7.1 Introduction
Korea had only barely emerged from Japanese occupation during the Second World War when tensions between the newly independent Northern and Southern states began to rise. In 1950, Northern military forces crossed into the Southern area. Notified of the invasion, the UN Security Council acted promptly, quickly passing several resolutions that called on Member States to assist the (Southern) Republic of Korea to resist the invasion and establish a unified command under US leadership.Footnote 1 This decisive action was possible only because Russia had been boycotting the Security Council to protest the representation of China in the United Nations by the previous and now deposed Chinese Republican leaders. Jacov Malik, Russia’s representative, nevertheless, quickly realized the mistake of the boycott and returned to the Council, subsequently vetoing further actions. In this context, representatives of key powers, such as US Secretary of State Dean Acheson, sought to circumvent the Security Council by going through the General Assembly instead.
The result was the famous Uniting for Peace Resolution, adopted 52–5 on 3 November 1950. The Resolution represented not the first,Footnote 2 but the most explicit, invocation of a reserve competence by the Assembly. After affirming the Security Council’s primary responsibility to deal with issues of international peace and security, it set out an argument for why the General Assembly might address with issues ordinarily reserved to the Security Council in cases where the Security Council failed to fulfil its responsibility under the Charter due to a lack of unanimity.Footnote 3 Notably, the Assembly claimed for itself the authority to recommend measures to Member States, which would – unlike a Security Council Resolution – not be legally binding on them, but merely support and encourage intervention in line with the purpose laid out.
In doing so, the General Assembly in essence put forward an argument from failure – which was, however, blurred with emergency arguments as well as arguments about implied powers. Thus, the Peruvian representative in the Assembly debate argued in terms of emergency powers: ‘The Assembly’s jurisdiction is thus clearly defined; it constitutes what may be called the legal foundation for any proposal for convening the Assembly in case of emergency to deal with the exigencies of peace when the Council is paralysed.’Footnote 4 These early emergency arguments were often couched in moral terms, with failure resulting from an ‘abuse’ of the right of veto,Footnote 5 as the Brazilian delegate De Freitas Valle phrased it, involving ultimately a question of ‘light or darkness’.Footnote 6 Such moralistic arguments were, however, backed up by what were understood to be more ‘legal’ constitutionalist arguments, both in the debate itself and in the later scholarly literature. The then-US ambassador to the United Nations, Cohen, invoked domestic law analogies to argue for a competence of the General Assembly, drawing in particular on the doctrine of ‘implied powers’, as elaborated in the canonical US Supreme Court decision in McCulloch v. Maryland.Footnote 7 Notably, all this happened in a context where previous efforts to get rid of the veto power of permanent members had failed, though the practice of not treating abstentions as a veto had already been established.Footnote 8 The Resolution was thus part of broader efforts by the UN General Assembly to take on a more active role in light of the Security Council’s failure to do so.Footnote 9
7.2 Failure in International Law
The Uniting for Peace Resolution provides a straightforward example of an argument from failure in international law. But this is not the only international setting where we encounter arguments from failure, often combined with emergency arguments or arguments about implied powers and effective realization.
This is not surprising. Authority in international law, Nico Krisch argues, is best understood as a ‘liquid’ concept. International relations are shaped by a range of more informal institutions and soft law, leading to a range of different sites of governance and, frequently, a high degree of legal fragmentation.Footnote 10 Building on the deference model developed by international relations scholars, according to which authority constitutes ‘the ability to induce deference in others’,Footnote 11 Krisch explains that the key feature of liquid authority is its dynamic character: ‘The more liquid an authority structure is, the more its elements are in motion and the more difficult it is to pinpoint a site of authoritative decision making.’Footnote 12
This environment is unsurprisingly receptive to arguments from failure, which should in turn be understood as one important rhetorical mechanism and legal concept for shifting authority.
Add to this that the origins and legitimacy of many international institutions can be traced to their ability to fulfil certain tasks that states cannot realistically perform on their own. By shifting authority to the international level, Member States seek to coordinate their behaviour – and potentially that of other actors – to (better) achieve certain goals, including the avoidance and resolution of conflicts.Footnote 13 Even more than at the national level, effectiveness arguments are therefore hardwired into the DNA of international law. Indeed, the expansion of the powers of international organizations underwrote in many ways the ‘forming and reforming of modern states’ as ‘rational’ and efficient instruments of territorial governance.Footnote 14 This project of reforming domestic states with the help of international organizations could tap into a discourse of efficiency and rationalist reform particularly prevalent in the years after the First World War among American progressives, but also in many European circles.Footnote 15 To justify the necessary expansion of international organizations’ authority, a host of legal arguments were deployed. These included arguments about the need for flexible and purposive interpretation of relevant treaties, often rooted in a constitutionalist language, more specific arguments about implied powers, arguments about the need to contain crises and emergencies and, not least, arguments from failure.Footnote 16
7.2.1 Arguments from State Failure
One of the most famous examples for the role of failure as a trope in international relations is the discourse on ‘state failure’. This began with a now-famous article by Helman and Ratner in Foreign Policy in the Winter issue of 1992–1993, though it was based on much earlier practices and ideas. Helman and Ratner wrote: ‘From Haiti in the Western Hemisphere to the remnants of Yugoslavia in Europe, from Somalia, Sudan, and Liberia in Africa to Cambodia in Southeast Asia, a disturbing new phenomenon is emerging: the failed nation-state, utterly incapable of sustaining itself as a member of the international community.’Footnote 17
Originally a category of political science and political economy rather than law, state failure – and the related concept of an ‘unwilling or unable state’Footnote 18 – was never fully recognized as a legal concept in mainstream international law. Yet, it played an important role both in political and legal practice as a rhetorical device to strengthen the powers of international organizations as well as empower other states to act in ways otherwise not considered legal. No discussion of failure in international law would be complete without mentioning this line of argument. But what was meant by a ‘failed state’? Jones argues that ‘a “failed state” is one which is unable to perform a set of functions taken to be characteristic and definitive of what constitutes a properly functioning state: to maintain secure boundaries, ensure the protection and security of all of the population, provide public goods and effective governance, maintain law and order throughout the territory’.Footnote 19
Earlier uses of the idea of state failure in international law primarily occurred in the context of expanding the mandate of the United Nations to act. The concept also played an important role in granting the Security Council the authority to take actions under Chapter VII with regard to internal situations in the 1990s.Footnote 20 Intervention in such internal affairs had originally been considered outside the scope of the UN’s authority. Art. 39 of the UN Charter contemplates action only in cases of a ‘threat to the peace, breach of the peace, or act of aggression’, thus apparently envisaging situations involving at least two states. In a series of resolutions dealing with Somalia, Rwanda and, not least, Yugoslavia, the Security Council began to expand its authority to intervene. The first step in this regard addressed situations that, while internal, had effects on other states, such as refugee flows.Footnote 21 In later Resolutions, such as when dealing with the Somalian Civil War and ensuing mass starvation,Footnote 22 internal situations increasingly came to be accepted as a basis for intervention under certain circumstances.Footnote 23 Thus, in Resolution 794 (1992) dealing with Somalia, which was considered the paradigm for a failed state in the literature,Footnote 24 the Security Council spoke of ‘the unique character of the present situation in Somalia’. Being ‘mindful of its deteriorating, complex and extraordinary nature, requiring an immediate and exceptional response’, it argued that ‘the magnitude of the human tragedy caused by the conflict in Somalia, further exacerbated by the obstacles being created to the distribution of humanitarian assistance’ amounted to a threat to international peace and security and thus, according to the Security Council, justified Chapter VII measures. In the context of the law on the use of force, ideas of state failure thus served to justify interventions where explicit state consent was lacking or considered irrelevant since the government had essentially become one of many parties to an ongoing civil war and no longer exercised meaningful authority over its territory. The precise requirements for when such interventions would legally be justified remained, however, contested, as did the concept of state failure or failed states itself.Footnote 25
The most problematic use of the concept of state failure occurred in the context of the so-called unwilling or unable doctrine under Art. 51 of the UN Charter. It concerns the right of states to defend themselves against external aggression,Footnote 26 arising in response to the attacks of 11 September 2001.Footnote 27 The attacks had been planned by Al Qaeda, who were private actors on Afghan territory, without a legally relevant involvement of the Afghan government. The United States therefore found it hard to justify military intervention in Afghanistan on the basis of a right to self-defence under Art. 51 of the UN Charter as a matter of existing international law. US representatives argued that this situation was not acceptable and that a right of self-defence existed if ‘the government of the State where the threat is located is unwilling or unable to prevent the use of its territory for such attacks’.Footnote 28 State failure based on unwillingness or inability would thus trigger a right to self-defence. This claim has been severely contested in the legal literature,Footnote 29 but the Security Council in Resolutions 1368 and 1373 reaffirmed the existence of the right to self-defence in the context of terrorist attacks shortly after the attacks, providing in the latter Resolution for a broad, if vague, mandate to ‘take steps’ in response.Footnote 30 In the subsequent ‘war on terror’, state failure became a standard reference point for US foreign policy, as failed states were seen as safe havens for terrorist organizations.Footnote 31
Finally, arguments about state failure and dysfunctionality also played a role outside of the law on the use of force, in particular in the domain of development economics. The turn from modernization theory to a governance framework in the World Bank emerged partly amidst a widespread perception of governance failures in the late 1980s and 1990s, in the context of fragile or failed states.Footnote 32 Thus, ‘internal deficits’ such as corruption or inefficient domestic administrations were seen as obstacles that needed to be addressed in order for financial support to be provided.Footnote 33 So-called structural adjustment programmes, often pursuing neo-liberal policies, were meant to help with this task. This drove an expansion of the World Bank’s mandate beyond monetary politics to questions of the rule of law and related issues.Footnote 34
‘A root cause of weak economic performance in the past has been the failure of public institutions. Private sector initiative and market mechanisms are important, but they must go hand-in-hand with good governance – a public service that is efficient, a judicial system that is reliable, and an administration that is accountable to its public’, a World Bank Report argued, mainly with respect to African states.Footnote 35 As Sinclair shows, Ibrahim Shihata, the Bank’s vice president, and top lawyers assumed a key role in this regard. It is also in this context that we see a more constitutionalist framing of the argument emerging. It included references to the doctrine of implied powers and a broad purposive approach to the Bank’s mandate, according to which the expansion of the Bank’s role constituted a natural response to the frequent dysfunction, emergencies and, ultimately, failures of state institutions.Footnote 36 Dealing with questions of international development assistance, the idea of fragile statehood emerged as a new category, sometimes substituting for state failure. It still plays an important role today in grouping together certain states or situations for international policy-making in the interest of increasing efficiency.Footnote 37
7.2.2 Failure, Crisis and International Authority
This broader language of failure was part of a functionalist understanding of law within the United Nations, as sketched out in the academic literature by Sinclair, Orford and others. Anne Orford in particular has argued that we should understand the expansion of the powers of the United Nations in terms of its function to guarantee freedom and security, thus continuing the intellectual tradition associated with Hobbes and others.Footnote 38 International organizations, Orford argues, step into the shoes of nation states, and we should therefore understand the modern concept of the Responsibility to Protect not as a new thing, but rather as a ratification of existing UN practices as they emerged after the Second World War.Footnote 39
Orford’s emphasis on security as key to understanding the legitimacy of both modern nation states and the United Nations connects to Saptarishi Bandopadhyay’s recent work on the importance of disaster management to the formation of modern states.Footnote 40As Orford and Sinclair show, modern nation states were not unique in building their legitimacy on their ability to grapple with disasters and emergencies. A similar story can be told in the international realm about institutions such as the United Nations or the World Bank. Arguments about protection – sometimes framed in terms of arguments from failure – were part of broader efforts of these institutions to frame their own authority in constitutional terms. This authority in turn was entangled with their efforts to define and assist the creation of modern, efficient states. Not accidentally, modernization theory and later theories of governance would play an important part in framing proposals for an expanded role for the United Nations and its different bodies. In many cases, this kind of expansion was justified in relatively traditional legal categories, in particular on the basis of a broadly purposive interpretive approach to the United Nations’ powers, often coupled with constitutionalist imagery.Footnote 41 In other cases, actors invoked the more dramatic language of exception and of emergencies.Footnote 42 Thus, the General Assembly’s creation of UNEF in the Suez crisis, building on the Uniting for Peace rationale, was seen as an extreme and thus exceptional situation by Secretary General Dag Hammerskjold.Footnote 43 When the United Nations intervened in Congo, emergency rhetoric again surfaced, for example when Hammerskjold suggested to Cordier (…) that ‘At any time, you may face the situation of complex disintegration of authority that would put you in a situation of emergency which in my view would entitle you to greater freedom of action in protection of law and order. The degree of disintegration thus widening your rights is a question of judgment.’Footnote 44
Critical legal scholars have pointed to the neo-colonial language and ambitions of those wielding the language of state failure. Indeed, a contemporary reading of Helman and Ratner’s Foreign Policy essay, with its uncritical take on the post-war UN trusteeship system, combined with its call for more involvement in Africa by the great powers, will see it tapping into a now familiar broader discourse of efficiency and modernization with distinctly neo-colonial undertones. The very idea of a failed state is clearly modelled on a Western-centric concept of statehood that treats Western European states as paradigm cases for successful statehood, leaving relatively little room for different conceptions and forms of organizing public authority.Footnote 45 Moreover, critical scholars argue that even where the idea of state failure arguably corresponds to the facts on the ground, as in Somalia in the 1990s, the concept holds limited explanatory power and distracts from understanding the context and origins of that ‘failure’ rooted in colonial and neo-colonial policies.Footnote 46
7.3 Evaluating Arguments from Failure in International Law
What then should we make of arguments from failure in the international realm?
