformen) belonging to “soft law”; this accords with the concept of
public authority developed above.83 Not least for that reason principles have no
homogenous legal status. A norm that has been identified as a principle can confine itself to simply enabling a reconstruction of the available legal materials, as
simply a doctrinal principle relating to structure or order. A norm could further
be a guiding principle, seeking to have an effect on political or administrative
processes. Consensual decisions requiring further elaboration are often effected
in such form in supranational and international spheres.84 Moreover, principles
can as legal principles weigh in on interpretation, and in some cases even independently produce legal consequences. It follows that the mere qualification of a
norm as containing a principle does not entail specific legal consequences. It bears
emphasizing that principles are endowed with different degrees of normativity in
different legal orders; a high degree of normativity, as is typical in the German
constitutional order, is not the standard.85 This article focuses on presenting the
overarching basic principles as structural or guiding principles in order to elucidate the broader context and to underline the potential, and the promise, of a
multilevel discourse within legal scholarship.
Accordingly, the three principles—the rule of law, democracy, and protection of
human rights—will be central to this discussion. This is not to deny the existence and
importance of other principles, such as those of social welfare, sustainability, or subsidiarity; however, these principles can be deduced from the first three, and parsimony
is a principle of scholarly construction.
2. Individual basic principles and their legal foundations
The question how the principles of democracy, the rule of law, and protection of human
rights are to be conceived and respected in this new broader constellation occupies
Concerning the expression of “principe fondateur”, see Les principes fondateurs de l’Union européenne (Joël
Molinier ed., 2005) 24; similarly, see Dworkin, supra note 77, at 22.
82
Horst Dreier, Art. 25 (Einführung), in 2 Grundgesetz-Kommentar ¶¶ 5, 8 (Horst Dreier (ed), 2d ed. 2006);
Reimer, supra note 77, at 26 et seq.
83
The reasons for this ample legal concept coincide with those for the ample concept of public authority: see
Section 1.2(b). 84
Cf. UNGA Res 60/1, 2005 World Summit Outcome, UN Doc. A/RES/60/1, ¶ 119 (Oct. 24, 2005): “they
[Rule of Law, democracy, human rights] belong to the universal and indivisible core values and principles
of the United Nations.” 85
Niklas Luhmann, Law as a Social System 490 (Klaus A Ziegert trans., 2004) even regards this as a European
anomaly in decline. 81
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I•CON 12 (2014), 980–1007
not only legal scholarship, but also other disciplines,86 such as political theory and
legal philosophy.87 The relationship of legal scholarship to these other disciplines is as
fluid as it is fraught with difficulty. The difference cannot lie in the principles as such.
Democracy, the rule of law, and human rights are a focal point in legal scholarship as
they are in other disciplines. The specificity is rather that a theoretical or philosophical discourse can proceed purely by deduction, whereas juridical analysis has to be
informed by the governing law, i.e., by positive provisions and judicial decisions. The
first task of a contribution of legal scholarship to this broad and often public debate
is to state its results that have been consolidated into law. This task is carried out by
explaining how positive law grounds these principles and by outlining their purported
scope of applicability.
Where to start? The provisions of the Basic Law apply within the German territory
as acts of constituent power and thus constitute original public authority.88 These provisions are therefore a suitable starting point. An exposition of the basic principles of
EU constitutional law and public international law follows.
2.1. Basic principles of the Basic Law
(a) Parameters for German public authority
The Basic Law lays down numerous principles for all German agencies exercising public authority. A particular group of these are to be found in articles 1 and 20, namely
human dignity and the fundamental core of inalienable human rights, as well as
democracy, federalism, the rule of law (in German, Rechtsstaatlichkeit), and solidarity
(in German, Sozialstaatlichkeit). Comparative constitutional study reveals that these
principles are within the European and international mainstream,89 but that they are
particularly dense on account of singularly intensive constitutional adjudication.90
The central principles of respect for human dignity, democracy, and the rule of law
are all specified in the Basic Law itself. The principles of respect for human rights and
of democracy are rendered more concrete, in particular through the enumeration of
fundamental rights and the provisions on fair election (article 38), whereas the rule
of law principle is specified by way of articles 19(4) and 97–104 or by way of jurisdictional rules reflecting the separation of powers. The attendant constitutionalization
of the legal order and the incorporation of any German public authority are likely
In this regard, the Cluster of Excellence “The Formation of Normative Orders” at Frankfurt am Main
University is a focal point in international scholarship. See Rainer Forst & Klaus Günther, Die Herausbildung
normativer Ordnungen. Zur Idee eines interdisziplinären Forschungsprogramms, in Die Herausbildung normativer Ordnungen 11 (Rainer Forst & Klaus Günther eds., 2011). 87
John Rawls, A Theory of Justice 60 et seq. (1972); Dworkin, supra note 77, at 22 et seq.; Habermas, supra note
77, at 132, 168 et seq., 197. 88
On the relevance of this constitutional legal concept, see Tobias Herbst, Legitimation durch Verfassungsgebung
(2003).
89
Pedro Cruz Villalón, Grundlagen und Grundzüge staatlichen Verfassungsrechts: Vergleich, in 3 Handbuch Ius
Publicum Europaeum, supra note 36, at 729. 90
On the reasons, see Christoph Schönberger, Anmerkungen zu Karlsruhe, in Das entgrenzte Gericht 9, 27
(Matthias Jestaedt et al. eds., 2011). This activism is even commented on by the Supreme Court of the
United States, see United States v. Windsor, 133 S.Ct. 2675, 2706 (2013) (Scalia, J., dissenting).
86
Common principles for a plurality of orders
995
the most important development within the legal order of the Federal Republic in the
first forty years of its existence.91 Although it remains unclear whether this depth of
constitutionalization should be seen as idiosyncratic or internationally exemplary, it is
beyond dispute that it has been an integral part of a rather successful development.92
(b) Parameters for supranational and international public authorities
The Basic Law not only imposes principles on German public authority, but also on
supranational and international public authority. Although it remarkably opens up
the German legal area onto international and European law93—only few European
constitutions contain equally far-reaching provisions94—at the same time, in article
23(1), the Basic Law also contains a series of prerequisites for the European Union.
