In its judgement from June 27, 2001, in the LaGrand Case (Germany v. United States of America), the International Court of Justice made a number of watershed rulings: (a) The Court established that Article 36(1) of the Vienna Convention on Consular Relations creates individual rights for foreign nationals abroad, and not just rights protecting the interests of states that are a party to the Convention; (b) The Court ruled that, beyond the undisputed failure on the part of the U.S. to take the measures required by the Convention, the application of an American provision of criminal procedure in the LaGrand brothers' cases (a provision that prevented the domestic courts from reviewing the implications of the Convention violation admitted by the Americans) itself constituted a violation of Article 36(2) of the Convention; (c) The Court, as a remedy in the case of future violations of the Convention, ordered the United States to provide a procedure for the review and reconsideration of convictions secured in circumstances in which the obligations of the Convention had not been observed; and (d) as a separate matter the Court ruled that its provisional orders, issued pursuant to Article 41 of the Statute of the International Court of Justice, have binding effect.

In one of his speeches the President of the United States of America took the responsibility to free the world from all globally operating terrorist groups. Honestly, is a realistic end to such a task foreseeable? Or does the former Operation „Infinite Justice”, which was recently renamed „Enduring Freedom” lead to infinite or enduring war?

The 1998 Human Rights Act (HRA) has incorporated the European Convention of Human Rights into English law. Undoubtedly, it constitutes a very important event since it purports to create a new system of rights protection. In order to achieve this aim, the act also introduces some norms empowering the courts to review acts of the legislative and executive branches. The main vehicle for this provision is Section 3 of the Act, (1) which establishes a presumption of compatibility between national legislation and rights laid out in the articles of the European Convention on Human Rights (ECHR). Such a presumption requires courts to systematically attribute to legislation and executive acts the meaning that is most consistent with the protection of rights. Article 3 has been very controversial, (2) particularly concerning the scope of the power it attributes to the courts.

German Law Journal reported last November on the German Government's plans to take the extraordinary move of seeking a constitutional ban of the extreme right-wing National Democratic Party of Germany. At the end of January, 2001, the Federal Government filed its motion for a ban of the NPD with the Federal Constitutional Court in Karlsruhe. At the end of March, 2001, the Bundestag (Federal Parliament) and the Bundesrat (Federal Legislative Chamber of the States) followed with separate motions. The Federal Constitutional Court now has before it three separate actions, raising distinct claims and presenting distinct evidence, seeking the constitutional excommunication of the NPD. The motions present a unified front from every political sector of the German constitutional order: the executive, the legislature and the Länder (federal states). This lock-step approach to the effort to ban the NPD was part of the master-scheme of Federal Interior Minister Otto Schily, who pressed hard to gain support for the move to seek a ban from all mainstream political parties and all the Länder, at least in part to limit the political fall-out in the case that the Constitutional Court finds against the motions.

The Second Senate of the Bundesverfassungsgericht (Federal Constitutional Court) heard oral arguments on June 19, 2001, in the “NATO Strategic Concept” case. The parliamentary fraction of the Party of Democratic Socialism (PDS) in the Bundestag (Federal Parliament) brought the case to the Federal Constitutional Court as an Organstreitverfahren (dispute between federal organs), which permits one federal organ (in this case, the Federal Parliament as represented by one of its party fractions) to challenge the constitutionality of an action taken by another federal organ (in this case, the Bundesregierung [Federal Government - executive branch]). The Federal Government consists of a parliamentary coalition between the Social Democratic Party (SPD) headed by Chancellor Gerhard Schröder, and the Alliance 90/the Greens (Greens), whose most prominent figure in the Federal Government is Foreign Minister Joschka Fischer.

In a grand decision handed down in February, the Bundesverfassungsgericht (Federal Constitutional Court - FCC) held that a marital agreement was unconstitutional, by which a woman resigned, in the event of an eventual divorce, any allocation for her as well as for her son. The Court concluded that the agreement violated both the constitutional provisions pertaining to the protection of the family and to that of the child. The Court upheld the law that prohibits a parent from disavowing claims to the support allocation for a dependent child, but went further in declaring that, by having been led to sign a marital agreement including the surrender of claims to financial support of such drastic degrees, the contracting woman suffered nothing less than a violation of her constitutional rights. According to the Court, this agreement constituted a violation of the rights of the child at the same time, as the bleakness of the mother's financial situation was seen by the FCC to prevent an orderly and safe upbringing of the dependent child.