Our examples here speak again to the close relationship of failure arguments to emergency arguments, on the one hand, and to arguments about implied powers and efficiency, on the other. They demonstrate how the different concepts are tied together via the shared underlying logic of output-legitimacy, so prevalent in international law. And the more the exceptional character of the problem is emphasized, the less there is a need for implied powers arguments. The same applies in reverse: The stronger the argument for a broad reading of the rights or competences in question, the less there is a need to invoke an emergency/exception template. As we see here, arguments from failure incorporate elements of both. On the one hand, they are concerned with inter-institutional relationships and thus build on collaborative ideas of working together to achieve a shared purpose. On the other, they operate with a norm/exception distinction. All of this suggests that the framework developed in Part I remains relevant here, too. That said, in the international setting, arguments from failure encounter some specific challenges.
7.3.1 Separation of Powers
Because international organizations are not constitutional democracies, central elements of constitutional democracy, such as the separation of powers, have no clear equivalent here. This raises the question what happens when we encounter shifts of authority between different organs of one institution or among several institutions. Broadly speaking, the consensus is that the concept of separation of powers does not fit international relations or indeed even more constitutionalized international and regional organizations without significant adaptations.Footnote 47 Though international organizations may have courts, access is often not straightforward. Most importantly, there are no global legislatures comparable to national ones. The UN General Assembly is the closest analogue in this regard, but its powers, nevertheless, differ significantly from those of national parliaments. This also means that it is much more questionable whether the expectations and principles of mutual support and collaboration that we usually encounter in domestic constitutions exist here.
Yet, this is not to say that international law is free of conceptions of functional differentiation and mutual checks. Drawing on Christoph Möllers’ work,Footnote 48 Joana Mendes and Ingo Venzke have put forward a concept of relative authority to address legitimacy questions in international relations. Mendes and Venzke argue in essence that different actors and institutions can claim different forms of authority that need to be understood and conceptualized in relationship to each other, similar to the separation of powers in domestic states:
Different actors make different legitimacy claims with which they justify their authority. Authority is relative in this sense even on any single level of governance. In basic terms, the ideal type of judicial adjudication gains its legitimacy from the law that it applies, from party consent, independence, and impartiality. Its legitimacy bases are different from those assets that underlie the idea of legislation (representativeness, inclusion) or the idea of administration(competence, expertise). Specific actors feed different legitimacy assets into global governance.Footnote 49
Without fully importing the idea of the separation of powers, Mendes and Venzke suggest that three key forms of legitimacy are particularly important as a basis for allocating authority: the actor’s inclusiveness, its functional specialization and its capacity to protect rights.Footnote 50 The challenge, as Mendes and Venzke formulate it, is to determine which mix of these three sources of legitimacy is normatively required in any given instance of exercising public authority.
All of this suggests, on the one hand, that the normative stakes of arguments from failure may be somewhat lower in the international context, absent a clear expectation that particular institutions fulfil one particular function. But it shows also that considerations of legitimacy along the lines sketched above must play a central role. This suggests that our framework developed in Chapter 2 can still provide useful assistance in dealing with such arguments, though more needs to be said about its applicability, as I argue below.
7.3.2 Quasi-Constitutional Framework
More precisely, arguments from failure can only be deployed in a context where expectations of collaboration and mutual support and control have a place, similar to domestic constitutional systems. For shorthand, I call this a quasi-constitutional framework, but I am not tied to the term ‘constitutional’ as such.Footnote 51 What I mean is that the organization in question must be able to lay a credible claim to regulating a broader area of international law in a broadly comprehensive manner. It must, for that purpose, be equipped with institutions that are expected to work together towards their shared goal, albeit that they may each fulfil separate functions. In other words: There needs to be a sense of joint responsibility for a broader political project. Where such a framework is lacking, not only is standing in for others hard to justify, but it also increases risks of abuse when arguments from failure are deployed without being controlled by other institutional checks or by the expectation of longer-term collaboration. The central example of an international organization that fits such an understanding is, of course, the United Nations, given its scope and self-understanding as the core international forum, independently of whether it makes sense to understand the Charter as such as a world constitution.Footnote 52 For other international organizations, however, this will often be harder to argue.
How much and what do we really need in terms of a shared framework? In particular, we may wonder if we should assume there to be room for arguments from failure whenever the failure in question is closely tied to an international organization’s core mission. However, not just any functional orientation should be considered sufficient to generate mutual responsibilities for a shared political project. Absent a broader legal framework in terms of which it makes sense to assume that a range of different actors are ultimately pursuing a broader shared project, we should not assume that there is room for arguments from failure. Actors are not necessarily left without resources in this situation; in particular, they may draw implied powers doctrines if there are clear functional imperatives.
It follows that where states invoke arguments from failure to expand their powers as against other states, such as the ‘unwilling or unable’ doctrine employed in the so-called war on terror or in the context of humanitarian interventions without UN approval, this cannot be justified in terms of our framework.Footnote 53 There simply is no shared institutional framework in this case, in which we may identify gaps, in terms of which states may justify expanding their powers in the light of certain failures of others.
In addition, there are high risks of abuse if we allow interventions outside such a framework, as Paulina Starski shows by pointing to continuities with colonial legal arguments that establish hierarchies between states on the basis of functionalist considerations.Footnote 54 Ntina Tzouvala pushes this line of argument further, describing the ‘unwilling or unable’ doctrine as rooted in a broader international law discourse on the ‘standard of civilisation’.Footnote 55 This discourse, Tzouvala argues, oscillates between an ultimately racist ‘logic of biology’, which denies equality to some actors with a ‘logic of improvement’ towards an ultimately pro-capitalist/(neo)liberal state.Footnote 56 Whether we share Tzouvala’s critical approach or not, her analysis and that of Starski certainly speak to the risks of employing arguments from failure in a political and historical context where entrenched hegemonic structures shape the discourse. Insofar as arguments for intervention are put forward here, they therefore have to be justified in terms of the international law on self-defence, but without drawing on the unwilling or unable doctrine. Similar arguments apply with regard to humanitarian interventions by individual states or groups of states. In particular, the fact that a state may have signed a human rights treaty and is nevertheless violating human rights on a massive scale, potentially in the context of a civil war, does not provide enough of a shared institutional framework for individual states to justify intervening militarily.
Even where we do encounter a broader constitutional framework in the international realm, we also need to consider which entities are putting forward an argument from failure – a state or a body within another organization – in order to determine if they can indeed legitimately act for others in our broader analysis. To a degree, we might find horizontal power shifts on the international level to be less normatively problematic insofar as they do not conflict with a strict conception of functional integrity of the different branches as they might in the national realm. At the same time, they still raise the kind of issues that Mendes and Venzke draw attention to, prompting some modifications to our framework. As international bodies are, for example, typically not directly democratically legitimated, inclusiveness – understood in a broad way to encourage both broad representation and participation rights for stakeholders and civil society organizations – will have to serve as a proxy.
It is less clear whether and how this applies if arguments from failure are invoked in a vertical context. While laying out a more comprehensive framework for arguments from failure, Chapter 2 operated mostly on the basis of theories and examples developed for horizontal power shifts. In the international realm, however, such arguments are often deployed vertically, as we will also see in Chapter 8, dealing with the European Union.
At the bottom line, this also means, however, that where the hurdle of a ‘constitutional’ context can be overcome, the situation at the international level is not fundamentally different to domestic constellations. Though the normative stakes shift somewhat, our framework in Part I can still usefully inform our discussions.
7.3.3 The Uniting for Peace Resolution Revisited
With the above qualifications, let’s return to the Uniting for Peace Resolution and its argument for a subsidiary competence of the General Assembly. Its legality and scope remain contested today. While it has been invoked in a number of Security Council ResolutionsFootnote 57 and General Assembly Resolutions,Footnote 58 and played a role in other contexts, scholars differ on whether it actually formed the legal basis for any concrete actions.Footnote 59 Though the better arguments suggest that the Resolution was legally important, at least for the establishment of the UNEF peace mission in the wake of the Suez crisis in 1956,Footnote 60 it only ever served as a basis for recommending military action in the Korean case.Footnote 61 At the same time, it has been cited to justify other actions by the General Assembly.
