In 1973, Hans Blix and Jirina Emerson edited the Treaty Maker’s Handbook to help newly emerging States appreciate, post-decolonization, the intricacies of treaty-making as a matter of both domestic and international law. One of the work’s lasting legacies was the inclusion of sample provisions drawn from existing treaties on various treaty topics such as participation, entry into force, reservations, and amendments. The volume became a staple among treaty negotiators, and continues to be used today even as it becomes increasingly dated.

With due credit given to Blix and Emerson, one of the key features of my forthcoming book – The Oxford Guide to Treaties is a new set of treaty clauses. The volume includes 350 clauses taken from an array of existing treaties on 23 different treaty issues, such as the various ways treaty clauses may define a treaty’s object and purpose, delineate territorial and extraterritorial application, identify a treaty’s relationship to other treaties, or authorize simplified amendment procedures.

I found some of these clauses the old fashioned way, using multi-volume hard-bound sets of books like those edited by Bevans or UST (the US Treaty Series). But, far more often, I did my research on-line. As a result, I’ve now become a bit of a connoisseur of treaty databases. For years, a new major, multilateral treaty meant a new web-site dedicated to that treaty, which invariably includes its text and other relevant documentation (Final Acts, Records of the Meeting of the Parties, etc.). Bilateral treaties have long been much harder to track down. Today, however, States and International Organizations (IOs) are increasingly making all their treaty commitments publicly available on the Internet. In some cases, these treaties are organized in multiple ways, not just chronologically, but also by party, specific treaty features, or even, in a few cases, with full-text search capabilities. As a result, almost every treaty now ends up on a web-site somewhere. This development is a welcome one for both practitioners and scholars. Practitioners can now easily access texts that may implement the relative rights or duties of their clients (whether States, IOs, corporations or individuals) while scholars can get a better sense of the full panoply of modern treaty practice, whether for purposes of isolating specific practices or testing propositions as part of the new empiricism in international law.

In a future post, I plan to offer my unabashed (but admittedly unscientific) review of some of the major treaty databases, including the good, the bad, and (sometimes) the ugly. For now, I wanted to pass along a listing of public treaty databases, figuring folks might appreciate having them all collected in one locale.  I’ve not listed databases where you have to pay to get the treaty text (I’m looking at you IMO) because I question why a treaty text negotiated among nation states cannot be publicly available at least in some form on-line.  I’ve also limited my listing to those sites in English, not because they’re better, but because my facility in non-English texts is less than ideal.  I would, however, welcome comments on additional databases with which readers are familiar in the hopes that this post might become a common repository for those interested in doing treaty research of one form or another. Following the jump, I’ve listed alphabetically (and with hyperlinks!) 24 treaty databases readers may wish to consider visiting in their future practice or research:

It won’t save his job, for reasons Julian mentioned a week or so ago, but it’s still good news:

Spain’s top court acquitted renowned judge Baltasar Garzon on Monday of abuse of power by trying to investigate Franco-era atrocities, in a case that exposed deep wounds dating back to the civil war.

Six members of the seven-strong Supreme Court panel came out in favour of acquitting the 56-year-old, clearing a major obstacle in Garzon’s efforts to revive a career which has been stalled by a string of court cases.

Garzon was accused of violating an amnesty by trying to investigate the disappearance of some 114,000 people during the 1936-39 Civil War and General Francisco Franco’s dictatorship that ended in 1975.

Garzon had argued that the atrocities were crimes against humanity and not subject to a 1977 amnesty voted through by parliament.

The court ruled that his decision to launch the probe was “a mistake” since there needed to be a suspect still alive, but that the move did not constitute an abuse of power.

“It is not possible in our procedural system to open an inquiry without the final goal of imposing a penalty,” the court wrote in its ruling.

[snip]

The court had agreed to try Garzon in a suit brought against him by two right-wing groups, despite a call from Spain’s public prosecutor for the case to be dismissed.

The two-week trial heard testimony from 12 descendants of people killed during the Civil War, who say their relatives lie in mass graves.

One witness, 75-year-old Olga Alcega, told the court how her grandfather was shot dead by Franco’s forces in 1936.

“Fear reigned this country. Nobody dared to speak out, it is up to us, the grandchildren of the victims who dare speak,” said Alcega, who attended the hearing dressed in black.

The origins of the case — and the public prosecutor’s stance — tells you all you need to know about its merits.  Whether international law permits amnesties for serious international crimes is a difficult question, but there was no justification whatsoever for prosecuting Garzon for investigating such crimes.

All is proceeding as my colleague Anna Gelpern has foreseen. Indeed. Years ago, she mentioned to me in passing that the markets seemed remarkably unaware, or anyway remarkably sanguine, about the question of whether local law (e.g., Greek law) or foreign law (e.g., English law) governed as the choice-of-law clause for the vast tonnage of European sovereign debt.  Today, we find the Greek government passing retroactive laws imposing collective action clauses and aggregation mechanisms on the very large proportion of its sovereign debt governed by Greek law.