There are a few premises underlying this discourse on the relationship between constitutional law and European human-rights law which I should reveal before we explore the relationship itself. I start with a functionalistic designation of the general legal process as being no more (and no less!) than a conflict-resolution process. From this perspective, the most important of my starting premises is what I consider to be an empirical fact, that is to say that the constitutional courts now produce jurisprudence(2) overtly and explicitly transcending the Enlightenment's illusion of complete separation between the competencies of the legislative and judicial branches of power.

A German law known as the Stromeinspeisungsgesetz (Law on feeding electricity from renewable resources into the public grid) requires producers of electricity to purchase (at a fixed, minimum price) and pass along to electricity distributors energy produced from renewable resources in the producer's area of service. (Bundesgesetzblatt (BGBl. [Register of German Federal Law] 1990 I, p. 2633). As required by Article 88 of the Consolidated EC Treaty, the German government notified the Commission of the European Communities of the law's state aid provisions in 1990, and received authorization for those provisions from the Commission. The Commission concluded that the law was consistent with the energy policy aims of the European Communities and that its impact on the industry would be slight.

Few Americans have heard of either Karlsruhe or its courts, the Bundesverfassungsgericht (Federal Constitutional Court) and the Bundesgerichtshof (Federal Court of Justice). Moreover, American lawyers who walk through the unique, Enlightenment-era city center of Germany's seat of justice may be surprised. Karlsruhe's streets are neither the twisting, medieval alleyways of travel brochures that extol Europe's charms nor the grand, straight avenues of Berlin. They are evenly spaced spokes of a rational planner's superimposed wheel. When American lawyers approach the Federal Constitutional Court (FCC), they find a further surprise: The court inhabits a modest, modern building. This unimposing structure is stunningly different from the U.S. Supreme Courts massive marble temple on Washington's unmistakably imperial Capitol Hill. The German court sits quietly, unobtrusively between gardens and lawns around a palace that long ago ceased to be a center of political power. Except for the handful of armed guards, one could easily mistake the court for an ordinary office building or part of the local university.

Suggested Citation:German High Courts Confront Serbian War Crimes, 2 German Law Journal (2001), available at http://www.germanlawjournal.com/index.php?pageID=11&artID=64 In two recent decisions the German federal courts engaged in the interpretation and application of international criminal and humanitarian law, pursuant to the codification of those norms in German criminal law. Both cases involved appeals of convictions secured in lower German courts against Serbs who participated in the atrocities of the Serbian ethnic-cleansing (perpetrated against Bosnian Muslims) in the then newly independent Bosnia-Herzegovina.

[1] In his speech at the Humboldt University in Berlin, 12 May 2000, Joschka Fischer described the expansion of “reinforced cooperation” as a necessary first stage to Europe's further development. He pointed out that, with the tool of closer cooperation, those states desiring to cooperate more closely than other member states of the European Union could make progress in many areas like environmental protection, the fight against crime, the development of common immigration and asylum policies and on foreign and security policy. As a model for a successful “reinforced cooperation” he mentioned the Economic and Monetary Union and Schengen. Although he did not want the closer cooperation to be misunderstood as the end of integration and consequently the preliminary stage to a divided Union, he further underscored the concept by proclaiming that this step would constitute the formation of a “center of gravity.” Such a group of states should conclude a new European framework treaty, would develop their own institutions and establish a government that speaks with one voice within the European Union. This proclaimed “center of gravity” should be the avant-garde, some kind of driving force for the completion of political integration.

Just over a year ago, in the Spring of 2000, a Government Commission entitled \“Corporate Governance - Unternehmensführung (corporate management) - Unternehmenskontrolle (corporate control) - Modernisierung des Aktienrechts (Modernization of corporate law) and consisting of a group of selected lawyers and business practioners from the banking and insurance industry, took up the task of engaging in an in-depth analysis of the structure and challenges of \“German corporate governance.\” The Commission\'s work has drawn to an end and its 300 page report was presented to the public on July 10, 2001. It is German Law Journal\'s privilege to provide its readers with the first-hand insights of the Chair of the Commission, Professor Theodor Baums of the University of Frankfurt\'s Institute of Banking Law. In his discussion with GLJ, Professor Baums addressed specifics of the Commission\'s Report as well as the heritage of and the future prospects for German corporate and capital market law.