Towards the end of the Cold War, the Security Council was for a while back in the driver’s seat again, decreasing the need for General Assembly intervention, until the newfound consensus began again to falter. Since then, the Uniting for Peace Resolution has made a partial comeback.Footnote 62 More recently, it has been invoked to defend a bigger role for the General Assembly to combat grave human rights abuses in Syria.Footnote 63 It has also been referred to in calls on Russia to cease its unlawful aggression against Ukraine, which cite the Resolution and the fact that ‘the lack of unanimity of the permanent members of the Security Council at its 8979th meeting has prevented it from exercising its primary responsibility for the maintenance of international peace and security’.Footnote 64 And unsurprisingly, some commentators have suggested that the General Assembly should rely on the Resolution to justify some form of intervention in Gaza, given the blockage of Security Council action by the United States.Footnote 65
In the original debate about the Resolution, two questions were central: first, whether the competence of the Security Council to take ‘action’ in cases of a breach of peace was exclusive; and second, what the Security Council’s precise obligations were and thus what might constitute failure in terms of the Resolution, focusing primarily on Arts. 10, 11, 12, 14 and 24 as well as 41 and 42 of the UN Charter.Footnote 66 The debate was thus framed mainly in terms of implied powers. Nevertheless, it frequently verged into broader arguments about necessity and ultimately proportionality, thus reflecting in many respects the framework developed in this book.
The text of the Charter makes clear that the Security Council indeed has primary responsibility to discuss disputes or functions assigned to it (Arts. 24 and 12 of the UN Charter), and this suggests that the General Assembly may at least have a subsidiary or secondary competence,Footnote 67 as the International Court of Justice also explicitly accepted in its Certain Expenses Advisory Opinion.Footnote 68 This argument seems largely accepted today, but it is less clear what precisely this entails and when the Assembly’s secondary competence is activated.
As many diplomats and lawyers have pointed out, the Security Council is tasked to ‘ensure prompt and effective action by the United Nations’ and to ‘act in accordance with the Purposes and Principles of the United Nations’ according to Art. 24. If the Security Council thus fails to act, this arguably contravenes the purpose of the United Nations and triggers the subsidiary competence of the General Assembly, or so some argue.Footnote 69 This entails a more straightforward argument from failure. Yet, the questions what constitutes failure and who gets to decide it loom large, given that the exercise of veto powers is explicitly envisaged by the Charter and does not, as such, constitute an abuse of powers. Moreover, some interventions may cause further harm rather than help. We might also ask whether only complete inaction constitutes a failure or whether failure is possible if the Council merely doesn’t do enough.Footnote 70 The wording of Arts. 41 and 42 suggests that the Security Council has discretion (‘may decide…’, ‘may take such action…’) how to respond once it has established the existence of any threat to the peace, breach of the peace or act of aggression (Art. 39). Some scholars have suggested that one should therefore require a referral by the Security Council itself, which counts as a procedural decision and so is not subject to the veto.Footnote 71
Finally, there is the question of what exactly the General Assembly might do. May it recommend (in a non-binding manner) military action that would otherwise violate Art. 2 (4) of the UN Charter? Can it make binding recommendations to Member States in that regard? Do either or both of these suggestions go too far? Here, too, scholars disagree, but it bears noting that the practice of the General Assembly has been very restrained in this regard in the past.
Treating the Uniting for Peace Resolution as a justification for the General Assembly to expand its power to deal with the fallout from Security Council vetoes, and thus as an argument from failure, would not fundamentally change the terms of the discussion. However, it might help to sharpen and emphasize some points. It would mainly highlight that the situation envisaged by the Resolution is not an everyday or routine case, and thus that the expansion of powers entails a divergence from standard practice and the rules rather than simply serving to increase the effectiveness of the United Nations. Clearly, the existing frameworks are not comprehensive in the sense that the General Assembly may never take action when it comes to Chapter VII of the Charter. It would also highlight a few additional aspects that play no, or a more marginal, role in current discussions. For example, it matters that the General Assembly is the closest analogue to a parliament we have on the international level. It can boast an inclusivity not shared by the Security Council, whose composition and processes are still shaped by the political constellations relevant in the mid-twentieth century and whose legitimacy is more shaky accordingly. That said, this argument is predicated on the idea that a large majority of states in the General Assembly are democratic states rather than authoritarian regimes.
Nevertheless, understanding the Security Council’s inaction in terms of a breach of law remains challenging, given the wide discretion it enjoys when it comes to acting under its framework. To put forward an argument from failure, we thus need something more concrete. Art. 39 of the UN Charter provides an entry point to such arguments, albeit letting the Security Council itself determine the existence of any threat to the peace, breach of the peace or act of aggression. Yet, the terms in question are legal terms, and while the Security Council has adopted an increasingly broad reading of Art. 39 since the end of the Cold War, this does not mean that it has no legal content. Scholars have moreover drawn on the emerging responsibility-to-protect (R2P) doctrine,Footnote 72 the better to come to grips with the Security Council’s obligations. This might be complemented by the Code of Conduct for the Security Council,Footnote 73 as Rebecca Barber has suggested.Footnote 74 R2P stipulates several conditions for triggering the UN’s responsibility, including just cause (in the form of serious and massive human rights violations, i.e. quality and quantity), reasonable prospects of improving the situation (capacity/functionality), last resort and proportionality. These closely overlap with the kind of arguments we would be interested in under a proportionality framework as applied to arguments from failure.
Would this be sufficient to differentiate cases of failure from mere disagreement? An explicit referral by the Security Council to the General Assembly would certainly bolster arguments that we are dealing not with a disagreement but a breach of obligations and ultimately failure. To draw this distinction, we might also consider the majorities in the Security Council. If action is blocked on the basis of just one permanent member’s veto, the case for treating this as a failure is stronger than if the issue is a truly contested one in the Security Council. Scholarly opinions might also help to clarify the issue since scholarly commentary is today much more readily and often immediately available on blogs and other fora, albeit we would have to consider a strong Global North bias in that context. Not least, we might also consider the majorities within the General Assembly itself.
All things considered then, there are good a priori reasons to assume that credible arguments from failure can be put forward in some cases to justify the General Assembly stepping in. However, the key question still remains as to what this implies in the next step and what and how much the General Assembly might do. And this is where an argument from failure would open the doors more widely than if we are relying on an implied powers justification. If we indeed encounter, for example, a situation involving massive violations of ius cogens norms and where there is no credible argument for non-intervention, as demonstrated by a referral and strong majorities in the Security Council and General Assembly, etc., and intervention would likely seem to be the only way to put an end to such a situation, under our framework the General Assembly would be able to exercise fairly robust powers, including recommending military action.
The real question in such cases is, of course, a political one. Where any of the major powers with a veto in the Security Council are themselves involved in breaches of international law, whether directly, as in the case of Russia’s war on Ukraine, or in a supporting role, as in the United States, when it comes to Gaza, the reason for eschewing stronger forms of international intervention is not legal but political.
From a normative perspective, however, it bears emphasizing that the alternatives to General Assembly intervention are hardly more appealing. We have seen military alliances such as NATO acting without a UN mandate but relying on the concept of humanitarian intervention.Footnote 75 And both in this context and in others, arguments from failure have regularly surfaced in cases where the Security Council is seen to be failing, as, for example, in the Syrian civil war.Footnote 76 Yet, while the General Assembly has repeatedly criticized the Security Council’s ‘failure’ to take action on Syria,Footnote 77 it ultimately did not rely on the Uniting for Peace Resolution mechanism in doing so.Footnote 78 However, from a normative perspective, intervention sanctioned by the United Nations and ideally within a UN framework is clearly preferable to individual powerful states acting in such cases. That said, it bears emphasizing that in an African context, intervention through the African Union, as provided for by Art. 4 (h) of its Constitutive Act, may provide a more appropriate alternative.Footnote 79
7.4 Conclusion
The liquid character of many authority structures in international law and their output orientation make failure arguments a recurring feature of public international law, often embedded in broader theories of modernization and sometimes with neo-colonial undertones. Yet, arguments from failure are problematic here, because the idea of taking over for others (while expanding one’s own powers) implies a context where expectations of cooperation and support are legally entrenched. This condition is not always met at the international level, particularly in inter-state relationships. And even where it is, the stakes of arguments from failure in international law can be very high and the discussion around them strongly ideologically shaped, as the various discourses of state failure demonstrate. One important conclusion to draw from this is thus that it matters who puts forward an argument from failure, as a matter of the power relationships involved. Given just how broad and hard to define arguments from failure are, we should be more careful and restrained with such arguments the more their proponents are speaking from a position of power. If those who dominate the discourse about expectations are the same as those who draw on failure to claim new rights, risks of abuse run particularly high.
8.1 Introduction
Efforts to capture what the European Union is about can be akin to the story of the blind men drawing an elephant. If the standard political narrative is a success story, with European integration bringing peace and wealth to Europe after centuries of war, another way of looking at the Union is through the lens of crisis. In this second reading, efforts at European integration have failed and failed again, been challenged, rejected and challenged some more, with its nature and future contested until today – from the abandonment of the European Political Community and the European Defense Community in 1954 to the lingering crisis of the 1960s with its empty chair, the economic challenges in the 1970s and the failed referenda for a constitutional treaty in the early 2000s and then, in short order, the financial crisis, the migration crisis and, not least, the rule of law crisis. Yet, as professional optimists in politics and European lawyers will point out, European integration has not just continued but been deepened through these challenges: per aspera ad astra!
Indeed, the crises of the past were not simply obstacles to European integration but often enabled it. ‘Men take great decisions only when crisis stares them in the face’,Footnote 1 said Jean Monnet, one of the European Union’s founding fathers who revelled in his ability to work through a good crisis.Footnote 2 European Union law – as well as, occasionally, domestic constitutional law geared towards accommodating the EU – reflects this crisis-driven history in its particular flexibility. It has sometimes provided the arguments for further integration based on a teleological reading of the treaties and secondary Union law (the law of the EU institutions), and sometimes by not standing in the way of political action outside its framework.Footnote 3 And perhaps unsurprisingly, the flexibility that appears to some as an admirable exercise in dialogue and legal pluralismFootnote 4 suggests to others a return to the ‘law of the jungle’,Footnote 5 where not law but power ultimately prevails.
In this chapter, the story I want to tell is only partly about arguments from failure, though we will find some such arguments in this context, too. Mainly, I want to draw attention to a particular style of flexible legal argument when it comes to allocating and shifting responsibility and competences in a multilevel system, such as the European Union. The language of failure is bound up here with the theme of mutual trust as a constitutional principle of EU law. Tracing such arguments reveals a lot about the different political landscapes of different eras of European law. More importantly, it sketches the best picture we have as to what a more flexible approach to legal interpretation might look like on a grander scale. Arguments from failure are part of this approach, but they are not the whole or indeed even the most important element of it. Rather, the lesson of this chapter is a broader one about the need to draw more careful legal distinctions and take law as a constraint more seriously in the Union.
