Even in seemingly stable political communities such as the EU or the UK, secessionist movements regularly put forward their claims for independence. This poses a challenge for both constitutional and international law. The first challenge is that state creation is both political and legal. No right to self-determination or secession – even if it exists, which in most cases it does not – relieves a separatist movement of the duty to make and sustain their case politically. The second challenge is rooted the current substance of international law on secession. In 2022, the UK Supreme Court found that international law does not help Scotland’s case for independence. This illustrates the argument that international law on its own is not the main legal space in which secessionist pressures find accommodation. On the contrary, constitutional arrangements currently seem more important than international law. Continue reading
Due to Brexit, dispute has again arisen between the UK and Ireland over Rockall, a small rock in the North-East Atlantic Ocean, and its surrounding waters. On January 4th a Marine Scotland patrol boat stopped and boarded an Irish fishing trawler, forcing it to leave waters within 12 nautical miles of the rock. Scotland asserted the UK claim to Rockall in anticipation of Brexit and sent patrol boats to the area immediately upon formally exiting the EU legal order on January 1st. In response the Irish Ministers for Foreign Affairs and for Agriculture, Food and the Marine issued a joint statement saying they were engaging with Scottish authorities but that “there remains an increased risk of enforcement action being taken by Scottish fisheries control authorities against Irish vessels operating in the waters around Rockall at present.” Continue reading
Maximilian Steinbeis/Verfassungsblog: Das Impeachment-Verfahren gegen Donald Trump ist gescheitert. Welchen Schaden hat die US-Verfassung darüber genommen?
Mattias Kumm: Der Schaden ist erst einmal ein politischer. Die Entscheidung ist strikt nach Parteilinie gefallen, fast kein Republikaner hat für die Amtsenthebung gestimmt. Ein solches Verfahren wie das Impeachment kann, wenn es gut läuft, an einem konkreten Fall allgemein verbindliche Mindeststandards als Exempel statuieren. Diese Funktion hat das Verfahren jedenfalls nicht erfüllt, sondern nur die tiefe Zerrissenheit des Landes sichtbar gemacht. Continue reading
Imagine the following scenario: you are at a law library, searching for a German public law journal. You want to use it to marshal an effective argument about the German constitutional court. You start browsing bookshelves. After some minutes, a thought occurs to you that that this library is not located in Germany, but in Rome or Amsterdam. The journal you are looking for is, of course, published in German. Is it available at all? From the corner of your eye, you see German legal journals popping up. All is good.
With skepticism about international norms and institutions on the rise around the world, many commentators have argued that multilateralism faces an uncertain future. Major fractures have appeared in international legal order, including Britain’s messy divorce from the European Union and the United States’ controversial decisions to reject the Trans-Pacific Partnership, withdraw from the 2015 Paris Agreement and the U.N. Human Rights Council, and undermine the World Trade Organization (WTO) by sidestepping its dispute-resolution mechanism and blocking appointments to its Appellate Body. While the path forward remains unclear, for now many states are reassessing the strategic value of multilateral cooperation and are recalibrating their international commitments across a wide variety of contexts. Continue reading
Striving for clarity is one of the central tasks of a lawyer, at least so common wisdom tells. Whether lawyers interpret a statute, try to discern the ratio decidenci of a court judgment or seek to identify a norm of international custom, they look for a clear-cut, ideally brief and easily comprehensible underlying rule or principle, ratio or general logic that will present the solution to the legal question at hand. Continue reading
The question about the historical relation between international law and colonialism (and its legacy) has grown in relevance over the last twenty-odd years. Critical scholars speak of international law’s “complete complicity with the colonial project” – meaning the exploitation and domination of the global south. They point to the ‘dark side’ of the promises of ‘order’, ‘equality’, and ‘(world) peace’ inherent in the enlightened idea of the ius gentium europaeum.
It is important to point out that nineteenth-century contemporaries were already well aware of the relation between international law and colonialism but they did not look at it from a moral perspective. Continue reading