16 February 2024

A Letter from the Stabi

So? Are you all right? Safe and sound? Great.

I’m fine too, thank you. I can’t complain, as they say. I spend two or three days a week at the Berlin State Library on Potsdamer Strasse, from 9 a.m. until 9 p.m., doing what I love to do. The book I’m writing has to be finished by the beginning of May. That’s not a lot of time. But I’m making good progress. I love the “Stabi”, as it’s called, like no other place. Just like 35 years ago in Wim Wenders’s movie “Wings of Desire” (don’t let the stupid English title fool you), you can feel the presence of angels there, looking over the shoulders of the oblivious readers. Outside, where once was the wasteland of the Wall, today is the wasteland of Potsdamer Platz. Inside, however, everything is the same, the shelves, the furniture, the light, the people, the silence.

They turn the pages, chew their pens, type on their devices. Write, read, breathe. All together and each one singular. Outside, thousands may be dying in Rafah right now. The future of international law may being decided in Geneva right now. Russia may be winning the war in Ukraine right now. Donald Trump, thirsting for revenge, may be preparing for his return right now. Freedom of speech, freedom of assembly, freedom of art and freedom of science, in the name of German Staatsräson, may be thrown out of the window right now. (And then there is still the matter of climate change, of course!) I, however, don’t have time for any of that. I stay focussed on Thuringia. Eisenach, Gera, Nordhausen, Suhl. The very centre of Germany. What exactly is the situation with the police power of the state parliament president? How exactly does the municipal legal supervision in the delegated area of responsibility work? Things like that. Write, read, breathe.

Mondays and Wednesdays, I’m in the office. I’ve delegated most things, being privileged enough to be able to do that. Maxim is in charge of the editorial team and, along with Anja, Friedrich, Moritz and, more recently, Jakob and Louise, they get huge amounts of submissions processed day after day. With the help of Paula, the editorial team has also taken over the weekly editorial so that I am free to go to the Stabi on Fridays. The members of the Thuringia team are closing in on their research goals in many fields and are already tirelessly organising and realising workshops and events, giving interviews and presentations, expanding our network and others – it’s a pleasure to behold. Marie, Hannah, Friedrich, Juliana, Klaas, Janos, Lennart, Jannik, Caro, Anna: I salute you! Meanwhile, Verfassungsblog is turning itself into a proper organisation. Which requires a lot of, well, organisation. Grant applications need to be written, donors need to be contacted, new employees need to be found, recruited and trained. Evin, Luise, Keanu, Max and Derya are doing a titanic job right now.

Not everything is running smoothly. You may have noticed. But it can’t be any other way right now. All hell is breaking loose, and not just as a figure of speech, wherever you look. Not in the Stabi, though. The huge reading room with its balconies, levels, stairs, this massive, delicate architectural puff pastry full of air and light, the starry sky of the light globes high up on the ceiling, half of which unlit, the bruised, scuffed burgundy of the desk lamps and chair covers, the greenish-beige carpet full of stain marks like animal tracks in a snowy forest, the toilets, if functional at all, in an indescribable state, the cafeteria, the cloakroom lockers! Whatever is going on here, it’s not hell, though. On the contrary. The Federal Republic of Germany is still completely at home here, as damaged and broken as it may be. Next year, the reading room will be closed and renovated from top to bottom, they say. This being Berlin, I guess it’s safe to say that a) I probably won’t live to see the reopening, and b) if I do, I won’t like the results. But perhaps I’m overly pessimistic here.

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Yesterday, I bumped into Ulrich Vosgerau, the Staatsrechtslehrer of recent notoriety for his participation in that infamous Potsdam “remigration” conference the existence of which has been revealed by the investigative journalism platform Correctiv lately. I have met Vosgerau, who has been the attorney in a number of unsuccessful constitutional court cases on behalf of the AfD, when I conducted an interview with him for the Zauberlehrlinge book on the migration crisis 2015/16, him being the coiner of the term Herrschaft des Unrechts (“rule of injustice”) which had been so swiftly and gracefully adopted by our Home Secretary Horst Seehofer at the time. Vosgerau looked quite content, was my impression, as he walked about the Stabi aisles as carefree and debonair as if he owned the place. When he saw me, he grinned broadly. I quickly looked away.