In the following, I start with an overview of the kind of flexible legal argument prevalent in European Union law, in particular, the so-called effet utile, that is the idea of interpreting the European treaties in a purposive manner with the aim of realizing the internal market.Footnote 6 After this, I turn to consider some more specific concepts and doctrines in European law, namely the concept of systemic deficiencies and the Solange-jurisprudence, as arguments from failure or variations thereof. Finally, I discuss the normative stakes of such arguments, against the backdrop of the EU’s broader functionalist approach.
8.2 Flexibility and Effet Utile in European Law
Arguments about failure, relative capacities and effectiveness have long functioned as an important driver for European integration. As in the case of the United Nations, in the EU, a sense of crisis and the language of efficiency have been closely entwined with a constitutionalist understanding of the then-European Communities, today the European Union. Thus, the neo-functionalist school of thought on the EU has long emphasized the importance of output legitimacy over input legitimacy.Footnote 7 It builds on early descriptions of the European communities as a purposive association for functional integration (‘Zweckverband’), highlighting its limited, utilitarian scope compared to sovereign states.Footnote 8 But if this functional delimitation is what distinguishes the EU from its Member States, it is the breadth and depth of its powers that distinguishes it from other international organizations and that ultimately constitutes a political community, even absent a European demos.Footnote 9 This ambivalence is captured particularly well by Turkuler Isiksel’s theory of the European Union. On the one hand, Isiksel accepts the constitutional character of the European Union, on the other hand she stresses, that the Union is nevertheless functionally limited and that its legitimacy depends on realizing its overarching goal of economic union.Footnote 10 This functionalist orientation has shaped European law and enabled a particularly flexible approach to legal interpretation.Footnote 11
8.2.1 Early Landmarks
Start by considering the early jurisprudence of the European Court of Justice. Its early landmark cases, Van Gend en Loos and Costa v. ENEL, ushered in the two central innovations of European law as compared to other bodies of international law. In these two cases, the CJEU famously developed the then-revolutionary doctrines of the direct effect and supremacy of Union law. Together, these doctrines guaranteed not only that individual citizens could rely on treaty provisions directly in domestic courts (under certain broadly defined conditions), but also that domestic laws conflicting with treaty provisions would have to give way. In its reasoning, the Court famously distinguished the European Communities from other international organizations. Adopting a constitutionalist language, the judges in Van Gend en Loos argued that the Communities constituted ‘a new legal order of international law for the benefit of which the states have limited their sovereign rights (…) and the subjects of which comprise not only the member states but also their nationals’.Footnote 12 Restricting the enforcement of the treaty to the Commission and other Member States would be ‘ineffective’, the judges argued, ‘if it were to occur after the implementation of a national decision taken contrary to the provisions of the treaty’.Footnote 13 The Court continued this line of reasoning in its subsequent Costa v. ENEL judgment, where the judges reasoned that Union law would lack effectiveness ‘if a state could unilaterally nullify its (the treaty’s) effects by means of a legislative measure which could prevail over community law’.Footnote 14 Once again, this was bound up in a broader argument about the special character of the European Treaties.
This revolutionary jurisprudence did not emerge out of nowhere, but was a result of lobbying by pro-European groups as well as the Commission’s legal service.Footnote 15 When the Court finally adopted their suggestions, the judges were responding to the lingering political crisis of the new European Communities. At that time, joint decision-making and the project of a positive harmonization of Member State laws had stalled because of disagreements among the governments involved.Footnote 16 This situation was seen as ‘disappointing’ by many, including Robert Lecourt, then-judge of the European Court.Footnote 17 Various attempts to revitalize the project of political integration had failed, and as scholars have noted, it seemed unrealistic then to place trust in the Commission or the Parliament to change this state of affairs.Footnote 18 This backdrop of political crisis and failure of the Communities’ political institutions has been described as a ‘critical pre-condition’ for the Court’s early landmarks.Footnote 19 In other words: Here, too, a sense of failure was driving judicial innovations, as discussed in Chapter 6. As Justice Lecourt put it: ‘It may seem excessive to present Law as a particularly efficient tool to unify Europe. It is, however, worth the demonstration. It may indeed offer the chance to acknowledge – and, who knows?, to adopt – this new path, protected from the great controversies, in order to achieve the goal the Six Member States have established’.Footnote 20
This protection ‘from the great controversies’ of course brought with it a degree of depoliticization, which recent scholars have not unreasonably identified as the early seeds of the democratic deficit of European integration.Footnote 21 We see a similar logic in the second landmark case of Costa v. ENEL, setting out the supremacy of Community law over domestic laws. For if the force of community law varied across different Member States, the objectives of the treaty would be put at risk – and hence, European law needed to prevail over national law. As the crisis intensified and cooperation between Member States in the community institutions reached a new low with France’s empty-chair approach in 1965, the Court and the Commission’s legal service became central to making political progress.
8.2.2 Consolidation
Van Gend and Costa marked only the beginning, albeit an auspicious one. The argument about the need for effectively realizing the treaties’ goals – the so-called effet utile – came to play a key role in driving legal innovation and political and economic integration in the European Union. Famous examples are the creation of state liability for breaches of EU law in FrancovichFootnote 22 and Brasserie du Pechêur,Footnote 23 the direct effect of EU directivesFootnote 24 and the doctrine of implied powers expanding the authority of European institutions vis-à-vis the Member States,Footnote 25 among many others. Insofar as the CJEU referred more explicitly to state failures in these cases, however, this was not where its emphasis lay. In the Court’s language, failure often simply indicated a breach of EU law. That then required effective remedies and thus drove legal innovation, but without making the latter too explicit. Only in the liability decisions in Brasserie du Pechêur/Factortame did the Court put forward a more specific concept of a breach of law that we might label failure, in the sense that individuals seeking to hold a state liable for damages suffered as a result of a violation of EU law had to show that the breach was sufficiently serious.Footnote 26 The broader rationale of efficient ordering also came to play a role in the CJEU’s doctrine of implied powers, later adopted in the Lisbon Treaty, but developed in the context of foreign relations in the early 1970s. Thus, in its 1971 ERTA judgment, the Court reasoned that where the Community had powers to regulate certain matters internally, ‘the full effect of this provision would be jeopardized if the powers which it confers (…) did not extend to the conclusion of agreements with third countries’.Footnote 27
Once the initial crises had been overcome, the Court’s early precedents were on the books and the CJEU’s broader teleological approach to the interpretation of the Treaties had become entrenched. Thus, functionalism continued to play an important role in the Court’s jurisprudence even when European politics subsequently changed, as a result of the introduction of majority voting, which furnished the means to overcome blockages by individual members. The Court’s expansive approach increasingly prompted scholarly and political criticism from the late 1990s onwards.Footnote 28 The more formal response came, inter alia, in the form of a treaty amendment, the subsidiarity clause, which many Member States hoped would provide a mechanism to constrain the exercise of Union powers in the future.Footnote 29 Yet, the clause did not fulfil that purpose, at least not in the first two decades after its introduction. Instead, it constitutionalized in many ways the CJEU’s outcome-oriented approach to EU competences. Today, encapsulated in Art. 5(3) TEU, the subsidiarity principle provides that
Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.
While the subsidiarity principle resembles other rules for dividing federal and state competences on the basis of concepts such as implied powers and necessity, its framing makes clear that (non-exclusive) competences in the EU are a priori understood not as fixed allocations of authority but rather as instruments to increase regulatory output.Footnote 30 As such, it contributed to further entrenching the EU’s legitimacy in functional terms – that is, in terms of enabling effective governance – rather than in terms of increasing democratic legitimacy.
8.3 Fundamental Rights Protection in a Multilevel System: Mutual Trust and Its Limitations
Arguments about relative capacities and effectiveness not only played a role in the realm of European economic law, however. Through the concept of systemic deficiencies and the Solange-jurisprudence they also appear in the very different realm of fundamental rights protection, where they provide a basis for intervention in cases of failure and for restraint, where trust in other bodies is appropriate. While such arguments play a different role in these cases than in the economic realm, their attractiveness in such different contexts speaks to their importance for negotiating responsibilities within multilevel legal systems.
8.3.1 Systemic Deficiencies and Mutual Trust
8.3.1.1 The N.S. Case
Start with a well-known decision of the CJEU on migration law. In the N.S. case, Belgian and UK courts had asked the CJEU whether their respective governments were still allowed to transfer asylum seekers back to the country through which they entered the European Union. This standard rule constituted an important element of the ‘Dublin system’,Footnote 31 given that reports had emerged showing that both the housing conditions as well as the legal procedures in place in Greece at the time were dreadful and violated asylum-seekers’ fundamental rights.Footnote 32 In other words, they asked if Belgium and the United Kingdom could really send people back to such conditions.
Drawing on an ECtHR judgment, in which the ECtHR had identified structural problems in Greece’s system for housing and processing asylum-seekers,Footnote 33 the CJEU answered the question negatively. In doing so, it developed the concept of systemic deficiencies, but coupled this with an individual assessment. Where systemic deficiencies provided sufficient grounds for believing that asylum seekers ‘face(d) a real risk of being subjected to inhuman or degrading treatment’, they could no longer be transferred back to their port of entry within the Dublin system. With this, the CJEU distinguished systemic deficiencies from ‘minor infringements’ of the existing European provisions. The latter would not trigger a deviation from the ordinary rules allocating responsibilities under the Dublin framework. However, where systemic deficiencies existed, they would shift responsibility for the asylum-seekers among the Member States, contrary to the existing rules which provided that the countries through which asylum-seekers entered the Union were responsible for dealing with their claims.
The N.S. judgment was a momentous decision because it involved a significant departure from the Court’s previous jurisprudence. The judges had always emphasized the principle of mutual trust, which echoes this theme in John Hart Ely’s theory of judicial review.Footnote 34 In the European Union, however, the principle of mutual trust had assumed a specific meaning in the context of creating the common market. Establishing such a truly integrated common market where products, capital and people can freely travel was and is no mean feat. It requires Europeans to recognize as valid in their own state acts of other Member States, from product safety standards and academic degrees to something as simple as driving licenses.Footnote 35 In a canonical case of the European Court of Justice, Cassis de Dijon, the Court had understood this principle to imply that Germans could not prohibit or hinder the marketing of a French liqueur, Cassis de Dijon, because its alcohol content was lower than the percentage required for beverages to be sold as liqueur in Germany.Footnote 36 Instead, German authorities had to recognize the French standards, according to which the liqueur had been produced, instead of imposing their own, thus admitting products of other Member States into their own internal markets. Because only some areas and some rules are truly standardized across the Union and because even where they are standardized, these standards are implemented by domestic administrators, the principle of mutual recognition became enormously important. The CJEU supplemented the principle of mutual recognition with the parallel principle of mutual trust.Footnote 37 Because Member States could trust each other to comply with European law, the standard argument went, they had to recognize each other’s actions and procedures as presumptively legal. This also applied when the EU later assumed competences in the realm of judicial and police cooperation, with regard to criminal law and asylum law.Footnote 38
The concept of ‘systemic deficiencies’ was thus developed by the Court to carve out an exception to the rule of mutual trust. In specific cases, Member States were not just allowed but legally required to set aside the fiction of trust and cease sending asylum-seekers back to their port of entry. In Elyian terms, we might also label this a malfunction in the integration process, which then triggers intervention, albeit in a specific supranational context.
