Leonard F.M. Besselink

The constitutional duty to promote the development of the international legal order: the significance and meaning of Article 90 of the Netherlands constitution *

The government has the duty to promote the development of the international legal order, says Article 90 of the Netherlands Constitution. Although somewhat similar provisions occur in other constitutions, only the draft Constitution of the European Union contains an identical provision. This essay analyses the precise meaning of the constitutional duty in the Netherlands. It traces the history of the relevant provision and sketches how it developed from a provision on the use of peaceful means for settling international disputes into a general provision on the duty to promote the development of the international legal order. The meaning and content of the duty contained in this provision is distinguished by analysing the overlapping twin notions of abidance by versus promotion of international law, of international society and the international legal order, of serving international and the national interest, and by discussing the attributive versus the regulative nature of Article 90 of the Constitution. The case-law on this provision is discussed separately, and describes the development from reviewing the compatibility of state action with public international law to considering it a programmatic provision with limited justiciability. In its dynamic function, focussing on promoting the development of an international legal order, the provision has a critical, exhortatory function; it does not regard actual facts, but is about desirable futures. It should foster discourse about the structural weaknesses in the present political and legal international order and should highlight the discussion on whether certain policy choices actually promote the latters development.

National constitutional avenues for further EU integration

This study investigates national constitutional limits to further EU integration and explores ways to overcome them. It includes an in-depth examination of the constitutional systems of 12 Member States (Croatia, the Czech Republic, Estonia, Finland, France, Germany, Hungary, Ireland, Italy, the Netherlands, Poland, and the United Kingdom) and a bird’s eye view of all Member States. EU integration can be advanced by avoiding substantive constitutional obstacles in various ways.Overcoming the substantive obstacles requires managing national procedural constitutional hurdles. This is possible to the extent that the required broad political consensus exists.

Editorial: A Constitutional Moment: Acceding to the ECHR (or not)

The Court of Justice of the European Union has spoken: accession to the European Convention on Human Rights on the terms specified in the Draft Accession Agreement incompatible with Union law as it stands and as established by the Court of Justice. Few really expected this outcome - all the more since the Court had put its stamp on some essential elements in the negotiations, by an unprecedented and increasingly explicit institutional intervention in the lead-up to the draft accession agreement - or should that have been a warning? The decision whether to accede to the EECHRis not for the Court to determine. This is ultimately for the member states to decide, either qua members of the Council as the EEUtreaty-making power, or member states as masters of the EEUTreaties in the framework of the amendment procedure - this follows from Article 218(11) TTFEU(though the European Parliament and Commission will inevitably be involved in both instances)

A Constitutional Moment: Acceding to the ECHR (or not)

The Court of Justice of the European Union has spoken: accession to the European Convention on Human Rights on the terms specified in the Draft Accession Agreement incompatible with Union law as it stands and as established by the Court of Justice. Few really expected this outcome - all the more since the Court had put its stamp on some essential elements in the negotiations, by an unprecedented and increasingly explicit institutional intervention in the lead-up to the draft accession agreement - or should that have been a warning? The decision whether to accede to the EECHRis not for the Court to determine. This is ultimately for the member states to decide, either qua members of the Council as the EEUtreaty-making power, or member states as masters of the EEUTreaties in the framework of the amendment procedure - this follows from Article 218(11) TTFEU(though the European Parliament and Commission will inevitably be involved in both instances)

A constitutional moment. Acceding to the ECHR (or not) (Editorial)

The Court of Justice of the European Union has spoken: accession to the European Convention on Human Rights on the terms specified in the Draft Accession Agreement incompatible with Union law as it stands and as established by the Court of Justice. Few really expected this outcome - all the more since the Court had put its stamp on some essential elements in the negotiations, by an unprecedented and increasingly explicit institutional intervention in the lead-up to the draft accession agreement - or should that have been a warning? The decision whether to accede to the EECHRis not for the Court to determine. This is ultimately for the member states to decide, either qua members of the Council as the EEUtreaty-making power, or member states as masters of the EEUTreaties in the framework of the amendment procedure - this follows from Article 218(11) TTFEU(though the European Parliament and Commission will inevitably be involved in both instances)