Was this possibility priced into the bonds?  Or correctly priced-in? I myself find it hard to believe that it was, though without any evidence to speak of. But there are two excellent papers on these topics by Stephen Choi, Mitu Gulati, and Eric Posner that bear reading.  The first, last updated in March 2011, is “Pricing Terms in Sovereign Debt Contracts: A Greek Case Study with Implications for the European Crisis Resolution Mechanism”; the second, posted November 2011, is“Political Risk and Sovereign Debt Contracts.” (Thanks to commenter from my last sovereign debt post for reminding me of these.)

But one of the reasons for my (unsupported) intuition about pricing choice-of-law terms in European sovereign debt is simply my perception that the market (up until the sovereign debt crisis hit the newspapers) consisted of people for whom the issue was fundamentally interest rate risk, not credit risk.  So I was interested to see this post today at Zerohedge, attributed to Hypo Capital Management.  Ordinarily, I find Zerohedge a bit too edgy and conspiracy-theory oriented for my taste, but if the folks in this guest post have done the work they report here, I think it is quite interesting and important.

HCM say they have managed to walk through a sample of individual sovereign debt issuances, looking at debt covenants and choice-of-law clauses particularly, comparing local law and foreign law issuances.  They then plot these as yield-to-maturity against maturity, separating the local and foreign law-governed bonds to see whether there is a separation, for Greece, Italy, and several others.  Thus:

We did the unthinkable, read the unreadable and made it back alive to tell the tale: we ploughed through all of the individual bond prospectuses of our favorite list of countries in peril and actually found a lot of useful information for the investor. Given that the sovereign bonds of the Eurozone used to be looked at as riskless assets, it is safe to assume that the exercise hasn’t been done by a lot of investors on a regular basis. Judging by the difficulty to even obtain the information, both the interest of investors to obtain it and that of issuers and underwriters to provide it has been and remains extremely limited. [Emphasis added]

Well, good for them.  (I’ve since spoken with some market friends who tell me that others are busily doing the same exercise, but I don’t know what conclusions others have reached and haven’t had time to look.)  The countries they looked at were Greece, Portugal, Italy, Austria, Hungary, and Spain.  And their conclusion is, excepting Greece, there remains a potentially significant mis-pricing of sovereign debt, because prices continue to reflect the assumption that there is no important divergence created by choice-of-law clauses in the debt.  Which is to say, no political-legal risk in the countries listed above, apart from Greece, running to debt governed by local law rather than foreign law.  Which is also to say, the assumption of the markets continues to be that (excepting Greece) pari passu means pari passu:

In our view, the state of the crisis warrants a broad-based significant markup for investor-friendly prospectus language and we see trading opportunities in most of the countries we analyzed …. Establish selective long/short pair trades in maturity-matched foreign/local bonds, or go long foreign law bonds and hedge via CDS.

I have not tried to reproduce their graphs here; you can see them at Zerohedge.  Their broader comment is worth reproducing, however (emphasis added):

Relative illiquidity and low issuance sizes distort yields and spreads. Investors traditionally shunned foreign law bonds and piled into local law issues. This may seem puzzling at first glance, given the duration and severity of the crisis. We attribute this to the investor base: their thinking remains entrenched in traditional categories, namely interest rate risk as opposed to credit risk. Only when the threshold is clearly crossed -as in the case of Greece- does duration-based pricing make way for default-based pricing and a different investor base takes over. When Greece lost its last IG rating, it disappeared from the universe of EZ government bond managers and entered the realm of HY bond investors. Thus credit criteria began to matter and were being priced in. In our view, the state of the crisis warrants a broad-based significant markup for investor-friendly prospectus language and we see trading opportunities in most of the countries we analysed.

I am not sure I understand – or agree – with all their thinking here, however.  They say that investors shunned foreign law bonds and instead bought local law bonds.  Is that what the evidence (see their charts at ZH) or their deductive argument suggests?  It seems to me they argue that investors had reason to be, and in fact were, indifferent as between legal regimes governing the bonds.  That does not alter the conclusion that there might well be a mis-pricing opportunity as between foreign and local law bonds, but I don’t see that it arises strictly from a preference for one over the other, rather than indifference.

I don’t see how this is going to go as planned:

More than 160 German financial services executives are willing to come to Greece in order to strengthen the Greek tax mechanism, according to a report to be published in the German magazine ‘Wirtschafts Woche’ … The magazine cites German deputy finance minister Hans Bernhard Beus, who explains that a key factor is the knowledge of a foreign language – some of them speak Greek – while the return to active duty of retired tax collectors should not be ruled out. Many come from the state of North Rhine-Westphalia, whose finance minister, Norbert Walter-Borjans, compares Greece with 90s East Germany, noting that even the East Germans at the time were suspecious towards the West.

