Conclusion of international treaties in federal states

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To conclude international agreements in states that can total State (federal) or the constituent units (provinces, cantons) have the right. The degree competence results from the national constitutional law of the respective state as a whole.

Subsequently, however, the question of domestic implementation also arises. The problem can arise here that the state as a whole concludes an international treaty with third countries , which it can, however, fulfill because the treaty also regulates matters which, according to its constitution , fall within the competence of the member states . According to the generally applicable provisions of international law (cf. Art. 27 Vienna Convention on the Law of Treaties ), a state cannot invoke its domestic law (including its constitution) vis-à-vis its contracting parties in order to justify non-performance of a treaty.

In some cases, the national constitutions contain regulations that enable the state as a whole to enforce the implementation of the treaties it has concluded even if these actually include matters that are not the responsibility of the state as a whole. In some cases, such regulations are contained in contracts between the state as a whole and the member states, such as the Lindau Agreement in the Federal Republic of Germany.

In some cases, the international treaties themselves take into account in a federal state clause the case that the state as a whole lacks the possibility of implementation.

Constitutional situation in individual states

This article or paragraph describes the situation in Germany , Austria and Switzerland . Help me to describe the situation in other countries.

Germany

For the first time in the Peace of Osnabrück in 1648, the German territories were granted the right to form alliances with each other and with foreign states and to exchange envoys. The constitution of the North German Confederation and the Reich constitution of 1871 restricted this right, the Weimar constitution abolished the legation law.

The federal relationship between the Federation and the Länder with regard to relations with foreign states (so-called association competence ) has been regulated in Article 32 of the Basic Law since 1949 . It is disputed whether Article 32.3 of the Basic Law gives the federal states an exclusive right to conclude contracts, provided they have legislative competence, or whether this is only a competing right to conclude contracts and the federal government is empowered by Article 32.1 of the Basic Law to enter into contracts to be concluded even where the federal states have exclusive legislative competence. The Lindau Agreement of 1957 endeavors to reach a procedural compromise in order to avoid conflicts of competence. According to Art. 4 lit. b of the agreement, the permanent contract commission of the federal states is available as a discussion partner for the Federal Foreign Office or the other competent federal departments at the time of the negotiation of international contracts. After its deliberations on a draft treaty, the Commission makes a coordinated unanimous declaration on behalf of the federal states, which is forwarded to the Foreign Office by the Commission chairman.

In 1990 the federal states placed particular emphasis on their participation in the negotiations between the federal government and the GDR on the reunification of Germany and in the process of European integration .

In 1990, after approval by the federal government, the federal states concluded an agreement with the French Republic on the Franco-German cultural channel ARTE .

In affairs of the European Union the act Bundestag and the Bundesrat (the countries with 23 Art. Para 2 sentence. 1 GG). The details have been regulated since 1993 by the law on cooperation between the federal and state governments in matters of the European Union (EUZBLG). After the Lisbon judgment of the Federal Constitutional Court , the Integration Responsibility Act (IntVG) was added, supplemented by a federal-state agreement.

Austria

External affairs, including political and economic representation abroad, in particular the conclusion of international treaties , are a matter for the Confederation in accordance with Article 10, Paragraph 1, Item 2 of the Federal Constitutional Act (B-VG). The states , according to Art. 16 para. 1 to complete the Federal Constitution only in matters which fall within their autonomous sphere, treaties with Austria to neighboring states or their constituent states. If the federal government itself concludes the treaties, it must give the states the opportunity to comment. If the federal states submit a uniform statement, the federal government is bound by it (Art. 10 para. 3 B-VG). If the states want to conclude contracts themselves, the state government requires authorization from the Federal President and the consent of the Federal Government to conclude the contract . The federal government must be informed of such a state treaty before negotiations can begin. It can ask the state to terminate the contract at any time. In any case, the federal government also has the right to monitor matters that are part of the independent sphere of activity of the federal states when executing international treaties (Art. 16 Paragraphs 4 and 5 B-VG).

When Austria joined the European Union on January 1, 1995, a separate section B. European Union (Art. 23a to 23k B-VG) was added to the B-VG. Although the Federal Constitution lays down the framework for the state participation procedure, it leaves the details to an agreement in accordance with Art. 15a B-VG (Art. 23d Para. 4 B-VG). Thereupon the agreement between the federal government and the federal states according to Art. 15a B-VG on the participation rights of the federal states and municipalities in matters of European integration and the agreement according to Art. 15a B-VG on the common decision-making of the federal states in matters of European integration were adopted closed.

Switzerland

The Federal Constitution of the Swiss Confederation (BV) of 1999 makes it clear in Article 54, Paragraph 1 that foreign affairs are a matter for the Confederation. However , according to Art. 55, the cantons are involved in foreign policy decisions . The Confederation provides the cantons with comprehensive and timely information and obtains their opinions. If the cantons are affected in their competences, they are also entitled to participate in international negotiations. The details are regulated in a federal law. There is also an agreement between the Swiss Confederation and the cantons on cooperation in European politics.