The latter must be “committed to democratic, social and federal principles, to the rule
of law and to the principle of subsidiarity” and provide “a level of protection of basic
rights essentially comparable to that afforded by [the] Basic Law.” The Basic Law is
rather unique in this respect. The parameters contained in the constitutions of most
other EU member states are much more vague.95 They have, however, been developed
by the respective national constitutional courts, often by taking a page out of the
Bundesverfassungsgericht’s book, albeit in a less detailed fashion.96
Parameters for international organizations are contained in articles 24 and 59 of
the Basic Law. While article 59(2) is, comparatively speaking, more or less within the
state-centered median,97 article 24 belongs to those provisions that are particularly
receptive to supranational authority.98 Its less demanding parameters, as compared to
article 23(1), reflect the state of the debate at the time article 24 was being revised in the
early 1990s. Courts and legal scholars have on this basis carefully developed a few principle-oriented demands. An international organization may not, for instance, exceed its
democratically legitimized mandate.99 This demand therefore affords pride of place to
Wahl, supra note 30. See also Gunnar Folke Schuppert & Christian Bumke, Die Konstitutionalisierung der
Rechtsordnung (2000).
92
See only the contributions in Herzkammern der Republik. Die Deutschen und das Bundesverfassungsgericht
(Michael Stolleis ed., 2011). 93
For a seminal work, see Vogel, supra note 29; from the newer literature, see Wendel, supra note 72.
94
See the Dutch constitution which provides in art. 90 that the government shall promote the development
of the international legal order. Far-reaching is also art. 193(4) of the Swiss constitution.
95
Certain requirements are also to be found in art. 8(4) of the Portuguese constitution (“with respect for
the fundamental principles of a democratic state based on the rule of law”).
96
E.g., in Sweden, Hungary and the Czech Republic; cf. Wendel, supra note 72, at 449 et seq.; summarizing
Peter M. Huber, Offene Staatlichkeit: Vergleich, in 2 Handbuch Ius Publicum Europaeum 433 (Armin von Bogdandy,
Sabino Cassese & Peter M. Huber eds., 2008); Christoph Grabenwarter, National Constitutional Law Relating to
the European Union, in Principles of European Constitutional Law, supra note 15, 83, at 85 et seq.; Franz C. Mayer,
Multilevel Constitutional Jurisdiction, in Principles of European Constitutional Law, supra note 15, at 399.
97
Similar requirements may be found in art. 53 Const. (Fr.), art. 89 Const. (Pol.), and 1991 Const., art. 3a
(Slovn.).
98
Ingolf Pernice, Art. 24, in 2 Grundgesetz-Kommentar, supra note 82, ¶ 14; but cautious authorizations of
the transfer of public authority can also be found in 1994 Const., art. 34 (Belg.), art. 90(1) Const. (Pol.);
art. 3a Const. (Slovn.), and art. 10a Const. (Czech.).
99
Bundesverfassungsgericht, Judgment, 22 Nov. 22, 2001 on the new strategic concept of the NATO,
BVerfGE 104, 151 (Ger.).
91
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I•CON 12 (2014), 980–1007
the doctrine of competences. In addition, no transfer of competences may impinge upon
the basic structure of the constitution.100 This results in certain structural requirements
for international organizations, in particular where the principles relating to the protection of human rights and the rule of law are concerned.101 The principle of democracy
underlies the principle of positive legality contained in articles 24 and 59 in conjunction
with the principle of limited attribution of competences: therefore, the relevance of the
principle of democracy for international public authority should be beyond question.
(c) Parameters for other states
The Basic Law does not contain any particular norms that specify prerequisites for
influencing the acts of other states. There are, nevertheless, demands placed on the
application of foreign private law and the recognition of foreign judgments in civil
matters by German institutions within the limits of the so called ordre public (i.e., public policy). According to article 6 sentence 1 of the Introductory Act to the Civil Code
(Einführungsgesetz zum Bürgerlichen Gesetzbuch, EGBGB), “a provision of the law
of another country shall not be applied where its application would lead to a result
which is manifestly incompatible with the fundamental principles of German law.”102
These fundamental principles derive today from the principles of the Basic Law.103
Furthermore, principles of public international law play a role in the interpretation
of article 6 of the Introductory Act to the Civil Code via article 25 of the Basic Law;
the German ordre public has been internationalized.104 The public policy exception
restricts, however, only the recognition and the effect of foreign judgments where foreign proceedings disregarded minimal rule of law requirements or where the result of
recognition would contradict essential values of the Basic Law.105 Parameters for the
public authority of other states hence only exist indirectly and within narrow confines;
a general configuration in line with democracy or the rule of law is not demanded.
The fundamental principles of the protection of human rights, the rule of law, and
democracy are quintessential to all forms of public authority that have an impact
within the German territory. The degree of specificity, however, varies greatly. It
ranges from the rich doctrine and mass of judicial pronouncements on German public
authority, to vague demands placed on supranational authority wielded by the EU,
down to minimal restrictions on the effects of acts of other states. There is logic to this:
Pernice, supra note 98, ¶ 32.
Rudolf Streinz, Art. 25, in GG Kommentar ¶ 29 (Michael Sachs ed., 6th ed. 2011).
102
Similarly see Zivilprozessordnung [ZPO] [Code of Civil Procedure] § 328(1) (Ger.); correspondent provisions
in the European Union law in Rome I Regulation, art. 21 and Rome II Regulation, art. 10; concerning the
recognition of foreign judgments ZPO, § 328(1) and Council Regulation 44/2001/EC of Dec. 22, 2000
on jurisdiction and the recognition of judgments in civil and commercial matters, 2001 O.J. L 012, art 34
no. 1.
103
Einführungsgesetz zum Bürgerlichen Gesetzbuch [EGBGB] [Introductory Law to the German Civil Code], Art.
6(2) which underlines the compatibility with fundamental rights as a condition.
104
Dieter Blumenwitz, Art. 6, in J. von Staudingers Kommentar zum Bürgerlichen Gesetzbuch ¶ 63 et seq. (Dieter
Henrich ed., new ed. 2003).
105
Peter Gottwald, § 328, in 1 Münchner Kommentar zur ZPO, ¶¶ 116 et seq. (Thomas Rauscher, Peter Wax, &
Joachim Wenzel eds., 4th ed. 2013).
