: Rainer Hofmann, Stefan Kadelbach
: Law Beyond the State Pasts and Futures
: Campus Verlag
: 9783593434926
: Normative Orders
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Dieser Band versammelt Aufsätze renommierter Völker-und Europarechtler über Vergangenheit und Zukunft des internationalen Rechts, die aus Anlass des 100-jährigen Gründungsjubiläums der Frankfurter Universität entstanden sind. Es geht um die Geschichte von Völker- und Europarecht, die zentrale Bedeutung der 'spiritual dimension' der europäischen Rechtsordnung und um das Internet als Chance, alle von globaler Rechtsetzung betroffenen Personen am Entscheidungsprozess zu beteiligen. Mit Beiträgen von Michael Bothe, Stefan Kadelbach, Martti Koskenniemi, Joseph H.H. Weiler und Ingolf Pernice.

Rainer Hofmann und Stefan Kadelbach sind Professoren für Öffentliches Recht, Völkerrecht und Europarecht an der Universität Frankfurt am Main.
Law Beyond the State-Pasts and Futures: An Introduction
Rainer Hofmann

I. Introduction
On 10 June 1914, Emperor Wilhelm II signed-albeit in his capacity as King of Prussia which had annexed Frankfurt in the aftermath of the Prussian-Austrian war of 1866 thus terminating its century-long status of Freie Reichsstadt-the decree granting the foundation of a university in Frankfurt am Main. The final step was taken on 1 August 1914 when Wilhelm II assented to the statutes of the university. Due to the ongoing war, the inauguration on 26 October 1914 is reported to have been more sober than originally planned; lectures began the following day thus successfully ending a long and often protracted process initiated and carried forward by a number of outstanding personalities such as Franz Adickes, long-time mayor of Frankfurt, and Wilhelm Merton, founder of Metallgesellschaft who had succeeded in mustering the political and above all very strong financial support of leading and affluent members of Frankfurt's traditionally cosmopolitan and liberal bourgeoisie characterized by its very high percentage of Jews; their very substantial endowments made Frankfurt University a true citizens' university, financially independ-ent from any Prussian state support. The Faculty of Law , one of the five initial faculties, comprised seven full professors (Ordinarien) among whom Friedrich Giese who was tasked to teach Public Law, including Public Inter-national Law.
Commemorating the 100st anniversary of its foundation, Frankfurt University and a number of its institutions organized workshops and other academic events throughout 2014. Considering the eminent role usually accorded to Frankfurt scholars for the development of international law, the Faculty of Law convened, on 11 June 2014, in cooperation with the Cluster of Excellence 'The Formation of Normative Orders', a workshop analyzing the role of Frankfurt in the past development of both Public International Law and European (Union) Law as well as looking into the futures of these branches of law as essential components of a 'Law Beyond the State': Michael Bothe discussed, from a historic point of view, Public International Law in Frankfurt; Martti Koskenniemi shared his thoughts on International Law's Futures-Yesterday, Today, Tomorrow; Ingolf Pernice presented his project on Global Constitutionalism and the Internet. Taking People Seriously; and Joseph H.H. Weiler developed his vision on Taking (Europe's) Values Seriously.
These papers, some of them substantially enlarged and revised, and complemented by an article by Stefan Kadelbach on Frankfurt's Contribution to European Law, are assembled in this publication in order to make them available to the public-at-large.

II. The Pasts
While German-speaking scholars always had played an important role in the development of international law, both as concerns its inter-state aspects as Völkerrecht as well as its conflict-of-laws aspects as Internationales Privatrecht, this situation was not reflected in any institutional academic settings until the years immediately preceding and following World War I: 1914 saw the foundation of the Kiel Institute for International Law headed by Theodor Niemeyer; the separation between Public and Private International Law was well reflected in the foundations of the Berlin-based Kaiser-Wilhelm-Institutes for Comparative and International Public Law, under the directorship of Viktor Bruns, in 1924 and for Comparative and International Private Law, under the directorship of Ernst Rabel, in 1926, respectively. The strongly increasing relevance of Public International Law in Germany, not the least as a result of the Versailles Peace Treaty, was reflected, as concerns Frankfurt, in the fact that already in 1920, Karl Strupp began its teaching activities, first as Privatdozent, later (1926) as Extraor-dinarius but only in 1932 as Ordinarius, about one year before he-because of his being a Jew-lost his position and had to emigrate, first to Turkey, then to Denmark and France where he died in 1940-never able to take up a professorship at Columbia University which had been offered to him in 1939. His and his Frankfurt successors' contribution to the development of Public International Law are presented and analyzed in the pertinent contribution by Michael Bothe.