On the 'Lissabon-Urteil': democracy and a democratic paradox

The Bundesverfassungsgericht was castigated for the Maastricht-Urteil by most European lawyers, especially the Germans among them. But that judgment has placed its stamp on much of the constitutional development of the Union and has allowed theories of constitutional pluralism, polycentrism, multilevel constitutionalism, Verfassungsverbund and the constitution composee to flourish. The German constitutional court is likewise being castigated for its Lissabon-Urteil. Certainly, it has put the questions of democracy, the level at which democracy is to be aggregated and articulated, and the pertaining institutional arrangements in the member states and in the Union higher on the agenda of intellectual and political engagement than they have been over the last decades. Perhaps it will be just as fruitful for European constitutional theory as the Maastricht-Urteil was.The Bundesverfassungsgericht was castigated for the Maastricht-Urteil by most European lawyers, especially the Germans among them. But that judgment has placed its stamp on much of the constitutional development of the Union and has allowed theories of constitutional pluralism, polycentrism, multilevel constitutionalism, Verfassungsverbund and the constitution composee to flourish. The German constitutional court is likewise being castigated for its Lissabon-Urteil . Certainly, it has put the questions of democracy, the level at which democracy is to be aggregated and articulated, and the pertaining institutional arrangements in the member states and in the Union higher on the agenda of intellectual and political engagement than they have been over the last decades. Perhaps it will be just as fruitful for European constitutional theory as the Maastricht-Urteil was.

Defence: Old Problems in a New Guise?Article 17 ff. EU Treaty; Article I-40 and III-210 ff. Draft Convention

While the Nice Treaty cast a shadow over the Convention’s work on the institutions and led to the project’s first failure in the Brussels Summit, the war in Iraq cast shadows over the common foreign and security agenda. On the one hand, it proved the extent to which Europe is divided over substantive positions and over the means to act, particularly the resort to war. On the other hand, there is an increased popular sense that Europe should play a role (reflected in Eurobarometer polls, including one especially commissioned by Giscard). Article I-40 of the Draft Constitution on defence reflects that ambition. It remains to be seen whether this facilitates Europe to unite when it comes to giving foreign policy teeth in the form of a real and effective common ‘defence’ policy. As with most other provisions of the Constitution, Article I-40 in the main builds on and consolidates the texts as we already have them in the existing Treaties, but at the same time, it innovates.

Cynicism, Scepticism and Stoicism: A Stoic Distinction in Grotids' Concept of Law

It is a risky enterprise to speak in general terms about ‘Stoicism’ or of something being ‘Stoic’. Old, middle, late and neo-Stoics (Zeno, Cleanthes, Chrysippus, Panaetius, Poseidonius, Marcus Antonius, Seneca and then elements in Christian and early modern authors going up to the 17 century) somehow seem to merge into one indistinct stream of thought. The fragmentary nature of what we know about the ancient Stoics contributes to this. However, it is somehow unavoidable to speak in shorthand, particularly when we discuss an author from within a humanist tradition like Grotius. In this paper I focus on an issue which is considered to be typically ‘Stoic’. It is the distinction in Stoic ethics between the good and the evil, and of the other things which in the perspective of absolute good and evil are indifferent, such as health or sickness and wealth or poverty. This characteristic distinction is in its full details and consequences, itself the object of a considerable amount of uncertainty. This is mainly due to the distinction within the category of indifferent things between certain things which are “preferred” and other things which are to be “rejected” (and some truly indifferent things), according to the value they have. The precise relation between “preferred” things and “good” things has been an object of some controversy. To mention one source contributing to confusion, according to Diogenes Laertius (7, 103), Posidonius is supposed to have held that health and wealth are among the goods and not merely among the things which are of value. This is a most important issue, for it highlights the crucial relation between the moral good and the preferred things within the category of indifferent things. Here it suffices to have traced this ‘Stoic’ distinction in order to be able to see it recurring in Grotius’ work, mainly in his distinctions within the concept of law, or rather the concepts of law, ius. In particular, I wish to draw attention to the issue of “intermediate things” and the related concept of “middle justice” in this context, which are the terms which Grotius, building on Ciceronian language, employs for the group of indifferent things, the adiaphora of the Stoics.