8.3.1.2 The Rule of Law Crisis
Following the N.S. judgment, the term ‘systemic deficiencies’ quickly became familiar in European Union law. It was invoked in a host of European and domestic European judgments in the field of migration and adopted in subsequent legislation (Art. 3(2) of EU Regulation 604/2013). The concept migrated to questions of extradition, where it became relevant in the context of the rule of law crisis.Footnote 39 In the case of Aranyosi and Caldaru (2016), the question arose if Germany could extradite two criminal suspects to Hungary and Romania on the basis of a European Arrest Warrant given the broader rule of law problems in the two countries and the questionable status of judicial independence there. Once again drawing on previous jurisprudence of the ECtHR,Footnote 40 the CJEU argued that cooperation between states under the European Arrest Warrant mechanism could be suspended only ‘in the event of serious and persistent breach by one of the Member States of the principles referred to in Article 2 TEU, and in accordance with the procedure provided for in Article 7 TEU’.Footnote 41 Thus, only once the Council had taken a decision according to Art. 7 TEU, Member States would have to suspend cooperation under the respective framework automatically.Footnote 42 Absent such a Council decision, judicial authorities would only be able to refuse extradition requests in certain exceptional cases where there was no longer a basis for mutual recognition and trust. In the case at hand, the Court concluded that it needed to investigate further and request information before extraditing persons in cases where
objective, reliable, specific and properly updated evidence (…) demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention, the executing judicial authority must determine, specifically and precisely, whether there are substantial grounds to believe that the individual concerned by a European arrest warrant (…) will be exposed, because of the conditions for his detention in the issuing Member State, to a real risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter, in the event of his surrender to that Member State.Footnote 43
With this, it largely followed the advisory opinion of Advocate General Bot, who had pointed out that the situation resulted from ‘a damaging failure to act, on the part both of the Member States and of the Union institutions’.Footnote 44 Once again, then, the argument about systemic deficiencies served to disapply the existing regulatory framework and shift responsibilities among Member States.
The CJEU has since reaffirmed its approach in the widely discussed Celmer case,Footnote 45 which dealt with a reference by an Irish Court that had questioned an extradition request to Poland given the ongoing rule of law proceedings against the Polish government’s attempt to capture the judiciary.Footnote 46 The CJEU, however, made it even clearer in Celmer that systemic deficiencies on their own did not suffice to deny extradition but rather that there had to be an assessment of the specific risk to the concerned person in each individual case. What exactly the double-conditionality of systemic flaws and individual risk really requires is nevertheless somewhat unclear in the Court’s jurisprudence and subject of scholarly critiques.Footnote 47
Not least, the concept of systemic deficits subsequently also appeared in the context of the 2020 Rule of Law Conditionality Framework. This allows the European Commission to withhold certain funds from Member States inter alia in case of systemic deficits that ‘directly affect or seriously risk affecting the sound financial management of the Union budget or of the financial interests of the Union in a sufficiently direct way’.Footnote 48 It thus enabled the Commission to expand its powers (of withholding funds) in order to better respond to structural problems in Member States.
8.3.2 Solange and Reverse-Solange
8.3.2.1 The Solange-Jurisprudence
Though the concept of systemic deficiencies constituted a new doctrine in European law, it shared an underlying rationale with a much earlier line of jurisprudence, recognizing the need for effective rights protection in a multilevel system and for a certain degree of flexibility accordingly.
Indeed, the protection of constitutional and human rights by the CJEU itself constituted a response to a push-back by some constitutional courts, in particular the German. European law did not at that point include a catalogue of fundamental rights as opposed to a set of economic fundamental freedoms. This was particularly problematic because European law had been declared to be supreme in conflicts with domestic law. Such supremacy, as the CJEU had explained early on, applied not just to ordinary statutory domestic law but also to domestic constitutional law.Footnote 49 However, since the European Treaties themselves did not contain any human or fundamental rights norms in the traditional sense – the so-called economic freedoms were just that and not more – this meant that European law de facto operated without any human or fundamental rights safeguards. This, the German Constitutional Court decided in 1974, was not acceptable. It thus claimed for itself the competence to scrutinize European law with regard to its compatibility with German fundamental rights, limiting the supremacy of EU law with respect to the Basic Law ‘[A]s long as the integration process has not progressed so far that Community law receives a catalogue of fundamental rights decided on by a parliament and of settled validity, which is adequate in comparison with the catalogue of fundamental rights contained in the Basic Law’.
This line of reasoning, however, posed a threat to the CJEU, which was just starting to develop its own fundamental rights jurisprudence. As the CJEU’s willingness to develop and engage with fundamental rights picked up speed and somewhat more credibility, the German Constitutional Court subsequently relinquished its jurisdiction over European law in Solange II: ‘[A]s long as the European Communities, in particular European Court case law, generally ensure effective protection of fundamental rights as against the sovereign powers of the Communities which is to be regarded as substantially similar to the protection of fundamental rights required unconditionally by the Constitution, and in so far as they generally safeguard the essential content of fundamental rights.’Footnote 50
This later ‘solange’ (so long as) argument thus entails a variation on the theme of assuming power on the basis of failure. It goes like this: As long as another institution/system offers an adequate system of rights protection, the court/institution in question will not exercise its own jurisdiction in this regard. This is different to the first Solange-decision, which involved an argument from failure, albeit with one twist: Here, the German court claimed jurisdiction as long as the European system was failing to provide adequate rights protection. That decision was thus concerned not with a typical institutional failure in the sense of malperformance, but rather responded to a design or adaptation failure in the broader legal system of EC law. This design failure had led to a gap in fundamental rights protection, which the German Court initially sought to fill by exercising jurisdiction over EC law, contrary to the CJEU’s postulate of EU law supremacy. Once the gap had been closed – albeit not quite in the way initially envisaged by the German Court – there was no further need to exercise jurisdiction. That said, recourse to failure arguments remains a latent possibility should the EU fall significantly below its current standard of fundamental rights protection.
This concept has also surfaced in other decisions,Footnote 51 including in the European Court of Human Rights in the Bosphorus-decision (in modified formFootnote 52). And it featured in an advisory opinion of Advocate General MaduroFootnote 53 in a CJEU case, arguing for European rights review in dealing with individuals sanctioned by the UN Security Council, given that at the time, such individuals had no way of challenging their sanctions within the UN system itself.Footnote 54
8.3.2.2 Reverse-Solange
More recently, the Solange-rationale has been revived in the academic literature in the context of the European rule of law crisis. Armin von Bogdandy and Iris Canor, writing with a number of co-authors, have argued for an expansion of the CJEU’s competences in cases where we encounter serious deficits regarding the rule of law in individual Member States.Footnote 55 Labelled Reverse-Solange, this proposal is geared to address the problem that the European Union, strictly speaking, has very limited means to ensure adherence to core principles of democracy and the rule of law outside the scope of European law. For while there exists a Charter of Fundamental Rights that applies to actions of the European Union itself, Member States are only bound by the Charter when they implement European law, according to Art. 51 CFR.Footnote 56 Ultimately, this proposal envisages the European Court of Justice assuming the function of a constitutional court in states where serious rule of law deficits exist with respect to core rights and values as protected by Art. 2 TEU.
8.4 Questions and Lessons
All of this raises the question what our framework and the previous insights from this book can bring to the EU case – and what in turn the EU stories might teach us going forward.
To start with, it bears emphasizing that the idea of effectiveness holds an important place as a source of political legitimacy both within and outside of nation states, its inherently administrative character and focus on risk-regulation notwithstanding.Footnote 57 Of course, this does not necessarily imply that it should operate as a yardstick for legality, as opposed to a consideration legislators or constitution drafters should take into account when designing policies and even institutions. Given the ‘liquid’ structures of authority we encounter in the international realm,Footnote 58 but also in the European one, this is not surprising. However, in an EU context, this deserves particular attention because the European Union is much more federalized, much closer to a state than other international organizations, and it exercises much more power. Unlike other international organizations, the European Union can meaningfully be described in constitutional terms.Footnote 59 However, in the European Union, democratic and functionalist modes of legitimacy have long been in tension with each other,Footnote 60 even if we accept that input- and output-legitimacy are not necessarily mutually exclusive but rather complementary.Footnote 61
Some scholars have more recently suggested that the path of integration through law in the Union has come to end, and that governance in the EU is increasingly driven by more informal arrangements and measures of questionable legality, drawing on necessity and emergency rather than constitutional tropes.Footnote 62 They reference developments during the financial crisis that were based on a very insecure legal footing, if at all: the Troika, the expansion of the ECB’s powers during the crisis, and the European stability mechanism, upheld by the European Court of Justice in Pringle.Footnote 63 Though it remains somewhat unclear how far this trend in the EU has gone – and how much it is mostly a response to the series of crises shaking the Union from the 2010s onwards – these observations tie in with what seems to be a broader global trend towards more informality in international affairs. Recent scholarship shows that decision-makers increasingly choose informal arrangements over formal ones (for different reasons).Footnote 64 From a constitutional theory perspective, such arrangements are no less troubling than the more formal structures and institutions we have gotten used to. While they may be better at preserving domestic decision-making powers (if this is what we worry about), they also typically involve fairly opaque decision-making arrangements, which often hinge on personal networks.Footnote 65
All of this suggests two things. First, it is important to face up to functionalism as a key source of legitimacy in the European Union, one that will hold a more important place here than in domestic states. In this regard, the European Union is much like other international organizations. And because supranationalism will remain contested and problematic, a certain degree of legal flexibility will be necessary to respond to shifting political and legal landscapes. Yet, it also seems important that this openness should not get out of hand. Both in the interests of the Member States and the Union, legal guardrails are necessary, from a strategic perspective, but more importantly from a normative one. It is core to the idea of modern constitutionalism that the exercise of legal power be legally bound. This suggests that the more recent emergency-driven logic of integration as well as the unqualified effet utile approach the CJEU has often adopted in the past both go too far. It also illustrates why arguments from failure might have an important place in this context, by offering a principled and legal but narrow path for intervention in some cases. Given its constitutional character, the EU is in many ways a more suitable legal environment for such arguments than most other international organizations. The European Treaties clearly stipulate principles of mutual solidarity and cooperation (e.g. Preamble, Art. 2, 3, 4, etc. TEU), albeit that solidarity may in practice often be lacking between Member States, as demonstrated during the financial crisis.Footnote 66
8.4.1 Arguments from Failure
The framework developed here also provides a clearer perspective on some of the more specific examples and cases discussed in Section 8.3, to which I now return.