Those of us who have worked in development finance at the bottom-most level, with local companies and officials, understand that no amount of technical assistance can work in the face of entrenched resistance in the location.  Less so still when the perception is that it is all pain and no gain.  Tax collection, more than most activities of government, depends upon perceptions of legitimacy; the idea that a government can collect against serious popular will is far-fetched, and particularly so when it is perceived as being on behalf of foreign interests.

It is likewise hard to see the local Greek tax collectors as wanting to be in the service of foreign governments and banks it seems to me as likely that they will see it as their patriotic duty to help tax evasion as stop it.  The reference to East Germany seems to me especially perplexing; whatever the East Germans’ suspicions of their rich West German cousins, it was reunification and they were all Germans.  Surely no one actually thinks that the arrival of tax collectors masquerading as technical assistance will be seen on any side in this as European solidarity? Yes, one could say that the price of receiving more bailouts has to be, on any objective measure, reform of Greece’s public finances – and that this is objectively a form of European solidarity.

But I would have thought that the ability to deliver this kind of tough love requires that one have internalized – really have internalized – some sense of shared demos.  Not just separate societies happening to share a currency union.  What German technical assistance proposes to do is properly understood as the consequence of a shared sense of citizenship that can accept joint sacrifice, not the act that produces it.

What I most don’t understand, however, is the strategy by Germany and other EZ states.  They are not stupid, and all of these concerns have occurred to them, along with many more.  It seems unlikely that they would proceed in the face of such obvious objections without some reasons to believe it could work.  Or some form of Plan B.  But I do not see what it is; suggestions welcomed.

The Wall Street Journal’s “Heard on the Street” column yesterday made an interesting comparison between sovereign bonds and corporate bonds.  It pointed out that although in ordinary times, developed country sovereign debt is typically considered safer than corporate bonds of the same jurisdiction – the risk free rate of return, and the sovereign power to be able to tax, etc. – in extraordinary times, sovereign debt presents political risks not present in corporate bonds.

[T]he Greek debt restructuring is showing that in some ways, corporate-bond investors have more clout—and are less exposed to arbitrary actions—than their government peers. Greece is hoping bondholders will write off over €100 billion ($132.4 billion) of debt in a voluntary bond swap. But in an attempt to ensure the swap is completed, it is also introducing collective-action clauses in its bonds. That will mean that if enough bondholders sign up, even those that don’t will be swept up in the swap. Meanwhile, the European Central Bank has done a side deal with Greece that means its bonds are excluded from these clauses and thus won’t take losses. Unlike the International Monetary Fund, which injects new money to help fund a distressed country on the understanding its debt is ranked above other bonds, the ECB simply bought in the secondary market and then declared it wouldn’t take a loss. Its estimated holding of €45 billion of Greek bonds means that private-sector investors have to take deeper losses to make the numbers work.

No company can change the terms of its bonds retroactively, as Greece is able to do since over 90% of its debt is governed by Greek law. Any corporate borrower that tried to treat one of its existing bondholders more generously than others would get short shrift. Further, creditors have no recourse to sovereign assets in Greece, whereas in a corporate-debt restructuring, there are underlying assets—factories, stock, equipment—that ultimately can be seized and valued. If corporate bondholders convert their debt into equity as part of a restructuring, they then have the power that equity ownership confers: They could demand new management. Greek bondholders can’t demand a new Greek government. There is no such thing as sovereign equity. That makes corporate bonds look safer in some situations than government debt.

The article goes on to point out that the markets are valuing some Portuguese corporate bonds in exactly this way – as less risky than Portuguese sovereign bonds.  Of course, the traditional method of imposing political risk was simply through inflation and devaluation, which is not available to EZ members unilaterally – so the emphasis turns to retroactive imposition of collective action clauses and such mechanisms.  But via Fabrizio Goria’s Twitter feed, we can take a look at a number of samples of collective action clauses with aggregation mechanisms, via a useful document prepared by Cleary Gottlieb.  It simply offers a sample of the language found in various prospectuses from the last ten years or so, including Argentina, the Dominican Republic, and other places – very instructive reading.

In addition, Goria also points us to a useful short article at Bepress, by Joy Dey from 2009 – useful primer to the issues involved.  Of course, my colleague Anna Gelpern, plus Mitu Gulati and several others, have been writing extensively on these questions, posted at SSRN and elsewhere. Talking about this occasionally with Anna Gelpern, I always wonder to what extent the fact of Greek law controlling most of the bonds rather than English law was considered at all, let alone rationally priced in.  The WSJ column ends with the observation that the safety of sovereign bonds was always considered the power to tax.  As the EZ sends special envoys to monitor Greece’s fiscal posture, the ability actually to collect the taxes levied looks rather in doubt.  No amount of legal or financial engineering, it would seem, creates the ability for foreign tax collectors to collect what the Greeks themselves have never been willing or able to collect.  As Reinhardt and Rogoff observed in This Time is Different, in sovereign debt crises, it is the control exercised by the local government in response to local stakeholders that causes it to favor local interests over foreign ones – no matter what the pieces of financial paper say.  It is unlikely that in Greece, this time will be different.