The aftermath of World War II saw, among other developments, the advent of serious integration efforts in the non-communist part of Europe, resulting in the foundation of the Council of Europe in 1949 as a tradi-tional inter-national organization, on the one hand, and of the European Coal and Steel Community (ECSC) in 1951/1952 as the first supra-national organization, on the other hand. The ECSC formed the nucleus of what became, subsequent to the entry into force of the treaties establishing the European Economic Community and the European Atomic Energy Community in 1957 and later developments such as the treaties of Maastricht, Amsterdam, Nice and Lisbon the European Union as we know it today. These developments also resulted in the establishment of a specific branch of International Law, European (Union) Law which was to a large extent influenced by Frankfurt-based scholars such as, in particular Walter Hallstein, the first post-war Rektor of the University (1946-1948) and, as of 1958, the first President of the European Economic Community as which he served until 1967. His and his successors' contribution to the development of European (Union) Law are presented and discussed in the pertinent contribution by Stefan Kadelbach.

1. Public International Law in Frankfurt
In order to cover his topic, i.e. public international law in Frankfurt, Michael Bothe chose to tell 'three different, but intricately intermingled tales: A tale about persons who shaped teaching, research and outreach of international law in Frankfurt during a century; a tale about the history of Germany and the world at large which has had a marked impact on the life and work of these persons; and a tale about the development of legal thought to which these persons have contributed'.
The persons who figure most prominently in these tales are Karl Strupp, Walter Hallstein, Heinrich Kronstein and Hermann Mosler. Bothe considers them-and rightly so-as initiators of developments which became eventually significant for public international law at Frankfurt. These developments or aspects are the documentation of international law, the role of international economic law, and the international system as a legal community.
Strupp's strong international reputation was well reflected in, inter alia, his membership in the Institut de Droit International, first (1927) as associated member, then (in 1932) as ordinary member, and the three invitations to give lectures at the Hague Academy, in 1924 ('L'intervention en matière financière'), 1930 ('Le droit du juge international de statuer selon l'équité') and 1934 ('Les règles génèrales du droit de la paix'). In addition to publishing his important monographs such as Das völkerrechtliche Delikt (1920) and Die völkerrechtliche Haftung des Staates (1927), he initiated what became a true Frankfurt tradition: the documentation of international law as reflected in his Wörterbuch des Völkerrechts (published in three volumes between 1924 and 1929).
This approach, i.e. the understanding that the effectiveness of inter-national law depends to a large extent on its being known by all relevant actors and, therefore, requires its documentation in an easily accessible, encyclopedic format was continued by Hans-Joachim Schlochauer, Strupp's former assistant who being himself a Jew, had fled to Oxford from where he returned to Frankfurt in 1951 to take up a professorship in public international law which he held until 1974. Between 1960 and 1962, he was responsible for the second edition of the Wörterbuch, again in three volumes. Two decades later, it was understood that such a compilation needed the administrative support of a larger unit-and it was Rudolf Bernhardt, a disciple of Hermann Mosler and former professor of public law at Frankfurt, who having assumed his position as co-director of the Heidelberg Max-Planck Institute for Comparative and International Public Law, set out to edit the Encyclopedia of Public International Law (the four volume library edition was published in the nineties) to be succeeded by the Max-Planck Encyclopedia of Public International, edited since 2006 under the aegis of Rüdiger Wolfrum, available also in electronic form. Notwith-standing the fact that thanks to the internet, the real problem might no longer be to have actual access to international law documents, but consists in having access to information on international law presented in a 'digestable' way, which imposes on editors of any encyclopedia an in-creased responsibility carefully to select the essentials of any international law aspect while strictly separating facts from assessment-the need for any encyclopedia fulfilling such requirements might be greater than ever.