100
101
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the parameters for German public authority are not readily transferable to other institutions of public authority because that would prevent Germany from being embedded internationally, which is in itself a constitutional objective.
2.2. Basic principles of EU law
(a) Parameters for public authority of the European Union
EU law stipulates the basic principles of public authority in article 2 sentence 1 of
the Treaty on European Union (TEU), namely “respect for human dignity, freedom,
democracy, equality, the rule of law and respect for human rights.” Many provisions
of primary EU law concretize these principles with a view to allowing the Union to
exercise public authority; these provisions include, in particular, articles 9 to 12 TEU
(the principle of democracy) and the Charter of Fundamental Rights of the European
Union (CFREU) (fundamental rights and the rule of law). The detailed rules laying
down EU competences, i.e., articles 1(1), 4, and 5 TEU, together with articles 2 to 6
TFEU, are also of heightened importance for the principles of democracy and the rule
of law. Slowly, an EU specific understanding of these principles is developing, thereby
concretizing its sui generis nature.106 These principles and the ensuing doctrines have
to be inspired by national discourses on fundamental principles, but cannot follow
these dicourses blindly. For example, the German constitutional acquis cannot be the
role model, since there are simply too many missing prerequisites at the European
level, including the traumatic background, the special role of the German Federal
Constitutional Court, as well as the specific role of legal scholarship. Of course, there
has been a constitutionalization of Community law,107 but this is a different phenomenon from the constitutionalization of the German legal order.
(b) Parameters for states
The principles entrenched in article 2 TEU are not only prerequisites for the authority
of the European Union, but also for national public authority. One has to distinguish
at this point between EU Member States and third countries. The relevance of these
principles for member states emerges from articles 7 and 49 TEU. These articles apply to
every exercise of public authority by a member state, even if this exercise falls outside of
the scope of application of article 51 CFREU.108 The precise content of these principles
Les principes fondateurs de l’Union européenne, supra note 81; L’ordinamento Europeo: I principi dell’Unione
(Stelio Mangiameli ed., 2006); Verfassungsprinzipien in Europa (Hartmut Bauer & Christian Calliess eds.,
2008); Claudio Franzius, Europäisches Verfassungsrechtsdenken 87 et seq. (2010); Bengt Beutler, Die Werte
der Europäischen Union und ihr Wert, in Öffentliches Recht im offenen Staat: Festschrift für Rainer Wahl zum
70. Geburtstag 635 (Ivo Appel, Georg Hermes, & Christoph Schönberger ed., 2011).
107
Seminal Joseph H.H. Weiler, The Transformation of Europe, 100 Yale L.J. 2403 (1991).
108
Meinhard Hilf & Frank Schorkopf, Art. 2 EUV [Vertrag über die Europäische Union], in 1 Das Recht der
Europäischen Union ¶18 (Eberhard Grabitz, Meinhard Hilf, & Martin Nettesheim eds., 2010); Matthias Ruffert,
Art. 7 EC, in Kommentar des Vertrages über die Europäische Union und des Vertrages zur Gründung der Europäischen
Gemeinschaft ¶ 4 (Christian Calliess & Matthias Ruffert eds., 4th ed. 2011); Amaryllis Verhoeven, How Democratic
Need European Union Members Be?, 23 Eur. L. Rev. 217, 222–224, 234 (1998); Praesidium of the Convention,
Draft of Articles 1 to 16 of the Constitutional Treaty (Note), Doc. CONV 528/03, at 11 (Feb. 6, 2003).
106
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for member states is, however, controversial.109 The diversity of member state constitutions and article 4(2) TEU militate against a stringent principle of homogeneity as one
finds in the constitutions of federal states, for example article 28(1) of the Basic Law or
articles 95, and following, of the Austrian Constitution. The EU is too diverse for such
homogeneity: there are republics and monarchies; parliamentary and semi-presidential systems; strong and weak parliaments; competing and consociational democracies;
states with weak and strong party structures; weak and strong societal institutions;
unitary and federal orders, strong, weak and missing constitutional courts; as well as
remarkable divergences concerning income and the level of protection afforded by fundamental rights.110 It is an important challenge for legal scholarship to develop adequate and meaningful European parameters against this backdrop.111
Regarding third countries, EU law also makes explicit demands, although it is again
necessary to differentiate, this time between candidate countries and other states.
Pursuant to article 49 TEU, candidate countries have to comply with the basic principles of article 2 TEU.112 In the past, this requirement has often been a catalyst for liberal-democratic reforms.113 Moreover, EU law requires EU institutions to work towards
liberal-democratic developments in third states,114 as emerges from article 3(5) and
21(1) TEU. It appears that the drafters of the EU treaties saw the Union as a standard
bearer for democratic freedom.115 In practice, these principles, however, hardly affect
Union policy: discussions on the application of these norms have been, until now, few
and far between,116 and there has been little or no jurisprudence.117
This is reflected in the debate concerning the interpretation of the Charter of Fundamental Rights of the
European Union, 2010 O.J. C 83/02, art. 51(1). On a restrictive approach, see, e.g., Peter M. Huber, Auslegung
und Anwendung der Charta der Grundrechte, 64 Neue Juristische Wochenschrift 2385 (2011); Martin Borowsky,
Art. 51 GrCH, in Charta der Grundrechte der Europäischen Union ¶ 24 (Jürgen Meyer ed., 3d ed. 2011); contra
Koen Lenaerts, Die EU Grundrechtecharta: Anwendbarkeit und Auslegung, Europarecht 3 [2012]. 110
Cruz Villalón, supra note 89.
111
For an attempt, see Armin von Bogdandy et al., Reverse Solange, 49 Common Mkt L. Rev 489 (2012). Given
the recent developments in Hungary and Romania, this is an important current issue: see Viviane Reding,
Safeguarding the Rule of Law and Solving the “Copenhagen Dilemma”: Towards a New EU-Mechanism, Speech
at General Affairs Council, Luxembourg, Doc. SPEECH/13/348 (Apr. 22, 2013), available at http://
europa.eu/rapid/press-release_SPEECH-13-348_en.htm?locale=en.
112
For a detailed discussion, see Michael Rötting, Das verfassungsrechtliche Beitrittsverfahren zur Europäischen
Union (2009).