The New York Times Magazine has a story that is oddly depressing, on the one hand, and counter-intuitively optimistic, on the other – a report by Russell Shorto called simply, The Way Greeks Live Now (February 13, 2012).  At the macro-level, things look unremittingly bleak; even if the latest deal reached last night holds, I don’t think anyone believes it does more than kick more cans down the road in the Eurozone.  At the micro-reportorial level, the situation is complex, as Shorto explores in his interviews.

Vafiadis is 56 and has spent his life in construction. For the last 10 years, he has been a site supervisor for a company called Archi-Tek, overseeing the building of big, mostly government-sponsored projects like schools and museums. At its height, the company had 50 people on staff and employed about 900 contract workers. Today it has two employees: engineers who are basically putting finishing touches on completed projects. All work in the Thessaly region, where the company is based, has dried up. Vafiadis was laid off in September, two years short of retirement. He took a drag on his cigarette and said, in a mud-thick smoker’s voice, “There’s no brightening in the future.” He was referring to both the Greek situation and his own. “I think things will only get worse.” ….

They have no savings, they told me, because when they bought their home in 2000, they used their life savings as a down payment. Plus they have two sons in their early 20s, both of whom they put through college. One son, Traianos, who studied electrical engineering, sat with us as we talked, and when the subject of fallback financial reserves came up, there was a sudden flurry of back-and-forth banter in Greek, tinged with tension and dark laughter. Eventually Traianos explained to me that his father’s sister died some years ago and left her savings to her two nephews: Traianos and his brother. “So now our children can start giving to us, for a change,” Petros Vafiadis said with a laugh. To which his son replied, with an edgy chuckle, “If things get harder, then we’ll give.”

The discussion turns to a traditional solution to economic crisis at the individual level – migration in search of work.  There is little question that a wave of educated, younger Greeks are looking to migrate and, as the article notes, perhaps repeating the out-migration of the 1940s.  But there are two differences, one being the out-migration of the most educated and younger workers:

As the economy implodes, young people are leaving Giannitsa. Traianos Vafiadis, who is 24, told me that of the group of six friends he has had since childhood, he is the only one with a job, and the others have all emigrated or are looking for work abroad. I heard over and over from young Greeks that they are painfully aware of repeating the cycle that most recently occurred in the late 1940s, when a great diaspora of young Greeks left the country for work. The crucial difference is that now well-educated young people — future doctors, teachers and engineers — are leaving, suggesting that what is taking place is the hollowing-out not only of an economy but also of a whole social system.

The second difference is demographic.  Even before emigration (which might, after all, furnish Greece with remittance payments), Greece had reached the point where 100 grandparents – today’s retirees – have roughly only 42 grandchildren.  The levels of productivity required of an economy to support that ratio of retirees to workers … well, the only country where it might work, I suppose, is Japan, provided they roboticize everything. So even after the bailouts, haircuts for creditors, and all else, the Greek economy would at best have a level of indebtedness that would tax an economy with a sizable, educated next generation, and functional public institutions.  And yet Shorto’s other interviews in the article – with the owner of a factory, and with the owner of a winery – exhibit much more optimism than one might have thought given the macro-problems, the riots and scenes of Athens burning.  I have doubts that the optimism is justified, partly from talking with several of my Greek LLM students, who are all looking to emigrate, but I’m sure Shorto is right in pointing to the immense variety of individually calibrated responses on the ground in Greece.

The response from the solvent part of the Eurozone at this point is mostly a shrug, based on a bet that Greece can be financially ring-fenced and that in any case, this is just throwing good money after bad.  Better that Greece leave the EZ, default, return to drachmas, whatever – the feeling at this moment, anyway, is that it won’t ripple onwards to the two key economies, Italy and Spain.  But I have questions about how easy it is within the EU actually to ring-fence Greece and its problems at the most human level.  After all, a large part of the EU’s point was to permit free movement within the EU, so to liberalize labor markets.  That’s one question – where are the emigrants from Greece planning to go to seek work?  Internal to the EU or beyond, Australia or the US or Canada?

A much bigger question, I suspect – I have not seen much written about this, but am pretty certain it is the subject of important private discussions within governments – is welfare migration internal to the EU.  Shorto’s reporting is focused on economic activity that is mostly within Greece – a exporting manufacturer whose basic raw material is Greek oak trees, and a small winery engaged in the export trade.  But there are many, many crucial things that have to come from outside of Greece, and they have to be paid for – presumably priced in euros or dollars.  When I shift away from the kind of activities that Shorto focuses on, and look instead at reporting on supplies in the Greek health system and state hospitals, it is easy to imagine the development of serious shortages of medicines and supplies, driven by a simple inability to pay for them.  At what point does it become a better idea for a retiree with health issues to move to a richer EU country?