Although neither Walter Hallstein nor Heinrich Kronstein might be considered as engaged in public international law but rather comparative and private international law (conflict of laws), they were clearly instru-mental, together with Schlochauer, in establishing international economic law as a subject of research and teaching in Frankfurt, notably by founding, in 1951, the Institute of Foreign and International Economic Law. While is activities were focused in its early years mainly on issues connected with the legal integration of European economies and competition law, it later became in the seventies, under the leadership of Günther Jaenicke, home for a new area of international economic law: the law of commodities (Rohstoffrecht) which, in recent years, has seen quite a strong renaissance, lately also in Frankfurt due to the research conducted by Isabel Feichtner. After Jaenicke's retirement the Institute was dissolved in the nineties and it took some time until, in the framework of the Wilhelm-Merton Centre for European Integration and International Economic Order, research and teaching activities in this field have gained again some weight after 2004, in particular in the field of investment law; a 'Frankfurt specificity' is the strong interest in questions relating to the interrelationship between general international law and investment law as reflected in the topics dealt with in the annual Frankfurt Investment Law Workshops (Rainer Hofmann).
Obviously, Frankfurt based scholars have always addressed such fundamental questions of public international law as the use of force and humanitarian law (suffice to mention the ground-breaking work of Michael Bothe), environmental law (again Michael Bothe), Law of the Seas (Günther Jaenicke), and more recently human rights law, including the rights of national minorities and refugees (Rainer Hofmann and Stefan Kadelbach). In addition to that, there has always been a very keen interest in dealing with more general issues concerning the (legal) structure of the international community. This clearly dates back to the writings of Karl Strupp and, in particular, to the post-war period when Hermann Mosler held the chair of public international law. Although he already left Frankfurt in 1954 to become director of the Heidelberg Max Planck Institute (thus setting the ground for a truly impressive personal linkage between Frankfurt and Heidelberg as described by Bothe ) and published his seminal works when he was Judge at the International Court of Justice , he left behind the strong interest in these questions as reflected in the academic work of all his successors, in particular Michael Bothe, Armin von Bogdandy and currently Stefan Kadelbach. This interest ranges from more practical issues such as remedies in international law and procedural aspects of human rights protection to truly general issues such as positivism vs. value orientation. And, as Michael Bothe, shows there has always been a Frankfurt trend not to accept a pure positivism as the fundamental basis of international law but to integrate values: This can be found, albeit in a somewhat embryonic expression, in Strupp's approach, before it becomes quite important in Mosler's seminal articles in the mid- seventies and more recently in what Bothe calls Stefan Kadelbach's school on 'International Law as a Normative Order'; and indeed: an international legal system which would not be based on fundamental values and the quest for an international system based on the unambiguous prohibition of the use of force and the strict respect for human rights would run counter to the deeply held convictions of all those who have been and are teaching and doing research on public international law in Frankfurt.