8.4.1.1 Solange-Arguments
In constitutional theory, approaches like Solange are typically discussed in the context of ideas of constitutional pluralism or even judicial dialogue in Europe. Multiple courts are seen as being in a conversation about rights protection in the context of determining their own jurisdiction vis-à-vis one another.Footnote 67 As such, these decisions represent not just an example of an approach that adopts a comparative institutional analysis as its key lens, but we may also label the Solange-arguments a form of ‘legal process theory’, with close parallels to comparative political process theory. The difference is that we are here concerned with deficits in rights protection rather than democratic processes, while acknowledging that both are closely related. Yet, while the Solange-approach may be intuitively convincing to manage jurisdictional conflicts in a multilevel system, it is also problematic. As briefly discussed in Chapter 2, Alexander Somek delivers perhaps the most stinging attack on this line of jurisprudence, describing the Solange-approach as a return to ‘the law of the jungle’, where ultimately political powers prevail.Footnote 68 Where defenders of constitutional pluralism such as Mattias Kumm reframe this jurisprudence as part of a practice of mutual justification and an expression of the principle of subsidiarity, Somek considers it as an example of an administrative approach to constitutionalism whose focus is on ‘interface conflicts and their management’.Footnote 69 Ultimately, he concludes, ideas of good governance triumph over democratic self-government.Footnote 70 Rather than providing ‘comprehensive regulation of the exercise of public authority’, the constitution becomes ‘a constitution of conflict’.Footnote 71 In other words, what is legal depends on regulatory output rather than on whether the institution acting is part of a government elected directly by the people over whom it exercises authority.
Though Somek’s argument is important in providing a more critical perspective on the constitutional pluralism literature, it seems to me that his critique has a lot more bite with regard to effet utile arguments and the principles of subsidiarity and proportionality in EU law than with regard to the target at which he directs it, the Solange-jurisprudence.
For the Solange-jurisprudence does not truly open the gates to a situation of ‘bourgeois anarchy’, where individuals are in a position to choose their loyalties and decide whom to trust.Footnote 72 This becomes clear when we take a look at the original cases themselves. In neither of the two German Solange-decisions were the plaintiffs put in a position to make a choice where to pursue their rights claims, that is in the European Union or Germany. Nor did the decisions introduce a case-by-case approach to the matter. Instead, they allowed the German Court to set out generally the responsibilities of European and German courts in dealing with rights violations, in the context of the European Union exercising public power. This distinguishes the decisions from the Bosphorus judgment of the ECtHR, which adopts a more flexible approach to the issue, albeit one that has given rise to some uncertainty.Footnote 73 At the same time, the ECtHR also clearly had jurisdiction in the Bosphorus case, which it chose not to exercise in favour of European and domestic courts. In other words, democratic legitimacy was not at stake here because the judgment involved (unlike Solange I) a withdrawal of a supranational court rather than an assertion of power.
Moreover, when the German Constitutional Court in Solange II relinquished its jurisdiction over European law, it did not represent a simple judicial retreat to make room for greater political powers, as Somek’s metaphor of the law of the jungle suggests. Rather, it involved a recognition that, ideally, rights violations should be addressed within the legal system whose authorities exercise power in the specific case. In other words, the German Court decided not to exercise review in cases where it was never ideal for German courts to exercise jurisdiction in the first place, and where it had done so only to establish a baseline of rights protection. Thus, unless we argue against any kind of rights review in a supranational system, on the basis that rights presuppose a demos or a social contract or in any event a closer political community than the EU can offer,Footnote 74 I am not persuaded by this line of argument. Nor can we credibly reconcile such an approach with support for an organization like the European Union, which exercises significant public power, and which we should therefore be able to hold accountable in a court. In other words, Somek’s argument is only convincing if we are – for example for democratic reasons – opposed to supranational lawmaking by the EU more broadly. This is, of course, a perfectly legitimate position, but it is not mine and would in any event take us beyond the scope of this book and into much broader debates.
As we have seen, the first Solange-decision represents an argument from failure, and indeed one we can normatively defend. By expanding its jurisdiction to cover European law, the German Court responded to the fact that European law was considered to prevail over domestic constitutional law (and thus rights) while no European rights review mechanism existed at the time. Together, those two developments had opened up a gap in the European legal framework, leaving individuals without access to justice when it came to rights violations. It also bears emphasizing that the 1970s were very much the time when the German Constitutional Court had firmly established its jurisprudence, closing a range of traditional domestic loopholes where rights review had previously been considered inappropriate.Footnote 75 Expanding this approach to the European Communities clearly fit with this line of jurisprudence. Nor could considerations of functionality, necessity and costs really be seen as decisive against such a move. True, claiming jurisdiction over European law in cases of rights violations did limit the supremacy of European law. It also introduced risks of fragmentation into a system that the CJEU had designed to guarantee the uniform application of European law. Those were potential costs of the Court’s decision. Yet, to say that these outweighed the need to fill a gap in rights protection seems awkward, not just from a rule of law perspective but also in light of the fact that the Union owes its power to Member States who are constitutionally bound to ensure the fundamental rights of their citizens. As a result, the first Solange judgment in many ways appears as an exemplary and legitimate use of an argument from failure.
8.4.1.2 Systemic Deficiencies
In contrast, the concept of systemic deficiencies represents no clear-cut case of an argument from failure. The refusal to deliver a person to another Member State in line with existing regulatory arrangements due to risks of rights violations, be it as a matter of the European Arrest Warrant or the rules on migration, raises first and foremost questions of evidence. More precisely, the key question is whether there is sufficient evidence to suggest that the migrant’s or arrested person’s rights will be violated if they are brought into the jurisdiction of another Member State. Thus, the case involves a conflict of norms where primary law and thus fundamental rights must prevail over the regulatory framework of EU secondary law setting out Member States’ respective obligations and responsibilities. Things are only complicated by the fact that it was not actually clear in the cases at hand that individual rights would be violated: hence, the question of evidence.
And this is where the principle of mutual trust comes in, which the CJEU has elevated to a constitutional principle.Footnote 76 More precisely, the CJEU had previously argued in its case law that regulatory cooperation between Member States would no longer be feasible in practice if officials in one state would standardly scrutinize official behaviour in others because they distrusted their application of EU law. Given existing biases and prejudices towards other Member States, this concern does not seem altogether misplaced. Setting aside the default of mutual trust thus requires strong arguments, while it seems equally clear that mutual trust cannot be limitless, given a sufficiently high risk of rights violations. The question then is how high that risk has to be and whether it needs to be assessed in general or individualized terms. The concept of systemic deficiencies serves here, on the one hand, to overcome the default of mutual trust, and thus, as an argument from failure in some ways. But it also provides a more straightforward tool for assessing factual risks, which suggests that framing the issue in terms of an argument from failure is not entirely appropriate.
Nevertheless, very much in line with what we would expect if we treated this as an argument from failure, the European Court of Justice has adopted a proportionality approach in these cases. Thus, the Court emphasized that ‘minor infringements of EU law’Footnote 77 would not allow for the suspension of Dublin transfers. By contrast, violations of absolute rights under the European Convention, from which no derogation is possible, are sufficient, as violations of absolute rights under the European Charter of Fundamental RightsFootnote 78 warrant the suspension of mutual trust,Footnote 79 if the deficiencies in the protection of these rights were ‘systemic or generalised, or which (…) affect certain groups of people, or (…) certain places of detention’.Footnote 80 In another decision, the CJEU also seemed to suggest that a violation of the essence of a fundamental right, in this case the right to fair trial, would suffice if it constituted a violation of the ‘essence of the rule of law’.Footnote 81
From a rule of law perspective, this is problematic insofar as this approach accepts that some, albeit minor, rights violations may be tolerated in the interest of enabling the functioning of the EU’s regulatory framework. There has accordingly been some debate in the literature about how to define the concept of systemic deficiencies in a way that balances the need for trust, on the one hand, and the need to prevent rights violations, on the other.Footnote 82 Insofar as it is hard to provide an individual risk assessment without relying on broader background conditions, factors like quantity, time and quality may help here to assess how problematic the situation is and how real the risks for individual plaintiffs are upon their return to the country in question. It is important, however, not to establish hurdles that are too high. The focus must be on the risk for individuals in these cases rather than an abstract assessment – and this, once again, suggests that treating the concept of systemic deficiencies as an argument from failure somewhat misses the point.
Nevertheless, the idea of ‘systemic deficiencies’ in the court’s jurisprudence is interesting because it turns the tables on the EU’s prevalent efficiency discourse. If arguments from failure were underlying the trope of the effet utile and the expansion of EU competences at the cost of Member States, the concept of systemic deficiencies operates in the opposite way: by stopping cooperation, thus placing the achievement of the EU’s regulatory goals at risk. Because of this, it is not surprising that the CJEU has been wary of defining the concept too broadly, and still treats mutual trust as the default in Europe. By invoking the idea of systemic deficiencies, the CJEU also reverts to an internationalist rather than a supranational paradigm. It sees individual states as ultimately responsible for protecting the fundamental rights of individuals, rather than working towards a European solution.
8.4.1.3 Considering Reverse-Solange
This leaves the Reverse-Solange argument. This would have the European Court of Justice act as constitutional court in cases brought by Union citizens where there are serious deficits regarding the rule of law in individual Member States with respect to certain core values and rights, as protected by Art. 2 TEU. As it stands, this proposal involves a real and explicit argument from failure. One institution – the European Court of Justice – is called upon to expand its jurisdiction to cases where it usually has no jurisdiction, as a matter of Art. 51 CFR. As such, however, it would introduce a problematic differentiation between Member States, some of whose judiciaries would be considered as insufficiently trustworthy to protect their own citizens’ rights. Bogdandy and Ioannidis’ early 2014 article on systemic deficits explicitly refers to the concept of failed states. It argues that systemic deficiencies are an ‘intermediate’ concept between ‘failed’ and ‘normal’, that is well-functioning states,Footnote 83 while drawing on the World Bank indicators, etc. to make the case for a – here still somewhat undefined – special treatment of Member States like Greece. Of course, within the EU, such a move might be more defensible. But risks of paternalism nevertheless loom large, and there is at least a whiff of neo-colonial attitudes.
In terms of our framework, the main question will be whether there is indeed room for such an argument in the context of the existing legal framework. We have already seen that the competences of the EU vis-à-vis Member States have long been understood in a flexible manner. From a subsidiarity perspective, the Reverse-Solange proposal seems in many ways a fairly natural approach. What argues against the proposal, however, is first and foremost the wording of Art. 51 CFR, as well as its drafting history. In terms of the framework developed in Chapters 1 and 2, it is doubtful that we have a sufficient gap in the law to accommodate an argument from failure.
Art. 51 of the Charter of Fundamental Rights of the European Union reads:
1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. (…)
2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.Footnote 84
At the time the Charter was drafted, subsection 2 loomed large in the heads of several Member States. It prompted two explicit reservations by Poland and the United Kingdom essentially restating the limit in subsection 2. What the Reverse-Solange proposal involves is therefore very close to the thing the Member States sought to avoid, namely the prospect of a generally applicable bill of rights that would have converted the Charter into a more genuine constitutional document at a time when a constitutional vision for the European Union had just been rejected in referenda in France and the Netherlands and encountered resistance elsewhere in the Union as well. All of this suggests that there is no gap in the law here that an argument from failure in the form of the Reverse-Solange proposal might fill.