113
Wojciech Sadurski, Accession’s Democracy Dividend: The Impact of the EU Enlargement upon Democracy
in the New Member States of Central and Eastern Europe, 10 Eur. L.J. 371 (2004); Ulrich Sedelmeier,
Europeanisation in New Member and Candidate States, 6 Living Reviews in Eur. Governance 1 (2011), available
at http://europeangovernance.livingreviews.org/Articles/lreg-2011-1.
114
For a political science perspective, see Ian Manners, Normative Power Europe: A Contradiction in Terms?, 40
J. Common Mkt Stud. 235 (2002); Frank Schimmelfennig, Europeanization beyond Europe, (2012) 7 Living Reviews
in Eur. Governance 1 (2012), available at http://europeangovernance.livingreviews.org/Articles/lreg-2012-1.
115
On hegemonic aspects, see already Johan Galtung, The European Community: A Superpower in the Making 117
et seq. (1973).
116
But see Marise Cremona, Values in EU Foreign Policy, in Beyond the Established Legal Orders 275, 280 et seq.
(Malcolm Evans & Panos Koutrakos ed., 2011); Markus Krajewski, External Trade Law and the Constitution
Treaty: Towards a Federal and More Democratic Foreign Policy?, 42 Common Mkt L. Rev. 91, 106 et seq. (2005).
117
Arts. 3(5) and 21(1) TEU have mainly been used to underline the binding effect of international law for the EU.
See C-366/10 Air Transport Association of America & ors. v. Secretary of State for Energy and Climate Change,
2011, E.C.R. I-13755, ¶ 101; T-85/09 Kadi v. Commission, 2010, E.C.R. II-5177, ¶ 115 (hereinafter Kadi II).
109
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(c) Parameters for international organizations
The EU treaties impose no explicit requirements regarding the opening vis-à-vis acts
from international institutions. But it is possible to read the objectives stated in articles
3(5) and 21(1) TEU in the sense that the Union should strive for the liberal-democratic
development of international organizations, too.118 This aim is also reflected in the
pertinent competence norms.119
Judgments of the Court of Justice of the European Union (CJEU) do not, however,
articulate these principles for international organizations. The court’s decisions rather
aim at the protection of the EU’s autonomy, on the one hand, and of the CJEU’s adjudicatory competence, on the other.120 Particularly important in this context is the socalled Kadi jurisprudence. According to widespread, but by no means general, opinion,
the CJEU missed the opportunity to apply the Solange-formula, which made the reception of international acts dependent on a reasonable respect of the basic principles by
the international institutions.121
2.3. Basic public law principles of public international law
(a) Parameters of general international law and constitutionalism
Public international law lacks a foundational legislation comparable to the German Basic
Law or to the EU treaties, that would provide principles relating to the protection of human
rights, the rule of law, or democracy for any authority subject to international law. There
have been, of course, plenty of political and scholarly attempts to overcome what is by many
considered a defect; these attempts have intensified in recent years.122 Among the contributions to legal scholarship, international constitutionalism is particularly noteworthy.123
Constitutionalism sees and develops basic international legal norms in light of liberal constitutions.124 Occasionally, it has been proposed that certain international
In this sense, see Ernst-Ulrich Petersmann, The 2004 Treaty Establishing a Constitution for Europe and
Foreign Policy: A New Constitutional Paradigm?, in Europa und seine Verfassung: Festschrift für Manfred Zuleeg
zu seinem 70. Geburtstag 176, 185 et seq. (Charlotte Gaitanides, Stefan Kadelbach, & Gil C. Rodríguez
Iglesias eds., 2005); Cremona, supra note 116, at 307 et seq.
119
References in art. 207 TFEU (common commercial policy); art. 208(1) TFEU (development cooperation);
art. 212(1) TFEU (economic, financial, and technical cooperation with third countries); and art. 214(1)
TFEU (humanitarian aid).
120
Opinion 1/91, EFTA, 1991 E.C.R. I-6079 ¶¶ 34 et seq. (Dec. 14, 1991); Opinion 1/09, European and
Community Patents Court, 2011 E.C.R. I-1137 ¶¶ 64 et seq. (Mar. 8, 2011).
121
Joseph H.H. Weiler, Editorial, 19 Eur. J. Int’l L. 895, 896 (2008); Daniel Halberstam & Eric Stein, The
United Nations, the European Union and the King of Sweden: Economic Sanctions and Individual Rights in a
Plural World Order, (2009) 46 CML Rev 13, 60 et seq. (2009). For example, Heiko Sauer, Rechtsschutz
gegen völkerrechtsdeterminiertes Gemeinschaftsrecht? Die Terroristenlisten vor dem EuGH, Neue Juristische
Wochenschrift 3685, 3686 (2008) detects a Solange approach in Kadi II.
122
Recently, an interdisciplinary journal, Global Constitutionalism, was even founded: see the editorial of the
first issue: Antje Wiener et al., Global Constitutionalism: Human Rights, Democracy and the Rule of Law, 1
Global Const. 1 (2012).
123
On the development as well as an overview, see Kleinlein, supra note 12.
124
Anne Peters, Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms
and Structures, 19 Leiden J. Int’l L. 579 (2006); Stefan Kadelbach & Thomas Kleinlein, Überstaatliches
Verfassungsrecht, 44 Archiv des Völkerrechts 235 (2006).
118
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principles might be jus cogens, prevailing not only over the remainder of public international law, but over all law.125 This understanding, however, stretches the concept
of jus cogens too far.126 A more measured approach unfolds the UN Charter in light of
basic constitutional principles.127 Another one utilizes a material concept of constitutional law and identifies particularly important norms of public international law as
constitutional.128 It is possible to reach similar results via administrative law angles.129
The public law approach pursued here is also dedicated to ensuring and promoting
liberal-democratic authority, but it operates by way of a different conceptual foundation and avoids the problems of the other approaches, since it focuses, both doctrinally
and from the perspective of legitimacy, on the exercise of public authority.