I don’t know – as I often remark in these posts, I am not an expert in EU law, but think we need to talk more about the issues here.  So I would welcome informed or expert comments on the current condition of eligibility for welfare or social benefits, including medical care, internal to the EU at this point.  I’ve tried looking at some of this, but don’t count myself as expert, so I would welcome expert commentary.  And then this further question: suppose that welfare or medical migration is a serious possibility.  At what point does it become enough of a concern to Germany and other wealthy EU states to engage in Coasean bargaining and figure that it’s cheaper to pay Greeks to stay home? What is the current state of EU law on internal migration for work, on the one hand, and social benefits, on the other?  Is there any reason to believe that either of these two motives for internal migration could become sufficiently general to raise issues for the wealthier EU countries?

Update:  Thanks to Martin and EU Law Student in the comments for pointing us non-EU-law-experts to, first, the 2004 Free Movement Directive and, second, an article from 2006 by Kay Hailbronner on what development of the law of free movement and social benefits means in the EU.  To that let me add one additional resource – a new post, linking to useful documents in pdf, at EUtopia law blog, by Dr. Iyiola Solanke, on third country nationals, stationary Union citizens, and residency rights, including discussion of social benefits.  Again, I welcome informed comment on what this means in legal and practical terms for internal migration in time of economic crisis. And my thanks to Martin and others who  have commented.

One issue I don’t understand in the Greece-Eurozone crisis is the legal basis on which Greece can either be forced out of the Eurozone, or else can leave it voluntarily.  I’d be grateful if someone knowledgeable could explain in the comments, and give the relevant treaty references, for how the process works.  One reason I ask is that I thought I understood a year or so ago that leaving, voluntarily or involuntarily, was legally not quite as easy as many finance and economics folks seemed to think – entry was deliberately constructed on a one way door.  But maybe I just didn’t understand how the treaty law works.  So if someone could point to the legal process, even if it is just “by agreement of the parties,” I would be grateful.

The other question that arises here is why it’s a question.  I suppose there are two possible scenarios.  One is that Greece is ejected (whatever legally that means in the circumstances) but does not want to go.  Perhaps its citizens realize that they don’t want to lose their euros, or for whatever reason.  But France and Germany have had enough, and bring others with them in the Eurozone.  If Greece objects, what can it do legally?  Can it bring a case in, for example, the ECJ?

Alternatively, suppose that Greece takes the heavy-handed hint and agrees to exit, perhaps in exchange for some semi-golden parachute.  But perhaps Portugal or some other weak EZ country sees in this a precedent for getting kicked out itself down the road – other countries, for whatever diverse reasons, want to ensure that the EZ remains a one-way zone, once in, forever in.  Would one of them have the ability to bring a case in the ECJ or elsewhere, and on what grounds?  Or is all this juridically water under the bridge, because legally the situation is merely whatever the countries agree to?

(This is the second part of a guest post by Julian Arato, LLM candidate at NYU Law School; our thanks to him.  The first part can be found here.)

In my last comment, I said that the 2009 decision in Lisbon looms like a specter over the Eurozone crisis.  Let me explain a bit more why and how.

The key point is that in Lisbon the Court construes the entrenchment of Germany’s “democratic identity” in Article 79(3) as establishing two different types of limitations to German integration with Europe under the Basic Law: one relative and surmountable, the other absolute.  Everyone recognizes that Lisbon affirms limits of the first type, meant to protect democratic forms of government.  Less well appreciated is the Court’s assertion that the Basic Law includes limits of the second type, absolutely prohibiting any delegation that would irreversibly vitiate the sovereignty of the German state (meaning, more concretely, the ultimate ability of the German authorities to determine and interpret the nature and extent of German integration into Europe).

The first type of limit seeks to protect democratic participation in governance.  It takes the Solange model: integration cannot proceed if it would transfer significant power from German democratic authorities to European authorities that are insufficiently democratically accountable.  Solange-type limits are not absolute but relative: the FCC is willing to permit the transfer of powers from democratic national authorities to supranational authorities so long as the latter are sufficiently democratic, and offer suitable avenues for participation by the German people.  A potential delegation of power to Europe may breach this relative limitation of democracy today, in light of the oft-noted democratic deficit in the European institutions as we know them; but with adequate institutional reform, the Basic Law could permit the very same delegation of power tomorrow.