According to Art. 56 BV, the cantons may themselves conclude contracts with foreign countries in their area of ​​responsibility after informing the federal government.

Certain international treaties are subject to an optional referendum ( Art. 141 BV).

Anglo-American legal family

The US constitution stipulates “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” As interpreted by the Supreme Court, there is exclusive federal jurisdiction to conclude international treaties and for their national implementation. Other examples include federal entities in the Commonwealth , Australia, India, and the Central African Federation from 1953 to 1963.

See also

literature

  • Rudolf Bernhardt : The conclusion of international agreements in the federal state. An investigation into German and foreign federal law. Cologne, Berlin 1957.
  • Bardo Fassbender : The open state. Studies on foreign violence and the subjectivity of federal states in Europe. Tübingen 2007. ISBN 978-3-16-149218-1 .

Web links

Individual evidence

  1. ^ Art. VIII, 2 Peace of Westphalia - Treaty of Osnabrück
  2. ^ Walter Rudolf : International Relations of the German States. Archives of International Law 1966, pp. 53–74
  3. ↑ Questions about the so-called Lindau Agreement and the Permanent Contract Commission of the Länder Scientific Services of the German Bundestag , drafted on October 31, 2016
  4. ^ Lindau Agreement (text) lexeakt.de, accessed on April 22, 2020.
  5. ↑ cf. also § 26 Participation of the federal states in the guidelines for the treatment of international treaties (RvV) according to § 72 para. 6 GGO , as of July 1, 2019
  6. ↑ Christian Bücker, Malte Köster: The permanent contract commission of the states. JuS 2005, pp. 976-978
  7. ^ Gunnar Schuster: International Law Practice of the Federal Republic of Germany in 1990. ZaöRV 1992, p. 837 ff.
  8. ^ Agreement between the states of Baden-Württemberg, Free State of Bavaria, Berlin, Free Hanseatic City of Bremen, Free and Hanseatic City of Hamburg, Hesse, Lower Saxony, North Rhine-Westphalia, Rhineland Palatinate, Saarland, Schleswig-Holstein and the French Republic on the European television culture channel from October 2nd 1990
  9. ↑ Excerpts from two intergovernmental agreements for the establishment of the European cultural channel ARTE in 1990 and 1991, themed portal European history, accessed on April 22, 2020.
  10. ↑ Art. 23 GG in the version of the law amending the Basic Law of December 21, 1992, Federal Law Gazette I p. 2086
  11. ↑ Law on cooperation between the federal government and the states in matters of the European Union of March 12, 1993, Federal Law Gazette I p. 313
  12. ↑ Law on the exercise of responsibility for integration by the Bundestag and the Bundesrat in matters of the European Union (Integration Responsibility Act - IntVG) of September 22, 2009, Federal Law Gazette I p. 3022
  13. ↑ Bund-Länder agreement on matters of the European Union of June 10, 2010. bundesrat.de, accessed on April 23, 2020.
  14. ↑ Cooperation with federal states and the Federal Council on EU issues Federal Foreign Office , April 9, 2020.
  15. ^ Franz Merli : Constitutional foundations of cross-border cooperation in Austria. In: Hans Martin Tschudi, Benjamin Schindler, Alexander Ruch et al. (Ed.): Cross-border cooperation in Switzerland. Dike Verlag 2014, pp. 199–213.
  16. ↑ Christoph Gräfling: Indirect European Policy in the Federal State of Carinthia Institute for European Integration Research, Working Paper No. 01/2012, pp. 87 ff.
  17. ↑ Federal Law Gazette No. 775/1992
  18. ↑ Upper Austria. LGBl. No. 22/1993
  19. ↑ Martin Kayser, Dagmar Richter: The new Swiss Federal Constitution ZaöRV 1999, p. 1053 ff.
  20. ↑ Federal Act of December 22, 1999 on the participation of the cantons in federal foreign policy (BGMK) , SR 138.1
  21. ↑ Claude Schenker: Practical Guide to International Treaties, 2015 edition, p. 8
  22. ↑ Agreement between the Swiss Confederation, represented by the Federal Department of Foreign Affairs (FDFA) and the Federal Department of Economic Affairs (FDEA) as well as the cantons, represented by the Conference of Cantonal Governments (KdK), on the political dialogue between the Confederation and the cantons on European issues from 5. June 2012
  23. ↑ Missouri v. Holland, 252 U.S. 416 (1920); US v. Curtiss-Wright Export Corp. et al. 299 U.S. 304 (1936); US v. Belmont 301 US 324 (1937), and US v. Pink 315 US 203 (1941).
  24. ^ Robert G. Neumann : Federal Structure and Foreign Violence in the Constitutional Reality of the United States. International Yearbook of Politics, 1954, p. 360 ff.
  25. ↑ Joseph H. Kaiser : The fulfillment of the international treaties of the federal government by the states: Concordat judgment of the Federal Constitutional Court ZaöRV 1957, p. 526, 546 f.