(b) Parameters for states
The requirement that all states abide by the public international law principle of the
protection of human rights is well enshrined. Most states are parties to universal
human rights pacts.130 The specific constitutional function of those pacts is expressly
recognized in numerous newer constitutions.131 Not quite as patent is the obligation
concerning states that are not contracting parties. Yet, a plethora of doctrinal offerings makes a convincing case for obligations at least as concerns fundamental human
rights.132 These rights include above all the right to life, the prohibition of torture,
slavery and arbitrary imprisonment.133
What is problematic with respect to the principle of human rights is not so much its
legal basis as its implementation, as convincingly, and rather depressingly, testified by
For example, the International Criminal Tribunal for the former Yugoslavia (ICTY) declared in its
Furundžija judgment that the prohibition of torture has the status of jus cogens, which prohibits different national provisions and renders them void. See Prosecutor v. Furundžija, Case No. ICTY-95-17/1-T,
Decision, ¶¶ 144 et seq. (Int’l Crim. Trib. for the Former Yugoslavia, Dec. 10, 1998).
126
Declarations, such as in UNGA Res. 60/1, stating that the rule of law, democracy, and human rights
“belong to the universal and indivisible core values and principles of the United Nations,” cannot recognize jus cogens. See Stefan Kadelbach, Jus Cogens, Obligations Erga Omnes and Other Rules: The Identification
of Fundamental Norms, in The Fundamental Rules of the International Legal Order 30 (Jean-Marc Thouvenin
& Christian Tomuschat eds., 2006).
127
Alfred Verdross & Bruno Simma, Universelles Völkerrecht 69 et seq. (3d ed. 1984); Bardo Fassbender, The
United Nations Charter as the Constitution of the International Community (2009).
128
See Anne Peters, Rechtsordnungen und Konstitutionalisierung: Zur Neubestimmung der Verhältnisse, 65
Zeitschrift für öffentliches Recht 3 (2010).
129
Kingsbury et al., supra note 40, at 15.
130
For an authoritative voice from the “new world,” see Flávia Piovesan, Direitos Humanos e o Direito
Constitucional Internacional 227 (13th ed. 2012).
131
From the European judicial area, see only Const., B.O.E. n. 311, Dec. 29, 1978, § 10 (Spain); art. 20
(2001) Const. (Rom.); art. 11 Const. (Slovn.). Similarly, see new provisions in the Latin American constitutions, e.g., §§ 75, 22 Constitucion Nacional [Const. Nac.] (Arg.); art. 6 Const. (Uru.). See also Christina
Binder, The Prohibition of Amnesties by the Inter-American Court of Human Rights, 11 German L.J. 1203
(2011).
132
Olivier De Schutter, International Human Rights Law 49 et seq. (2010); Bruno Simma & Philip Alston,
The Sources of Human Rights Law: Custom, Jus Cogens and General Principles, 12 Austl. Y.B. Int’l L. 100
(1988–1989); Theodor Meron, Human Rights and Humanitarian Norms as Customary Law 79 (1989) 79. See
also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory
Opinion) [2004] ICJ Rep. 136, ¶¶ 107 et seq. 133
Kadelbach, supra note 126, at 29.
125
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many reports. This observation leads to the rule of law. This principle, also known as
Rechtsstaatlichkeit or prééminence du droit, has many facets. Probably its most important
component, for the time being, are procedures that enforce the normativity of law and,
by extension, the normativity of human rights against the exercise of public authority.
Numerous international treaties contain rule of law requirements for national
administrations or courts. To name but a few: articles 9(3)–(4), 14, and 15 of the
International Covenant on Civil and Political Rights (ICCPR); article X of the General
Agreement on Tariffs and Trade (GATT); or article 88 of the ICJ Statute.134 These
requirements are, however, largely sector specific, and often do not reach the minimum requirements of developed national legal orders. Nevertheless, important
authors see this dimension of public international law as strongly developing, and
even claim to have observed the emergence of a general public international law principle of global due process.135 Sabino Cassese, for instance, has described such a trajectory.136 International courts play a viral role in this development.137
It is even more difficult to ascertain with confidence the principle of democracy.
The Charter of the UN demands only that the member states be “peace-loving” (art.
4(1), sentence 1 UN Charter). The self-determination precept, assured in many ways
in public international law, points in the same direction, but it does not lay down the
democratic principle in its generality.138 Public international law undoubtedly reinforces important aspects of democratic order through a series of provisions, in particular through norms protecting human rights and minorities. In addition, article
25 ICCPR prescribes free elections.139 Beyond that, it is a matter of debate whether
public international law imposes any further democratic elements.140 A number of
Regarding a compilation of relevant provisions, see Sabino Cassese, A Global Due Process of Law?, in Values in
Global Administrative Law 17, 21 et seq. (Gordon Anthony et al. eds., 2011); at the European regional level,
these provisions are complemented by the guarantees of the European Convention for the Protection of Human
Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221, esp. arts. 6 and 13 (hereinafter ECHR).
135
Cassese, supra note 134; Sérvulo Correia, Administrative Due or Fair Process: Different Paths in the
Evolutionary Formation of a Global Principle and of a Global Right, in Values in Global Administrative Law,
supra note 134, at 313; Gianluigi Palombella, The Rule of Law Beyond the State: Failures, Promises, Theory,
(2009) 7 Int’l J. Const. L. 442 (2009).
136
Cassese, supra note 134, at 51.
137
WTO, United States—Import Prohibition of Certain Shrimp and Shrimp Products, WT-DS58/AB/R, ¶
182 (Nov. 6, 1998).
138
Anne Peters, Das Gebietsreferendum im Völkerrecht 387 et seq. (1995). Daniel Thürer & Thomas Burri, SelfDetermination, in MPEPIL, supra note 9, observe certain developments in the right to self-determination,
but note that this should not be equated with a right to democracy. See Steven Wheatley, The Democratic
Legitimacy of International Law 213 (2010) on the right to self-determination as jus cogens and as an erga
omnes obligation, but also without equating it with a right to democracy.
139
Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary art. 25, ¶¶ 1, 18 (2d ed.
2005). Its normativity is damaged by the constitutional practice of states such as China or Russia, but it
is not destroyed.
140
Thomas M. Franck, The Emerging Right to Democratic Governance, 86 AJIL 46 (1992); Anne Peters, Dual
Democracy, in The Constitutionalization of International Law 263, 273 et seq. (Jan Klabbers, Anne Peters,
& Geir Ulfstein eds., 2009); Niels Petersen, Demokratie als teleologisches Prinzip (2009); Samantha Besson,
Das Menschenrecht auf Demokratie, in Menschenrechte und Volkssouveränität in Europa 61 (Gret Haller, Klaus
Günther, & Ulfrid Neumann (eds.), 2011).