The critical move in Lisbon is the Court’s assertion of a deeper, absolute limit to integration.  The Court asserts that the German Federal Parliament must always retain “functions and powers of substantial import” as a matter of constitutional principle—irrespective of the level of democracy at the European level.  Under no circumstances can integration proceed if it involves a transfer of competences to Europe that would strip Parliament of sufficiently “substantial” power, nor if it entails the transfer of overly open-ended powers with the potential to similarly deprive Parliament in the future.  This absolute limit is meant to protect the political existence of the German people as such, within the sovereign German State.  The decision makes clear for the first time that the ultimate sovereignty of the German State can never be completely subsumed into a European federal State—to do so would breach the principle of democracy, protected from even constitutional amendment under Article 79(3).  And indeed, for all its language echoing Maastricht on reviewing for democracy, the Court admits in an aside that its review of European legislation according to the principle of democracy-qua-participatory/voting-rights is only a secondary constraint—a conditional limitation which sets “limits to the transfer of sovereign powers…which do not already result from the inalienability of the constituent power and of state sovereignty.” (Lisbon, ¶247 (my emphasis)).

To be clear: in the view of the FCC, as a matter of principle German authorities may not commit Germany to a federal state of Europe through normal constitutional amendment; as corollaries integration may not entail the delegation to European institutions of too many spheres of competence, overly broad and open-ended competences of any kind, and especially not the competence to decide upon the extent of their own competences (Kompetenz-Kompetenz).  (Lisbon, ¶233).  (more…)

English-language OJ readers are fortunate to have University of Connecticut’s Peter Lindseth spending the semester in Berlin as the Daimler Fellow at the American Academy, where among other things he is posting to the Eutopia law blog on various governance issues in Europe.  (As I indicated in my earlier post, I plan to concentrate on international economic law, governance issues, and international and comparative law issues – including ones like this one, EU governance, in which as a non-specialist, I plan to act as facilitator, raising questions.)  In a recent Eutopia post, Lindseth pointed to an interview in Der Spiegel with Udo di Fabio, outgoing member of the German Federal Constitutional Court (FCC).  The interview is fascinating, particularly as glossed in Lindseth’s post:

As readers of [Eutopia blog] know well, the FCC has played, and will continue to play, a critical role in defining the constitutional parameters of Germany’s role in the ongoing struggle to resolve the Eurozone crisis. The Court’s jurisprudence will necessarily loom large as long as Germany serves as the Eurozone’s paymaster, and as long as the Court insists, as a matter of domestic constitutional law, on two conditions related to that function: first, that Germany’s financial participation in any bailouts must be determinate and not open-ended (i.e., no Eurobonds or other instruments amounting to joint and several liability); and second, that the national legislature must, consistent with historically grounded yet evolving conceptions of parliamentary democracy, be given an effective voice in approving the extent of Germany’s financial participation. The FCC views these two conditions as essential to preserving Germany’s democratic sovereignty in the face of the evident functional demands of the crisis, even as the Court otherwise permits, indeed even encourages, further European integration. In the current environment, these parameters will be critical because the resolution of the crisis will almost certainly demand some very costly sacrifices by the German taxpayer.

A second post from Lindseth, following the French credit downgrade, asks two key questions about German governance institutions: (more…)

I had the good fortune yesterday to spend the afternoon at the Museum of Modern Art in New York. To my great surprise, I experienced my first encounter with treaties as art. A special exhibit on display through March 26, 2012 of the work of Sanja Iveković entitled Sweet Violence focuses on the plight of women in post-Communist political systems of Eastern Europe. As a feminist artist, most of Iveković’s work challenges the status quo, and that includes countries that refuse to adopt the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Among the installations was an arresting display of bright red leaflets thrown on the ground throughout the museum reprinting Amnesty International’s campaign to promote U.S. ratification of CEDAW.

Here’s a description of Iveković’s Report on CEDAW installation:

“The artist printed the document on red paper, mounted its cover page for wall display, and crumpled the remaining sheets into irregular balls and then scattered them around the perimeter of the gallery space. Visitors to MOMA are invited to pick up a sheet, discarded as such leaflets often are, and learn about the infringement of women’s rights.”

The leaflets strewn on the museum floor—combined with her other work on display such as Double Life and Lady Rosa of Luxembourg—are surprisingly effective at evoking a subtle disregard for women’s rights.

If you pick up one of the leaflets, you can read details on “myth vs. fact” about CEDAW.

As of April 2011, 186 countries had ratified CEDAW. The United States is one of only seven countries that have yet to ratify CEDAW, including Iran and Sudan. The United States has the dubious distinction of being the only country in the Western Hemisphere and the only industrialized democracy that has not ratified this treaty.

CEDAW: MYTH vs. FACT

MYTH #1: U.S. ratification of CEDAW would give too much power to the international community with the provisions of the Convention superseding U.S. federal and state law.

FACT: Treaties adopted in the United States are not “self-executing.” This means that legislation to implement any treaty provision would come before the House and Senate in the same way any other bill does. As with many international agreements, countries can express “reservations, understandings and declarations” in cases where there are discrepancies between the international convention or treaty and domestic law. U.S. law generally complies with the requirements of CEDAW and the Treaty is compatible with the principles of the U.S. Constitution. Where any differences do exist, the Treaty calls on states to take appropriate measures to progressively promote the principle of nondiscrimination. Such language upholds US sovereignty and grants no enforcement authority to the United Nations….