2. Frankfurt's Contribution to European Law
Noting that, in contrast to public international law, the history of European law only begins to attract scholarly attention, Stefan Kadelbach sets out to show that there is a specific Frankfurt contribution to the devel-opment of European law. In order to do so, he starts by sketching the four phases through which European legal scholarship has gone: the founding phase of the fifties and early sixties was characterized by writings, authored by persons involved in the treaty-making process, on the founding treaties themselves; the second phase, starting with the van Gend& Loos and Costa ./. ENEL cases in the mid- sixties and lasting until the end of the eighties, was marked by the unfolding of the norm programme enshrined in the treaties, supported and put forward by an increasingly important role of the ECJ as the engine of integration and accompanied by doctrinal debates in which the federal ideal provided the leitmotiv for the scholarly discussion on the process of European integration; the third phase began with the foundation of the European Union and ended with what Kadelbach rightly describes as 'the failure of the treaty on a Constitution for Europe which was supposed to improve the political legitimacy of the Union by a new constitution-making process (Convent procedure) and, above all, by more parliamentary say in law-making' -a phase during which scholars addressed issues such as the (alleged) need for limiting the development of judge-made law or for increasing the democratic legitimacy of public power in Europe while at the same time dealing with the 'Europeanization' of wide aspects of private, administrative and criminal law; the present phase is indeed characterized by a widespread and strong feeling of a crisis of European integration notwithstanding (or closely related to?) the enlargement process of the previous decade, the consequences of the problematic entry into force of the Lisbon Treaty accompanied by the Lisbon Judgment of the Bundesverfassungsgericht and the still on-going 'Euro crisis'-to which one might add the profoundly shattered idea of European solidarity as witnessed in the context of the current 'refugee crisis' or the various scenarios envisaged as a result of a possible BREXIT.
During the initial phase of European integration, members of the Frankfurt faculty were closely involved in this process: While the essential role of Walter Hallstein (professor for civil and trade law 1946-1954) as secretary of state in the Chancellor's Office and later in the Ministry of Foreign Affairs and leader of the German delegation during the nego-tiations of the Treaty on the European Coal and Steal Community (ECSC) (from 1958-1967 he served as the first President of the European Com-mission) is public knowledge, the substantial contributions made, during the early stages of European integration, by Hermann Mosler who, in addition of being professor of public law from 1949-1954 served as head of the legal department of the Ministry of Foreign Affairs in the crucial years 1951-1953, Carl Friedrich Ophüls, Hans-Jürgen Schlochauer and Ernst Steindorff are much lesser known and deserve to be stressed. They, and Günther Jaenicke who joined the Frankfurt faculty in 1959, sought to find categories for the new structure of the EC which, at first sight, seemed to be part of international law as flowing from an international treaty but the introduction of supranational powers indicated the existence of a somewhat different body of law. In contrast to the ECJ which saw the ground for the normativity of supranational law on the domestic plane in the autonomy of European law, they found its basis in the founding treaties and parliamentary assent thereto-and, thus, conceived the EC as a new public power with features of a federal entity. Such a power, however, must be subject to constitutional constraints: the rule of law-and that is why the EC was (and remains to be) conceived as a Rechtsgemeinschaft.
During the second phase, scholarly interest focused on the conse-quences of this new legal order for the domestic legal system. In the Frankfurt context, this approach was personified by Manfred Zuleeg who served as professor from 1977-2003 (and as judge at the ECJ from 1988-1994) and analyzed these effects of EC/EU law on most areas of (do-mestic) law. Fully in the tradition of Hallstein and others, he conceived the EC/EU as a Rechtsgemeinschaft with federal features based on treaties serving as their 'constitution' while being in need for further steps to complete a true constitutional setting.
This idea of the need for a further constitutionalization of Europe was taken up and further developed, in the nineties and onwards, by Ingolf Pernice with his theory of multi-level constitutionalism, a model in which the constitutional orders of the Member States and of the EU are closely intertwined; the federal construction of the EU is built on a legitimacy of its own, a genuine kind of contrat social among the peoples of Europe. Also Armin von Bogdandy who succeeded Pernice in 1997 but left Frankfurt already in 2002 (to assume a directorship at the Heidelberg Max-Planck Institute and was succeeded by Stefan Kadelbach) developed his own theory of a supranational federalism. Both approaches result in a kind of 'Euro-peanization` of constitutional law, a process which, as Kadelbach rightly points out , could have been observed in many branches of domestic law such as labour and economic law, data protection law, environmental law, social law, and general administrative law, to be later followed by asylum and immigration law.