134
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authors perceive a tendency towards the development of a universal legal principle of
democracy, which does not, however, yet exist as such. It has, however, already been
established as a structural and guiding principle.141 Moreover, all the developments
described in this chapter confirm the transformation of the international sovereignty
of a state. This principle is ever more seen as a functional concept to serve the basic
principles described above.
(c) Parameters for international organizations
The public law principles of public international law traditionally aim at limiting national public authority. The law of international organizations has long
been considered in functionalistic terms, i.e., not with a view to curtailing their
power, but to strengthening it. 142 Since, in this day and age of globalization,
international organizations are veritable agents of public authority, the question arises whether the principles of public international law should also be
applied to them. The debate started with respect to the European Community,
but now, given the increasing impact of other institutions, is becoming increasingly generalized.
The most discussed issue is the extent to which international organizations are
bound by human rights. Even if directly effective acts are only rarely passed by international organizations, the relevance of the organizations’ practices vis-à-vis human
rights is plain to see nowadays—be it “smart sanctions” of the UN Security Council,
the allocation of financial means by the World Bank, or the recognition of refugee
status by the UN High Commissioner for Refugees.
Since these institutions are not contracting parties to human rights pacts, obliging them requires doctrinal constructs that have become as common as they are convincing.143 There is probably not a single international entity today that, in principle,
would deny the relevance of human rights for its actions.144 Clearly, it would otherwise suffer a loss of legitimacy that might threaten the organization.
The situation is similar with respect to the various elements of the rule of law.
Many international organizations possess complex institutional and procedural
rules,145 which, however, hardly operate in the sense of a developed rule of law principle. General statements are difficult to make because the legal situation differs from
For a detailed discussion, see Petersen, supra note 140.
Jan Klabbers, Two Concepts of International Organisation, 2 Int’l Org. L. Rev. 277 (2005).
143
Simma & Alston, supra note 132, at 100 et seq.; Tawhida Ahmed & Israel de Jesús Butler, The European
Union and Human Rights: An International Law Perspective, 17 Eur. J. Int’l L. 771 (2006); Robert
McCorquodale, International Organisations and International Human Rights Law, in International Law and
Power: Perspectives on Legal Order and Justice 141 (Kaiyan Homi Kaikobad & Michael Bohlander eds.,
2009).
144
See UNGA Res 67/1, Declaration of the High-level Meeting of the General Assembly on the Rule of Law
at the National and International Levels (Nov. 30, 2012); UNGA, Delivering Justice: Programme of Action
to Strengthen the Rule of Law at the National and International Levels: Report of the Secretary General, UN Doc.
A/66/749 (Mar. 16, 2012).
145
Jochen von Bernstorff, Procedures of Decision-Making and the Role of Law in International Organisations, 9
German L.J. 1939, 1951 et seq. (2008).
141
142
Common principles for a plurality of orders
1003
organization to organization.146 In particular, there is a dearth of clear provisions
requiring, and affording, legal remedies in the face of actions of supranational and
international institutions.147 Be that as it may, human rights are increasingly understood as demanding at least functionally equivalent procedures that afford legal
recourse;148 the Inspections Panels of the World Bank and the Ombudsperson in the
context of the UN Security Council’s smart sanctions, are emblematic.149 A big, and as
of yet unresolved, question mark hangs over the issue of the extent to which national
courts can compensate for deficiency at the international level.150
Even more difficult is the question whether, and to what extent, there exists a public
international law democracy principle for supranational and international organizations. The mandatory character of the democratic principle for the EU is anchored in
the EU treaties, an analogous provision is absent from the statutes of international
organizations. It would be too positivistic, however, to banish democracy within international organizations from the sphere of legal thought and consign it solely to the
realm of political theory. In view of these difficulties, many authors conversely prefer
to discuss this legitimating feedback loop under the term accountability.151 Ultimately,
however, democracy remains the paramount concept when questions arise as to how
international institutions can be linked to the values, interests, and convictions of the
affected citizens and be responsible to them.
The debate covers a variety of issues, interconnected by the tradition of democratic
thought. It seems safe to say that the principle that international organizations are
bound by their constitutive legal acts is to be understood in light of the democratic
principle.152 Further points are the transparency of international institutions and
the roles of international parliamentary assemblies as well as non-governmental
organizations.153 As multifarious and uncertain as the individual insights may be in
this debate, what one can take away from it is that the concept of democracy can
serve today, in the context of international organizations, as a vanishing point for the
Henry G. Schermers & Niels M. Blokker, International Institutional Law 501 et seq. (5th ed. 2011).
Kirsten Schmalenbach, International Organisations or Institutions, Legal Remedies against Acts of Organs,
in MPEPIL, supra note 9, ¶ 25; Matthias Ruffert & Christian Walter, Institutionalisiertes Völkerrecht (CH
Beck 2009) 75.
148
Clemens A. Feinäugle, The UN Security Council Al-Qaida and Taliban Sanctions Committee: Emerging
Principles of International Institutional Law for the Protection of Individuals?, 9 German L.J. 1513 (2008). 149
Erika de Wet, Holding International Institutions Accountable: The Complementary Role of Non-Judicial
Oversight Mechanisms and Judicial Review, 9 German L.J. 1987, 2000 (2008).
150
Challenging Acts of International Organisations before National Courts (August Reinisch ed., 2010).
151
International Law Association (Committee on Accountability of International Organisations), Final
Report (2004), available at http://www.ila-hq.org/en/committees/index.cfm/cid/9; Kingsbury, supra note
61; Meaning and Practice of Accountability in the EU Multi-Level Context (Deirdre Curtin & Anchrit Wille
eds., 2008); Philipp Dann, Accountability in Development Aid Law. The World Bank, UNDP and the Emerging
Structures of Transnational Oversight, 44 Archiv des Völkerrechts 381 (2006).
152
See Section 2.1(b) supra. See also Rüdiger Wolfrum, Kontrolle der auswärtigen Gewalt, 56 Veröffentlichungen
der Vereinigung der Deutschen Staatsrechtslehrer 38, 45 et seq. and 61 et seq. (1997); Jan Wouters & Philip
De Man, International Organizations as Law-makers, in Research Handbook on the Law of International
Organizations 190, 208 et seq. (Jan Klabbers & Åsa Wallendahl eds., 2011).