Of course, the counterargument to this is that when the Charter was drafted, democratic backsliding and the rule of law crisis were not yet a major problem in the European Union. Rather, it was long assumed that once states had been accepted into the Union, they could be trusted to have a functioning and effective judicial system to protect individual rights and the rule of law. Moreover, the treaties did include some mechanisms to deal with backsliding, in particular Art. 7 TEU, but those mechanisms did not prove effective, partly for design reasons but also due to a lack of political will on the part of other governments and European institutions.Footnote 85 However, even where existing mechanisms appear insufficient to deal with a problem, it may still be the case that the legal framework in place leaves no room for an expansion of competences, and this, I believe, is the case with regard to the CJEU’s jurisdiction under the Charter.
Add to this that it would once again involve a general assessment of the state of the rule of law in specific countries, rather than with regard to specific issues. It would, thus, involve the CJEU’s judges in what will inevitably be a very broad assessment with high political stakes. Of course, the CJEU is already making some fairly broad judgments when it comes to judicial independence. But it matters whether such an assessment serves as a basis for specific findings and interventions, or whether it serves as basis for a wide expansion of the CJEU’s competences.
Nor would I be optimistic about the functionality of the Reverse-Solange proposal. It seems by no means clear that intervention by the CJEU would improve things much in the Member States, in particular since there is already a European court competent to assess human rights violations in the respective states, namely the European Court of Human Rights. While it is true that the European Court of Justice has more powerful financial sanctions at its disposal, it runs into other difficulties. Without an expansion of the procedural avenues for individual plaintiffs to bring cases, the doctrine would likely have limited impact. For there are very limited procedural avenues for individual plaintiffs to bring violations of their rights under the Charter to the CJEU on their own, only an option for domestic courts to bring a preliminary reference to the CJEU or for the Commission to bring infringement actions. In cases where domestic judiciaries have to a significant degree been captured, and where resisting judges are frequently intimidated by disciplinary procedures or administratively sidelined, many cases will therefore simply not reach the CJEU in the first place. And while backsliding in some countries has come with significant human rights violations, in particular of minorities such as the LGBTQ community or (non-white) immigrants, the broader problem is not only and perhaps not even primarily a fundamental rights issue. It is a structural problem involving the capture of independent institutions, the intimidation and/or abolition of checks and balances and the dismantling of oppositional civil society networks and media.Footnote 86 Not all of these issues can easily be litigated in fundamental rights terms. Not least, the Reverse-Solange approach would come with significant costs given its differentiation between Member States and intervention in core areas of their sovereignty.
8.5. Conclusion
Rather than further pushing the boundaries of integration through arguments from failure like Reverse-Solange, we should therefore rein in this logic in the European Union. Yes, the treaties are hard to change. Yes, legal innovation can be very difficult in a supranational context where different Member States have different interests. But functionalism and flexibility cannot be boundless. They need to come with limitations for the sake of preserving and fostering democratic legitimacy in Europe. The more the Union federalizes, the less convincing its current functionalist logic will become. This is why the continued reliance on a loose purposive approach to the interpretation of the treaties has, with Maastricht and subsequent treaties, rightfully attracted more criticism. Such limits could be drawn either by a court or chamber other than the CJEU, as Joseph Weiler and others have suggested,Footnote 87 or by a thoroughly reformed Court of Justice whose procedural and organizational design ensures greater democratic responsiveness, as suggested recently in a very interesting study by Christoph Krenn.Footnote 88 But the time for ever-more federalization in the interest of achieving certain regulatory outputs in the Union should be over – and this in turn suggests why arguments from failure might come to play a more specific and limited role in this context in the future.
Perhaps surprisingly, the CJEU’s broad purposive approach to interpretation in some respects parallels what we observe in some countries of the Global South where scholars often call for courts to set aside separation of powers concerns in the interest of bringing about certain outcomes. Of course, the goals and rights are very different; in the European Union, the goal is the realization of the common market; in Global South countries, addressing poverty is often a foremost concern. Nevertheless, we find in both contexts a strong functionalist current in the discussion, emphasizing the importance of realizing key legal rights or policy goals against a background of real and perceived failure. It is therefore perhaps not surprising that the concept of transformative constitutionalism has more recently been put forward as a way to describe the CJEU’s impact on European countries and as an inspiration for European lawyers, too.Footnote 89 As instructive as the parallels are, however, this proposal is as mistaken, for a variety of reasons. This is not so much because of the debate about whether it qualifies as a liberalFootnote 90 or postliberal concept,Footnote 91 but because transformative constitutionalism entails an imperative to change not just state structures but society more broadly, to bring it in line with constitutional values.Footnote 92 This large-scale progressive vision distinguishes it from the largely liberal and sometimes neo-liberal agenda pursued in the founding of the European Communities that sought to withdraw certain economic issues from politics in order to isolate states from political pressures for socialist changes of state and society.Footnote 93 It also does not fit a supranational setting where courts will have and should have a more restrained role. The more courts drive and enable social change towards a specific ideal of a just society, the more important it is that they are deeply connected with that society in a way that is not feasible or indeed desirable for a supranational court. Thus, EU law with its emphasis on the effective realization of certain policy goals and even individual rights can help illuminate the consequences of adopting too flexible an approach to legal interpretation and competences, where effectiveness arguments crowd out considerations of legality or the separation of powers.
9.1 Summary
I started out writing this book convinced of the benefits of structural reform litigation. I believed it might be an approach that courts in Europe, including the German one, should occasionally adopt to address structural problems and dysfunctions. I still believe this to be true. Yet, in the course of my research, I have also become much more critical of such arguments and the discourses of effectiveness and improvement that surround them.
The most important lesson of this book is that we need to take arguments from failure seriously as a concept of comparative public law. Arguments from failure are commonplace in public law and international law. But while arguments from failure may be related to emergency arguments or arguments about implied powers, they are not identical with either of them nor with arguments about the effective realization of certain key goals or values. Instead, they come with a distinct structure and represent a distinct idea, based on a broad understanding of the separation of powers as a tool to restrain, but also to enable effective government.
Many institutions and office-holders in very different settings invoke the real or perceived failure of other institutions to justify an expansion of their own competences. This is true in international settings and within nation states as well as in different institutional constellations. Global South scholars often draw on arguments from failure to try and convince judges to take on more robust roles in designing and monitoring specific remedies to realize socio-economic rights and ultimately a more equal and just society. In contrast, the European Court of Justice’s language of efficiency, underpinned by arguments from failure, has more often than not been deployed to realize a neo-liberal economic vision of the common market in Europe. In the international realm, too, arguments from failure have contributed to legitimize structural adjustment programs and elements of the war on terror, continuing long-standing legacies of (neo-)colonialism. And yet, at the same time, they are also at the root of some of international law’s proudest achievements – the creation and development of supranational human rights institutions. The riddle posed by these different ideological underpinnings cannot be satisfactorily resolved by linking all these examples to the emergence of a hegemonical Western capitalism based on an overarching logic of efficiency. The ideological differences we observe are real ones. Transformative constitutionalism is not simply the human face of legal neo-liberalism, whatever precisely it entails and whether it is ultimately postliberal or not. Rather, arguments from failure – like the broader theme of efficiency in which they are embedded – are empty vessels that may be employed for a wide variety of political projects and purposes.
This makes it hard, and to some degree impossible, to evaluate such arguments normatively without saying more about the underlying political and legal discourses. This is another lesson of this book: Whenever we confront and seek to evaluate arguments from failure, we need to know more about the political and legal context, including the broader institutional arrangements and legal rules in place. In other words, the question is not simply one of asking if the risk or problem at hand justifies institutional action without explicit textual authority. Rather, the first question will always have to be whether we are operating in a context where it makes sense to talk of ideas of mutual checks and inter-institutional cooperation, on the basis of which one institution might step in when another is failing. This will typically be the case within nation states, but in an international context it will often be a more challenging proposition, as we have seen. And even where we are operating within such a broader context, we will want to know more about what the specific competences of the institutions involved are and how their relationship is legally structured. In some cases, existing rules may open up possibilities for assistance or a temporary takeover quite naturally – and the more that is true, the less we need arguments from failure and might draw on a doctrine of implied powers instead. In other cases, such interventions may be much more of a stretch in legal terms. It will also matter whether the institutions seeking to assert new powers are situated in a broader institutional context and what the characteristics of the legal order in question are. In other words, are we dealing with a system with comprehensive regulatory arrangements seeking to provide for all circumstances or are we dealing with a set of piecemeal arrangements only, potentially designed a long time ago and hard to change? In the latter case, there is much more room for arguments from failure.
The legitimation and respective political power of the institutions involved also play a role. Thus, I have argued that we should consider if there exist other, more democratic means to address the problem at hand. This means that we need to consider the democratic legitimacy of the different institutions involved. In other words, it matters if these are (comparatively) inclusive institutions, such as the General Assembly of the United Nations, or not. Finally, we will want to know whether they are situated in a hegemonic position, where an abuse of powers is more likely and more dangerous, or not. In the former case, we will scrutinize any arguments from failure more carefully and apply stricter standards, whereas in the latter case – as with courts – we may be more generous.
If our analysis in those terms bears out that there is simply no room for any arguments from failure in a given context because the legal framework is strictly comprehensive and/or there are other more democratic means to address the problem, then this is where we have to stop. We face a case where arguments from failure should not be considered legitimate as a matter of comparative constitutional theory.
In contrast, if there is in principle room for arguments from failure, we must then engage with the proportionality of the expansion of powers sought in light of the failure in question. This is also where I engage the definitional question of what counts as institutional failure. As we have seen, attempts to define institutional failure in any precise manner are riddled with difficulties, given how rarely we will have an objective yardstick of what constitutes adequate performance. And while lawyers will want to rely on the violation of legal rules to determine failure, not every rights violation can qualify, as I have argued in the introduction to this book. If and when a rights violation must be considered a failure thus depends on the intended institutional responses. In other words, failure and the response to it are not just related in practice, but also conceptually. Insofar as we can approach the question on an abstract basis, it is through the lens of proportionality – and here lessons learnt from the emergency literature prove useful. Thus, we will have to assess both the functionality, necessity and overall proportionality of the alleged failure and the response to it.
This involves asking if the intended intervention is actually likely to improve matters as well as whether the failure itself warrants the takeover of the issue by another institution. It matters, therefore, if we are dealing with clear violations of human, constitutional or quasi-constitutional provisions or rights. We will further inquire how long the situation has been going on, how many people are affected and if these are particularly vulnerable people and/or particularly important and long-entrenched rights, or not.
This framework is necessarily vague, as proportionality tests generally are. Unfortunately, there is no way around that if we want to eschew the trap of universalizing where room for different institutional arrangements, politics, laws and legal and political cultures needs to be preserved. I have attempted in this book to make that room while also offering some guidance in tackling arguments from failure not just in courts and in the context of structural reform litigation but in other circumstances as well.