Wow! CEDAW at the MOMA. International law terms of art have become, well, art. A human rights campaign is on display at one of the great modern art museums in the world.

If you are in New York in the next two months, I recommend you visit MOMA and check out Sanja Iveković.

(Professor Kenneth A. Armstrong is  professor of European Law at Queen Mary University, London; this comment was posted in response to KA’s framing questions on European governance, and we are delighted to bring it up to the main page.  We welcome short or long comments on this topic; I’ll choose to bring some to general attention in a separate post; comments can also be emailed to Ken Anderson or, if you post in response on another blog, let me know and I’ll cross link.  Thanks to Professor Armstrong.)

At the risk of creating identity confusion between two Kenneths I thought I might offer some reflections on why the Eurozone crisis deserves to be analyzed as a governance issue and particularly from the perspective of public law.

Why is this a ‘governance’ issue?

A useful starting point is to think about the discourse which has surrounded reforms to EU economic governance in the wake of the crisis. There has been a lot of talk about the need for the ‘Community Method’ to makes its presence felt in this area. Analysts of EU governance have tended to view the last decade as a period of experimentation with modes and styles of governance beyond the traditional model of judicial and legislative governance. Indeed, economic policy coordination – as emulated in the employment and social spheres through the open method of coordination – has largely been understood as a more intergovernmental/transgovernmental form of governance. The mechanisms of monitoring and surveillance associated with economic policy coordination have typically been described as ‘soft’ while the ‘harder’ mechanisms for fiscal surveillance have been viewed as difficult to put in practice.

The emerging new economic governance architecture appears to ascribe a much more central role to supranational institutions like the European Commission and the European Court of Justice in monitoring and enforcing fiscal discipline. The adoption of the ‘six pack’ of legislative measures plays with the metaphor of a more muscular response at EU level in ways that places emphasis not only on the role of the Commission as the initiator of legislative responses but also the alliance between the Commission and the European Parliament in toughening up the legislative bargain.
Yet despite the apparent manifestations of the Community Method as a process for adopting a legislative response, the new economic governance architecture has not abandoned policy coordination as a technique of governance. Indeed, we can see both the diffusion of policy coordination – its use to control macroeconomic imbalances – and increased coordination of coordination – the ‘European Semester’ as a framework for streamlining fiscal and economic policy coordination.

All of which raises important questions as to the extent of the delegation of powers to supranational institutions as envisaged by a model of governance through the Community Method and its relationship to a variety of forms of executive governance given institutional expression in a range of intergovernmental forums – the European Council, the Euro Group, Euro Summits, the Council of Ministers – and infranational structures like the Economic Policy Committee. Not only is the crisis an issue of governance it is about the institutional design of the governance architecture.

What’s Law Got to Do With It?

There are good reasons for public lawyers to analyze EU economic governance.  In the work of public lawyers like Terence Daintith and Tony Prosser there is a rich public law tradition that sought to consider the constitutional position of the executive in domestic economic policy-making. The delegation of powers of budgetary surveillance to the Commission and the sorts of domestic changes being demanded in return for EU and IMF support to countries like Greece, Ireland and Portugal highlights the extent of external influence on what used to be a key sovereign domain of the national executive.

The domestic constitutional level is also a specific site for EU influence with the fiscal compact suggesting that Member States incorporate the kind of constitutional debt brake applied in Germany to other European states.

The domestic constitutional level is also a context shaping the modalities of the European response. The need to reform the treaties to make provision for a permanent European Stability Mechanism was driven by anxieties as to compliance of the temporary mechanism with the conditions laid down by the German Constitutional Court as to the constitutionality of the Lisbon Treaty ratification. The German Constitutional Court has also demanded domestic parliamentary safeguards to control the bailout funds. The European Union Act 2011 creates new requirements for a referendum in the UK on treaty change in a way that casts a shadow over future treaty negotiations.

The issues surrounding the adoption of a new treaty for the EU 27 or EU26 have highlighted the very important role to be played by EU lawyers in looking for potential solutions and raising potential problems with this form of enhanced cooperation between groups of states.

At a more conceptual level, legal scholars interested in new forms of governance or experimental governance have often suggested that there is a transformation in law underway driven by the limits of traditional constitutionalism and instrumental legislative intervention. The emerging economic governance architecture is an important testing ground for these sorts of claims.

The Relationship Between Economic and Social Governance

While there is an apparent intensification of economic governance in the EU, social policy coordination has been left in a state of flux. In the previous decade the EU experimented with the use of the open method of coordination as a means of Europeanizing domestic policies on social protection and social exclusion. The austerity measures adopted by states in the wake of the banking and debt crisis has real social consequences. And yet the EU has no clear vision as to whether there is a need for continuing social policy coordination. The mechanisms for fiscal policy coordination do not appear to be oriented towards any analysis of the social consequences of fiscal contraction. It is perhaps not too dramatic to argue that there is a crisis in EU social governance that is not just at the instrumental level of the future of the social OMC but at a deeper justificatory level – what role can and should the EU play in the social domain and how has its traditional justifications for intervention been affected by the economic crisis?