Write, read, breathe. So much to do. But, if I did, I couldn’t. On Saturday, there will be another demo. Not one of the big ones, but all the more important. In Steglitz-Zehlendorf, in the wealthy south-west of Berlin, the right-wing extremist André Poggenburg from Saxony-Anhalt, who was kicked out of the AfD because he was allegedly too far-right, is giving a talk on “remigration”. The organiser is the so-called “Staatsreparatur”, a venue run by a gentleman called Andreas Wild who was also kicked out by the AfD because he was allegedly too far-right, which does not prevent the district AfD from continuing to run its office at the same address. The evening with the “remigration” specialist from Magdeburg will be hosted by the deputy district chairwoman. So: demo. Across the street, 5.30 pm, Jungfernstieg 4b in Lichterfelde-Ost. Unfortunately I can’t be there, though. I have to mow the lawn in our Uckermark place. Haven’t been out there for weeks. Domestic life. So important.

So here I am, sitting inside, and yes, thanks for asking, I’m doing great.

Outside, however, it’s different. We have decided that we want to fill this column with letters on a regular basis from now on. We want people to write to us about the places where the hell-breaking-loose things happen. We want to hear about them, and we want to hear it from legal and other academics, where they write, read, and breathe, how they feel and what they make of it all, what they see, what they hope for. Analytic, yes, them being academics, but most of all descriptive. First-person accounts welcome! If that’s you, then write to us! If you know someone who is, please forward the request! We will publish the letters in this editorial and send them out to our subscribers. We need to know more about how we are doing, don’t we?

The Week on Verfassungsblog…

The International Court of Justice has been in the spotlight for several weeks now. Aside from its role in adjudicating legal challenges to Israel’s military action, the Court has also recently announced two judgments concerning Russia’s war with Ukraine. The two most important developments in the South Africa vs. Israel proceedings have been discussed on our blog in record speed: JULIETTE MCINTYRE looks at Nicaragua’s intervention under Article 62 of the ICJ Statute and explains why Nicaragua’s intervention not only breaks new ground in procedural law, but may ultimately do a disservice to South Africa’s case. MICHAEL A. BECKER considers the new application from South Africa, which aims to prevent the ground offensive of the Israeli armed forces in Rafah and a further escalation of what is already a severe humanitarian catastrophe. The expectations placed in the Court are high, but the ICJ might find itself in a lose-lose situation after South Africa’s new application. SERGEI GOLUBOK turns to a judgment of the ICJ of January 31, in which the Court decided a case by Ukraine against Russia which turned, among other things, on Russia’s financing of pro-Russian separatists on Ukrainian territory. By largely dismissing Ukraine’s application, the Court took “a shortcut at the expense of justice”.

On Februrary 12, a decision by the Hague Court of Appeal demonstrated that the legal classification of Israel’s military actions also matters for third states. In a spectacular and widely noticed judgment, the Court halted the export of  F35 fighter jet parts to Israel due to a clear risk of serious violations of international humanitarian law. LEÓN CASTELLANOS-JANKIEWICZ unpacks why the decision is to be welcomed.

In Germany, two different draft laws have room for improvement. In light of the planned reform of the German International Criminal Law Code (VStGB), ANNE DIENELT highlights the unsatisfactory nature of the provision on war crimes against the environment. She suggests some low-threshold reform approaches and sheds light on the fundamental problems in the wording and the requirements of the provision. DANIEL HOLZNAGEL, meanwhile, focuses on the Digital Services Act (DDG-E) proposed by the German government, which is to be finalised in March and come into force in April. Among other things, he criticizes the BKA’s predicted job requirements and the draft’s vague wording.

How to cabin threats to democracy in Germany also continued to be a theme this week. KATHRIN GROH considers whether the Federal Ministry of the Interior could simply ban the AfD youth organisation (JA) under association law or whether it is afforded the same level of protection that the Basic Law grants the AfD as a party. She warns that such a shot across the AfD’s bow could backfire. Meanwhile, KONRAD DUDEN’s plea for better protection of the Federal Constitutional Court through so-called organic laws is now also available in English.