As most striking common characteristic among the various Frankfurt contributions to European law, Kadelbach identifies what he describes as 'a pro-European idealism rooted in constitutional law thinking'. The EC/ EU is considered to be a 'compound of public authority complementary to the member states' which explains the need to search for ways and means to counter its constitutional deficits and the answer found in its quality as Rechtsgemeinschaft with a strong reliance on federal paradigms. This approach might indeed contribute to overcoming the present crisis of European integration; or, as Kadelbach puts it: 'The contractually agreed pluralism, free of national obstinacy, among equals in a community of law with safeguards against abuses of power of all sorts, as it was sketched out by different generations of European constitutionalists and economic lawyers, can still serve as the guiding idea'.

III. The Futures
While the contributions in the first section of this publication are con-cerned with the past, and more precisely with the past of public inter-national law and European law in Frankfurt, the second section assembles contributions looking into the future of these branches of law-and necessarily not in Frankfurt but worldwide: Martti Koskenniemi presents, on the basis of a short and concise history of public international law theories, his very own ideas on the future of public international law for which he sees an urgent need to overcome its instrumentalization within the process of globalization as a tool of 'global wealth extraction' instead of an instrument for shaping a 'better future for all-not then, but now' ; he is followed by Joseph H.H. Weiler who develops, modifying the title of his famous critique on the European Court of Justice's jurisprudence on human rights , his thoughts on Europe's future by looking at Europe's values, at the 'spiritual condition of Europe and the role law plays in shaping it.' Finally, Ingolf Pernice is concerned with the Internet-obviously a most essential factor in the current development of the inter-national political (and legal) order-and the impact it might have on the future of international law: He sees it as a means to develop a system which would eventually allow for the participation of all persons actually affected by global decision-making in that decision-making process and would, thus, contribute to the establishment of a system 'taking people seriously'. While all three of them look at different aspects of inter-national and European law from different perspectives-one thing they have in common is that they all deal with the (potential) role of inter-national law beyond the (boundaries of national) state(s) and, thus, with the actual future of international law as 'law beyond the state'.

1. International Law's Future-Yesterday, Today, Tomorrow
In his contribution, Martti Koskenniemi wants to 'examine the historical dynamic that lawyers have presumed underlies the process towards future unity' including a study on the 'views about the international world involved', and the 'legal theory and the institutional mechanism assumed to bring about that future'.
As one would expect Koskenniemi to do, he looks at the history of international law the emergence of which he dates back to the 'European encounter with indigenous communities in the context of 16th century colonial expansion'. The first phase of international law development, starting with Spanish theologians-lawyers such as Francisco de Vitoria adapting Thomas Aquinas' doctrinal thoughts to the current needs of Spanish colonialism, encompassing the later fundamental additions and modifications to the theoretical foundations of international law by such eminent lawyers as Hugo Grotius and Samuel Pufendorf, and ending with Immanuel Kant's 'influential teleology on peace and republicanism', remained dominated by the 'weight of natural law'. The second phase, beginning with the French Revolution and ending with the outbreak of World War I, was characterized by the 'Rise of Professional International Law' which meant that 'international law was not about realizing contested futures but about coordinating state behaviour through diplo-macy' , or, as Lassa Oppenheim wrote, that international law was a law 'between, not above, the single states', a regulatory technique available to nations; nonetheless there were, as Koskenniemi rightly observes, some authors who, while accepting that international law emanated from the will of states, thought that such will was determined by 'an underlying pro-gresssive history pointing to an increasingly united world'.
However, the outbreak of World War I, and the horrors it implied, led to the abandonment of the previously predominant idea of international law as a mere tool for diplomacy among states. There was a widespread understanding of the need for permanent institutions with appropriate institutional design. And so there was a 'turn to institutions', notably the League of Nations with its Covenant which was seen by some as some kind of 'highe



According to Koskenniemit, the present situation of international law might be well discussed taking as example the debates concerning TTIP, or more specifically, the public interest in Investor-State arbitration (ISDS). He sees this as a conflict between international law targeted to produce 'wealth' against international law to protect, inter alia, the environment,
Contents6
Law Beyond the State—Pasts and Futures: An Introduction (Rainer Hofmann)8
Public International Law in Frankfurt (Michael Bothe8