153
von Bogdandy, supra note 80. 146
147
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constructions of legal scholarship (e.g., the doctrine of competences) and as a focal
lens for its criticism.
3. Questions of elaboration
3.1. Potentials and problems
Principles relating to the protection of human rights, the rule of law, and, albeit to a
limited extent, democracy, can be identified in German law, EU law, and public international law. Moreover, they apply not only to the institutions of their own legal order
but also to those of interacting ones. For this reason, these principles form the vertices
of an overarching discourse about the basics. Their concurrence bears considerable
potential to develop overarching and general frameworks. Even so, the fact that the
norms of German, EU, and international law, respectively, set principled parameters
for the other legal orders, raises difficult questions, such as, “which legal order prevails?” The classic model for resolving such conflicts and ordering debates on principles can be found in article IV(4) of the Constitution of the United States of America
and in the Fourteenth Amendment, roughly equivalent to articles 28(1) and 31 of the
German Basic Law. According to this provision, the structural principles of the Länder
have to align themselves with the structural principles of the Federation.
A similarly unequivocal rule is missing from these novel contexts of conflict and interpretation.154 Reliance must be placed on doctrinal constructions that negotiate truly
fundamental issues: the mode of reciprocal allocation of state, supranational, and international provisions, as well as the question of the meaning of comparative legal insights.
These fundamental issues raise a series of different, albeit interconnected, questions. In the context of acts of public international law, it is their validity, rank, and
effect within the territorial scope of the application of EU law and national law that
is at issue, i.e., how EU or German institutions are supposed to cope with these acts.
As regards acts of EU law or national law the issue is somewhat different: It is not the
validity, the rank, or effect of EU law or national law within the public international
legal framework but instead the question whether EU or domestic institutions can
assent to international legal acts or whether and how an act of public international
law is relevant in the operation of the internal legal order. Given that principles normally do not lead to direct conflicts, the question then arises how the different understandings and peculiarities of the principles, as they were developed in the positive
law, jurisprudence, and legal scholarship of the respective legal orders relate to each
other; the same question can be posed with respect to the insights of comparative law.
3.2. Pluralism of principles
Pondering the relationship between principles of different legal orders suffers from the
defect of being spellbound by two theoretical offerings of the early twentieth century:
But see U.S. Constitution art. VI; from the European legal area, see, e.g., Basic Law, arts. 1 and 25; art. 10
Const. (It.); art. 55 Const. (Fr.); and art. 216(2) TFEU.
154
Common principles for a plurality of orders
1005
monism and dualism.155 It is not possible to develop any plausible understanding from
these; the current legal and political landscape differs fundamentally from that of a
century ago. The German case is emblematic: Germany, at that time a rather authoritarian and belligerent state, has transformed into a liberal democracy. It no longer
seeks to rival its neighbors for colonies or superpower status, but instead is embedded together with them in a dense fabric of supranational and international organizations, precisely in order to overcome such rivalry. However, monism is not persuasive,
either—whether as a doctrinal or as a theoretical offering. Whenever questions of
validity, rank, effect, or legitimacy of a legal act are to be resolved, it has to be first situated within a specific legal order; hence legal practice clearly does not proceed from
an amalgam of legal orders. All essential questions are always answered by reference
to a specific legal order. Neither monism nor dualism are useful any longer as specific
doctrinal constructs, since they neither can offer plausible solutions to any of the relevant legal questions. They also lead into a dead end from the point of view of theories
designed to capture the entire legal constellation, both analytically and normatively.
Dualism ultimately shares the fate of the traditional principle of sovereignty. Monism
with public international law at its apex shares the weaknesses of world constitutionalism as a paradigm for grasping the existing law.
In constitutional law, one can encounter monism that puts the state on top, for
instance when principles of national constitutional law form the center of the normative universe. Examples might include A. Scalia’s discussions of comparative
law,156 or authors who consider public international law to be foreign relations law,
external Staatsrecht.157 But even such conceptualizations are susceptible to challenge
with respect to the US Constitution, given that the founding fathers were concerned
with the integration of American institutions in a universal project of reason.158 For
Germany, conceptualizations like those of Scalia’s are hardly convincing, given the
unambiguous basic decision in favor of open statehood.
There have been many conceptual attempts to capture the larger setting, which is
the object of this contribution. In the German-speaking context, the terms “multilevel
system,” “network,” and in particular “composite order” have gained prominence (in
German: Mehrebenensystem, Netzwerk, Verbund).159 One can conceive these proposals
Heinrich Triepel, Völkerrecht und Landesrecht 12–22 (1899); Hans Kelsen, Introduction to the Problems of
Legal Theory 107–155 (Bonnie Litschewski Paulson & Stanley L. Paulson trans., 1992); Georges Scelle,
Précis de Droit des Gens 31–32 (1932); Pierre-Marie Dupuy, International Law and Domestic (Municipal)
Law, in MPEPIL, supra note 9.
156
Roper v. Simmons, 543 U.S. 551, 608 (2005) (Scalia, J. dissenting); The Relevance of Foreign Legal Material
in U.S. Constitutional Cases: A Conversation between Justice Antonin Scalia and Justice Stephen Breyer, 3 Int’l
J. Const. L. 519 (2005). 157
Jack Goldsmith & Eric Posner, The Limits of International Law (2005); Curtis Bradley & Jack Goldsmith,
Foreign Relations Law (2d ed. 2007).
158
Vicki C. Jackson, Constitutional Engagement in a Transnational Era 153–154 (2010).
159
Christoph Schönberger, Die Europäische Union als Bund, 129 Archiv des öffentlichen Rechts 81 (2004);
Ingolf Pernice, Multilevel Constitutionalism in the European Union, 27 Eur. L. Rev. 511 (2002); Matthias
Goldmann, Der Widerspenstigen Zähmung, oder: Netzwerke dogmatisch gedacht, in Netzwerke: 47.
Assistententagung Öffentliches Recht 225 (Sigrid Boysen et al. eds., 2007).