However, perhaps the most important point ultimately is how much the first prong of our framework, the broader institutional and legal analysis, matters in confronting arguments from failure. Proportionality tests fulfil an important function. But they also open the door to the sliding scale of necessity arguments: The greater the problem, the more will be justified to grapple with it. This problem is familiar from the emergency literature. Arguments from failure risk falling into the same trap – and perhaps especially so in circumstances where we are confronted with severe human rights abuses. Yet, we should resist the temptation to think that to alleviate grave suffering or indeed stop climate change, everything is permitted. Rules and competences continue to matter, albeit not in the way we associate – rightly or wrongly – with legal formalism, in the sense of narrow technical (‘heartless’) constraints that force us to remain inactive in such situations. Instead, they matter as part of a response that needs to be both workable and legitimate.
9.2 Challenges
How and why is all of this relevant? There are several reasons why public lawyers should care about the lessons from this book. First, many states are currently grappling with the challenges of effective and good governance. Second, and despite this, in many states our understanding of what constitutionalism entails has greatly expanded in the past two decades. Individually and in combination, these two factors will put further pressure on constitutional law to deliver ‘results’, and this has implications that public lawyers have yet to grapple with. Understanding and analyzing arguments from failure is one part of such a necessarily broader endeavour.
Start with the first point, which is often taken for granted for Global South jurisdictions. However, nearly all states currently face a range of political challenges, from ongoing wars in Ukraine and Gaza and the rise of right-wing authoritarian movements in many regions of the world to climate change. This happens at a time when many states are experiencing crises of governance, from states with persistent fragility problems to those that have been relatively stable democracies, as, for example, the United Kingdom, where a range of factors have contributed to broader dysfunctionalities of British political institutions.Footnote 1 And even where we – rightly or wrongly – have long expected things to work well, as in Europe or indeed in Germany, we find pockets of dysfunctionality, and sometimes more than that. Administration in the German state of Berlin has not for some time now conformed to the – albeit always exaggerated – ideal of German administrative capacity. Serious deficits have arisen not just in areas such as migrants’ affairs but also when it comes to something as central as organizing elections.Footnote 2 Not least, some states in Southern Europe have long been considered – rightfully or not – as dysfunctional in important respects. Talk about the ‘Latin-Americanization’ of the European Human Rights systemFootnote 3 echoes similar concerns, directed mainly towards Central and Eastern Europe. These problems are partly driven and partly exacerbated by a broader loss of trust in state institutions in nearly all regions of the world.Footnote 4 This loss of trust is often coupled with increasing political fragmentation, as the traditional post-war party system comes apart, as well as in some regions with a trend towards political polarization.
At the same time, we are experiencing a shift in our understanding of constitutionalism, one which has been ongoing for some decades at this point. The shift is away from the traditional negative-freedom-oriented model of constitutionalism towards a more comprehensive and social democratic, aspirationalFootnote 5 or transformative idea of constitutionalism.Footnote 6 Traditional or standard accounts of democracy usually start from the premise that citizens are free to decide collectively what goals and projects the state should pursue, within the boundaries of existing constitutional law, including individual rights. In the classic liberal understanding of rights, therefore, rights are understood as limitations of the powers that the constitution elsewhere grants to the state. In other words: Competences enable the state, rights limit its powers. This picture no longer adequately describes constitutionalism as it exists today in a wide range of states whose constitutions either include positive rights or directive principles and/or whose courts have read rights or directive principles to entail positive obligations for states to act. In other words, parliamentary majorities are not entirely free in the policies they pursue, but the constitution requires them to do certain things. This shift comes with many positive aspects; in particular, it allows us to understand and frame structural power imbalances and inequality as constitutional challenges that demand a political response. At the same time, it is part of a broader trend described by Kumm as the ‘era of the total constitution’, where all political questions can in principle be reframed as constitutional questions.Footnote 7
We can observe a similar development in the context of human rights law. Its scope, too, has been considerably expanded over the past decades, treating ever more political issues as questions of human rights. Today, both left progressives and conservatives frequently rely on human rights language to put forward their own political agendas. It is the left that has had the larger impact on this development so far, though this may be changing.Footnote 8
With this shift has come the expectation that law – in particular constitutional law and human rights – will and should be the tool to address and redress all injustice. As a result, the question will often arise if state institutions have done enough to protect a given right or constitutional value. This understanding will put pressure on states to respond – and on existing legal rules to be set aside where it appears necessary to better protect constitutional goals and rights.
As I said, there is much to like about this development. And of course there never was an age of ‘neutral’ or apolitical human or constitutional rights. They have always enshrined demands won in past political struggles by particular political groups. Retrenching such rights and confining them to what they used to mean fifty years ago or after the Second World War is not an attractive proposition from a politically left perspective – and it would come with some significant losses for those groups most in need of protection. Nevertheless, the heightened expectations that come with the expansion of rights and law to remedy injustice represent a shift towards output rather than input legitimacy in constitutional law, with the effective protection of rights being the output in question. This is why we have seen parallels in this book between forms of legal argument in Global South contexts and in the European Union.
Of course, considerations of effectiveness have always been relevant in constitutional law, perhaps in particular in the context of proportionality analysis. This becomes particularly clear in the work of Robert Alexy. He describes constitutional rights as optimization principles that should be realized to the greatest extent possible – a task that can be realized with the help of the proportionality principle, where rights limitations are justified as long as they are proportional to the goal pursued by the government.Footnote 9 Some scholars, such as Carl Schmitt, have accordingly understood attempts to reframe constitutional law as values as part of a move from legal to essentially economic forms of arguments.Footnote 10 Others have argued that ‘necessity’ represents an administrative way of thinking that is ultimately not compatible with legality as a limitation on the ‘overall teleological compass of administrative action’.Footnote 11 Such claims have a basis in proportionality’s origins in Prussian administrative law principles and private law thinking at the end of the nineteenth century.Footnote 12 That said, functionalist arguments are not confined to proportionality. The kind of considerations raised in proportionality analysis are standard even in systems that eschew proportionality as a constitutional principle, such as the United States.Footnote 13
What then are the consequences of all this? Are we observing the triumph of a new administrative and essentially output-focused paradigm of constitutional legality (constitutionalism 3.0), as Somek argues? We might also recall Hannah Arendt’s warning about a utilitarian approach to law, which is worth quoting here:
(Hitler’s motto that “Right is what is good for the German people” is only the vulgarized form of a conception of law which can be found everywhere and which in practice will remain ineffectual only so long as older traditions that are still effective in the constitutions prevent this.) A conception of law which identifies what is right with the notion of what is good for – for the individual, or the family, or the people, or the largest number – becomes inevitable once the absolute and transcendent measurements of religion or the law of nature have lost their authority. And this predicament is by no means solved if the unit to which the “good for” applies is as large as mankind itself. For it is quite conceivable, and even within the realm of practical political possibilities, that one fine day a highly organized and mechanized humanity will conclude quite democratically-namely by majority decision – that for humanity as a whole it would be better to liquidate certain parts thereof.Footnote 14
All of this is a long way of saying that pressure to reach certain outcomes and results poses risks both to democracy and the rule of law. This is demonstrated by the example of the European Union and even more so by plenty of authoritarian and semi-authoritarian regimes. And such risks increase as the ability of governments to deliver results is stagnating or indeed decreasing in response to current challenges.
9.3 Perspectives
How can we respond to this and where do we go from here? As I have argued above, I don’t believe that we should endeavour to return to a more classically liberal understanding of rights and constitutionalism that focuses on constraining political power. Such an understanding privileges the status quo and risks cementing existing social and political hierarchies. If we believe constitutionalism has something to say on these things, there is no way around the total constitution.
As public lawyers, it is our task to recognize the temptations that come with total constitutions and confront them in a clear-eyed manner. It means that we need to take effectiveness seriously as a source of constitutional legitimacy, in practice, but also in theory. Though there is more to be said here,Footnote 15 effectiveness and the doctrines and tools to realize effective government are part and parcel of both the theory and practice of government. Taking effectiveness seriously enables us to highlight trade-offs and conflicts that arise between the goals of making the government effective and the realization of collective or individual autonomy.Footnote 16 These conflicts should be teased out and openly addressed so as not to leave effectiveness arguments to the wrong people, to be deployed to whittle down constitutional constraints. Legality matters and constitutional provisions allocating functions and competences to different bodies need to be taken seriously. In many ways, therefore, this book is about when and why not to draw on arguments from failure, namely in most cases. The challenge will be to strike a balance: a balance between updating the law, on the one hand, in order to allow institutional adaptation to new problems and challenges as well as temporary fixes in some cases, while also preserving some limits and restraints on state power, on the other.
Add to this that the role of parliaments and administrative organs in protecting and realizing constitutional rights and/or directive principles needs to be rethought. This is all the more true as many of the newly construed positive rights or duties will involve spending new money. They thus involve questions of distribution and redistribution where a collective and democratic mode of decision-making is particularly important. In some systems, specific mechanisms to ensure a central role for parliament are already institutionally entrenched, such as in some Commonwealth countries, or exist in other, less explicit forms of weak review. In others, such as my own home jurisdiction of Germany, this is a challenge yet to be confronted. While there cannot be one model of review that will fit all systems and all contexts, Rosalind Dixon’s proposal for a responsive theory of review provides an important template for thinking about these questions in different legal systems.Footnote 17
Comparative perspectives on public law can inform such research and thinking. Public lawyers in Europe and elsewhere should therefore start looking more at countries where the challenges described here are more commonplace and judges and lawyers have been grappling with them for some time. This means in particular looking outside of Europe and – albeit not only – to Global South jurisdictions, where they will encounter both lacking state capacities and low levels of trust in public institutions as well as a broad – often transformative – understanding of constitutional law at the same time. In doing so, we will be able to learn – sometimes by inspiration through new ideas, sometimes by learning to avoid what has gone awry elsewhere. Indian public interest litigation thus may offer both inspiration and a cautionary tale of what can go wrong. European lawyers may also begin to see the United States in a new light – no longer as a beacon of the most admirable constitutional system in the world nor for that matter simply as a corrupt oligarchy, but as a state with both long-entrenched dysfunctionalities and plenty of creative politics and lawyering seeking to fix things and confront the challenges that come with such efforts. Such comparative work is not what judges and law clerks can do in the context of deciding individual cases, but it requires time and cooperation between institutions and academics in different parts of the world.
Many open questions and challenges remain. This book grapples only with a specific aspect of a much broader set of effectiveness arguments in public law. But as we have seen, arguments from failure share many of the risks as well as the promise associated with this line of arguments, albeit that they present us with a distinct structure and logic of its own. In excavating and analyzing that structure, I hope to have cast a light on the broader themes running through this book and made some progress in grappling with such arguments as a matter of constitutional theory as and when they arise. I have no doubt that many readers will remain sceptical that there can be one framework to grapple with the very different constellations in which we encounter arguments from failure. So am I. This book contains less a set of answers than a framework for paying attention. If we simply pay closer attention to arguments from failure, instead of unreflectively adopting a necessity approach, as we so often do, this itself would be a good outcome.
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