The “pseudo doctrine”, still a real problem
In her post “The ‘pseudo doctrine’ – a pseudo problem?” Raffaela Kunz reviews my thesis “Das Scheininstitut der unmittelbaren Anwendbarkeit“. Her friendly and well written review raises a few questions, so I am most happy to have the chance for a response. In general Kunz follows my line of arguments but she raises some conceptual doubts and moreover questions the relevance of the abolishment of the pseudo-doctrine of direct applicability (hereafter Scheininstitut).
Kunz wonders whether my definition of law is suitable. The definition of law I use is indeed rather narrow and I received some criticism for it. But I think that especially in international law we have to be careful to keep up the separation of binding norms of law and other (non-binding) norms. The best way I can see to do this in a coherent manner is to separate them by the theoretical relevance of non-compliance. With norms of law, a breaking of a norm by one party is at least intended to be followed by a reaction of another party (pp. 89). Empirically this reaction often might not follow, especially with human rights treaties. In my opinion this should not lead to an alteration of the concept of law, as the danger is to lose any clear definition of law. But this opinion can be discussed.
Kunz further states that my work implies a strictly monistic view on international law. In the book, I tried to show that that the doctrine is used both in monistic and dualistic systems (pp. 125). I therefore leave it to each individual state whether it follows a dualistic or monistic conception of international law. My general approach I see as rather dualistic: All the norms I looked at have been introduced in some way or another (depending on the state) into the national law (for Germany pp. 168, for Chile pp. 199). No international norm could penetrate the veil of national sovereignty without the decision of the nationally relevant organ (p. 73). In contrary, one of my critiques on the discussion of the Scheininstitut is that ratification and implementation of international treaties are not always clearly distinguished (p. 125). If this was to be done, as well the issue of separation of power would lose its edge. Most often the implementation is an act of the legislative power and not the executive. Or to put it the other way around, whoever has the power to implement the norms of an (ratified) international treaty into national law, acts as a legislator. In some jurisdictions this might be done by other organs than the parliament, but it does not change the functional assignment and is a question of each constitution.
This issue is connected to the question whether I closely enough investigated the conflicts between norms. Indeed, I did not include a separate chapter about this question. However, I touched it repeatedly. Due to my rather dualistic concept I have no need to raise the question of conflicts between national and international norms. I only have to discuss conflicts between different national norms. This is mainly a question of hierarchy (p. 145, for Germany 169-183, for Chile pp. 199) and in parts a question of lex specialis and lex posteriori (pp. 146).
Relevance of the Scheininstitut
Kunz’ main concern is that the abolishment of the Scheininstitut will not be a great step forward. Her view is based on an interesting change of perspectives: instead of my focus on the implementation of treaties she focuses on how national courts deal with the rulings of international courts. I coincide with her opinion that more rulings from international courts reduce the problem of direct applicability of norms. It though seems to me that these courts are mainly active in areas of civil and political (cp) rights. The three main examples Kunz draws on in her SSRN paper are a case on the freedom of press/freedom of expression (Argentina), a case on Art. 7 ECHR (Italy), a case on the right to just satisfaction (Russia) and the right to strike (Germany). All of these rights are (at least historically) cp rights. My impression is that this is a general tendency of both courts in Kunz’ focus, though I cannot quote figures for this assumption other than Wikipedia. If I am right, the focus on court rulings only helps to overcome the question of direct applicability for cp human rights. This might be a step forward, but for the cp human rights the direct applicability was never that much contested. Looking at the economic, social and cultural (esc) human rights there are less judgements to be transformed. Even more, for the ICESCR there is no well-established court to help with the implementation in the first place.
Additionally, the relevance of the Scheininstitut is not strictly limited to international law. It happens that courts decide to declare a norm of national law as inapplicable as well. The most discussed norms are parts of the South African (for a sum up see Trilsch). So even in the case that some international treaties would be dealt with in another way, the question of direct applicability will still be there.
Thus, I think that in the legal context of esc rights, the (pseudo)-doctrine will stay relevant for some time to come.
To sum up Kunz’ critique that my rather formalistic line of argument will not lead to a more effective implementation of international law in general probably is correct (even more so, as my arguments are written in German). However, I sustain that my analysis can help to structure the debate and lead to a more precise reasoning in academia and a franker argumentation in politics. This means that ideally courts that want to abide by international law are less distracted by the Scheininstitut of direct applicability, but also that courts that do not want to follow international law will have to find other lines or arguments for not doing so.
Jakob Lohmann is a German qualified lawyer and currently works as a full time dad. He can be contacted at firstname.lastname@example.org.
Cite as: Jakob Lohmann, “The ‘pseudo doctrine’, still a real problem”, Völkerrechtsblog, 25 March 2020, doi: 10.17176/20200325-123046-0.