These are some initial thoughts and reactions to the questions you have posed. I look forward to seeing the discussion develop.

Last fall, I posted about possible governance effects of eurozone crisis on the EZ and, more broadly, the EU.  I raised questions not as an expert on European institutions, law, or governance, but as someone with a long interest in governance and legitimacy questions for the international system.  They elicited some very interesting responses, particularly from University of Connecticut’s Peter Lindseth (who blogs on these topics at Eutopia).  I also collected a number of noteworthy responses by email from other EU law scholars.

During the last few months, the sense of crisis has been so overwhelming, and the serial responses so rapid-fire, outside international economic law observers like me haven’t been able to to do much more than, well, monitor the Twitter feed.  Without wanting to say that the crisis has passed – it hasn’t – the pace of market events has eased somewhat for the moment, and perhaps now is a better moment to ask questions about the implications and meaning, if any, of the EZ crisis for governance of the EU.  Over the next few months, I propose to do that, and hope to persuade both fellow OJers with an interest in economic law and governance issues to weigh in – as well interested outside experts in law, economics and economic law, and governance both generally and the EU specifically.  I have general views on governance, to be sure, but in this question of the EU, I do not hold myself out as expert and see my role more as facilitator trying to frame questions for discussion.

I’d like to spark more discussion of international economic law, governance, international organization, and other such topics here at OJ.  I plan to blog much less here about national security and related questions during this upcoming year, and much more about these topics.  Feel free to raise issues in the comments, email me directly, or to offer responses at other blogs and forums to which I can link.  Meanwhile, what kinds of categories/questions might need exploring?  A few possibilities, no special order:

• Why is a crisis in the EZ a question of governance of the EZ at all – much less the EU?  Isn’t the euro just an economic and business tool, hugely useful in promoting efficiencies across the EZ, but not more than that?  The only relevant governance questions are those related to the economic, financial, and banking governance of specific EZ institutions, so why try to make it out as broader than that?  In any case, the “governance” issues involved are all essentially technical ones belonging to economists and finance specialists.
• What is the role of lawyers or legal academic in addressing the EZ crisis?  One possible answer is that it is surely very limited.  The role of lawyers is no more than that of “scribe,” putting into words policies that are necessarily established by other kinds of experts or by political actors.  Governance of the EZ lies in the hands of technocrats in economics and finance, or else in the hands of political leadership doing purely political things.  Lawyers simple give expression to arrangements established elsewhere.  What independent analytic role do lawyers or legal academics have?
• If lawyers have anything to offer beyond services as scribes, it is in a role “external” to the formation of the “best” policy, yes? No?  Lawyers can read the words of treaties, agreements, court cases, etc., that refer to the governance structures that are in place at this moment.  They might find limiting language (e.g., no bailouts of governments) or come up with enabling language or interpretations of governance documents.  But this role is “external” to the formation of best policy, either preventing or permitting on the basis of current governance arrangements.  It does not help analytically to determine the optimal policy.
• What is the role of legitimacy, trust, and shared expectations in channeling the crisis, responding to it, and in the landscape that succeeds it?  And is this not an area of peculiar analytic expertise of lawyers and legal academics, given that law shapes institutional structures that markets and market participants either trust or not?  Those institutional structures shape, constrain, or enable the legitimacy of the polices dreamed up by other kinds of experts – but without which, the policies cannot succeed, either with the markets or with the European populations that must live with them.
• In what ways, if any, does a Europe much more divided by its economic possibilities, much more visibly unequal across national borders, discover that its governance structures are altered, both at the national and EU level?  Will movement of goods, capital, and people remain as mobile as before?  Capital controls by countries facing the outflow of banking deposits, from Greece to Germany?  What about people?  Are there circumstances in which comparatively destitute southern Europeans move to richer countries – what about competition for jobs, but also what about welfare benefits?
• Is economic governance of the EZ truly divorced from non-economic governance of the EU?  If an argument for the euro was that it was an essential part of the glue of the European project, in good historical materialist fashion laying the economic base for superstructural institutions, doesn’t that imply the opposite if the glue dissolves?   What might this mean, if anything, for such institutions as the ECJ or the ECtHR and their role in “values” governance of the EU?
• Does the EZ crisis portend changes in the role of the EU as such in the wider world?  Reduced funding for foreign assistance by the EU and national governments and ever-more straitened national defense budgets? How might it affect the EU and its national governments’ relations with China (and Asia more broadly)?

There are other categories of questions, I’m sure, and I would be most interested in hearing them and adding them to the list for discussion.  But these are some that occur to me as someone who studies governance in the international community generally.  I hope we can explore them over the next few months.