155
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I•CON 12 (2014), 980–1007
as part of an international debate on legal pluralism.160 The core insight of pluralistic
positions is that the diverse principles that lay down the requirements for social interaction as part of public international law, EU law, and national law are not considered
to be parts of a unitary legal order. Moreover, they reject the paradigm of hierarchy
as the symbol of the overall order, in the sense of ultimate authority, a “last say.”161
There are two pluralist camps. The more radical approach starts from the premise
of conflict and reads the interaction as a struggle for power; juridical rationality is
rather a mask.162 By contrast, the dialogic approach starts from the observation that
the diverse legal regimes and institutions regularly manage to build stable legal relations despite maintaining their own normative independence, in particular in the
European legal area. Fundamental conflicts are the big exception; the intensive and
oftentimes fruitful collaboration is the norm. Of course, the concept of dialogue is so
far not much elaborated and can be misread as supposing a friendly or even a cozy
relationship between institutions. This contribution does not suggest this, but rather
offers distinction from a form of relationship that is mere interaction, as one could see
between the US courts and the ICJ in the LaGrand case.163 The difference between mere
interaction and dialogue is that dialogue occurs in a setting where legal orders and
institutions accept a common responsibility for the rule of law.164 Dialogic pluralism
is the natural choice for those who prefer Hegel’s insistence on the normal case as the
starting point for scientific thought rather than Carl Schmitt’s exceptionalism.
Dialogic pluralism is so far mostly applied to the relationship between institutions
of the various legal orders, but it can be extended to the relationship between the
founding principles themselves. European Union law shows one possibility with its
protection of “national identity” under article 4(2) TEU.165 The meaning of this EU
concept is shaped by the basic principles at the European as well as at the domestic
level. While the EU framework prescribes some common elements, the specific meaning is determined in light of the basic constitutional principles of the member state in
Klaus Günther, Rechtspluralismus und universeller Code der Legalität: Globalisierung als rechtstheoretisches
Problem, in Die Öffentlichkeit der Vernunft und die Vernunft der Öffentlichkeit: Festschrift für Jürgen Habermas
539 (Wingert Lutz & Klaus Günther eds., 2001); for an excellent review of the various approaches, see
Lars Viellechner, Cosmopolitan Pluralism as an Approach to Law and Globalisation, 3(4) Transnat’l Legal
Theory 461 (2012).
161
Giulio Itzcovich, Legal Order, Legal Pluralism, Fundamental Principle. Europe and Its Law in Three Concepts,
18 Eur. L.J. 358, 370 (2012).
162
Arthur Dyèvre, Game Theory and Judicial Behaviour (Mar. 11, 2011), available at http://ssrn.com/
abstract=1783507; Gunther Teubner, Globale Bukowina. Zur Emergenz eines transnationalen
Rechtspluralismus, 15 Rechtshistorisches J. 255, 261–262 and 273 (1996). See also Andreas FischerLescano & Gunther Teubner, Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of
Global Law, 25 Mich. J. Int’l L. 999 (2003–4); Nico Krisch, Beyond Constitutionalism. The Pluralist Structure
of Postnational Law (2010).
163
LaGrand Case (Ger. v. U.S.), 2001 I.C.J. Rep 466; Alexander Orakhelashvili, Questions of International
Judicial Jurisdiction in the LaGrand Case, 15 Leiden J. Int’l L. 105 (2002).
164
For more details, see Daniel Halberstam, Systems Pluralism and Institutional Pluralism in Constitutional
Law: National, Supranational and Global Governance, in Constitutional Pluralism in the European Union and
Beyond 85 (Matej Avbelj & Jan Komárek eds., 2012). 165
For details, see Armin von Bogdandy & Stephan Schill, Overcoming Absolute Primacy: Respect for National
Identity under the Lisbon Treaty, 48 Common Mkt L. Rev. 1417 (2011). 160
Common principles for a plurality of orders
1007
question. Along similar lines, international sovereignty could be reconstructed with
a composite legal status, responding to the constitutional understanding a country
has of its place in the regional and global order; thus sovereignty becomes a relative
concept.166 Accordingly, international sovereignty could be informed by the respective constitutional openness towards common projects and willingness to recognize
shared responsibility. Since the constitutional orders of Bolivia, China, or Germany
enshrine very different understandings of the international order and the country’s
place therein, depending on the role each constitution attributes to international law
in general and to human rights in particular as well as supranational integration,
a reconstructive proposal should take those differences into account. Of course, the
emerging international sovereignty will be far more nuanced and variegated. But for
this very reason, such a concept of sovereignty fits better with the pluralistic world
order while furthering the basic principles discussed here where political communities
are disposed to advance on that path.
3.3. The principles of principles
For all the difficulties, the basic principles can provide a beacon for political action
and legal reconstruction in this novel constellation, both for what is in common as
for what should remain different. In order to advance scholarly core competencies
such as abstraction, specification, comparison, transfer, and conflict resolution are
demanded in light of dialogic pluralism.167 Blending diverse discourses on principles is
as unlikely, as is a merging of diverse legal orders. Nevertheless, under the premise of
dialogic pluralism, linking them is as probable as it is necessary, since this furthers the
principles of principles, namely the protection of the core of human rights,168 the stabilization of normative expectations,169 as well as the connection to the values, interests, and convictions of those affected: in other words, the inclusion of the citizenry in
the exercise of public authority.170
The idea was first expressed in Armin von Bogdandy & Dana Schmalz, AJIL Symposium: Pushing Benvenisti
Further—International Sovereignty as a Relative Concept, Opinio Juris (July 24, 2013, 2:00 pm), http://opiniojuris.org/2013/07/24/ajil-symposium-pushing-benvenisti-further-international-sovereignty-as-arelative-concept/.
167
Samantha Besson, The Human Right to Democracy—A Moral Defence with a Legal Nuance, in Definition and
Development of Human Rights and Popular Sovereignty in Europe 47 (Council of Europe Publishing 2011);
Hélène Ruiz Fabri, Principes généraux du droit communautaire et droit comparé, 45 Droits 127 (2007).
168
Jochen von Bernstorff, Kerngehaltsschutz durch den UN-Menschenrechtsausschuss und den EGMR: vom Wert
kategorialer Argumentationsformen, 50 Der Staat 165 (2011).
169
Habermas, supra note 77, at 427; Luhmann, supra note 85, at 196–203.
170
Jürgen Habermas, Zur Verfassung Europas: Ein Essay 54 (2011). See also Amartya Sen, The Idea of Justice 117
(2009).
166