In Poland, the new government faces the monumental task of reversing the institutional changes of the authoritarian-populist PiS party. But where to start? The list is long and complex, with the requirement that re-democratisation measures must comply with the rule of law adding further difficulty. JOHN MORIJN has some suggestions on how to order and organize the restoration of a liberal democratic order.

Speaking of illiberal measures, last week, Slovakia’s parliament approved an amendment to its criminal code that could significantly reduce statutes of limitation for crimes such as rape. MAX STEUER details why this amounts to an assault on the criminal legal system by the illiberal ruling coalition. Elsewhere, Italy, a country that currently lacks universal jurisdiction for international crimes, is deliberating on a proposed bill advocating for the use of universal jurisdiction in cases of surrogacy, referred to as “rented uterus”. PAOLO CAROLI and ANTONIO VERCELLONE contend that the underlying political motive behind this bill is to curb all forms of same-sex parenthood, inadvertently resulting in a criminal law framework that would specifically impact male-gay couples.

At the European level, following years of negotiations, the vote on an EU Supply Chain Act was postponed at the very last minute. The FDP decided against the directive, naming considerable liability risks for companies as one of the reasons. PAUL MEDER suggests a way to move forward. The European Parliament is also and once again trying to tackle the problem of how to apportion its seats between member states. On 14 February 2024, the Parliament’s Constitutional Affairs Committee (AFCO) organised a workshop to consider three alternative formulae. ANDREW DUFF  outlines these proposals and explains the challenges of finding a methodical approach to seat apportionment in the European Parliament.

Europe’s courts have been busy considering and confronting thorny questions relating to migration control. CHRISTEL QUERTON looks at two pending cases before the CJEU that provide an opportunity to consolidate group-based refugee protection, specifically for individuals fleeing gender-based persecution. SARAH TAS and AGOSTINA PIRRELLO, meanwhile, commend the European Court of Human Rights for highlighting the problem of operational and regulatory opacity in border management in the case of Alkhatib and Others v. Greece. The Court’s findings highlight avenues to achieve accountability for human rights violations that are committed at Europe’s borders.

 

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In India, the Bombay High Court has ruled on the constitutionality of the Information Technology Rules. The question was whether the government’s Fact Check Unit can oblige platforms to delete “fake news”. KARTIK KALRA sees two very different concepts of truth in the judgment.

In Argentina, new President Javier Milei has issued a radical and unprecedented Omnibus Executive Order (DNU) 70/23, titled “Bases for the Economic Reconstruction of the Argentine Republic” to pursue his governmental agenda of reducing the size and expenses of the state. CAROLINA FERNANDEZ BLANCO and VICTORIA KRISTAN map some constitutional questions that arise with Milei’s choice of governing by decree. 

Verfassungsblog Debate

This week, our debate on 30 years of the Russian constitution came to an end after a total of eight texts. OLGA PODOPLELOVA shows how the Russian Constitutional Court became a tool of authoritarian transformation and discusses the court’s most notorious judgements. BILL BOWRING sheds light on how the European Convention on Human Rights briefly had a positive influence on the Russian legal system and explains why this chapter has now been closed. NIKOLAI BOBRINSKY reflects on a post-Putin Russia and how to prevent impunity for perpetrators under the Putin dictatorship. DMITRY DUBROVSKIY analyzes the change of teaching international human rights in Russian universities over the last 30 years and identifies a re-Sovietisation of the Russian education system. Finishing off, WILLIAM PARTLETT shows how the centralisation of political power through the Russian constitution paved the way for authoritarianism. The blog debate was organised in cooperation with the Sakharov Society, founded in 2021.

Last but not least, we are very happy to host a fantastic project by students and young researchers from the University of Hamburg. In “Outstanding Women of International, European and Constitutional Law”, we publish a monthly portrait of a woman who has made an outstanding contribution to constitutional, European or international law. VERENA KAHL starts off with a portrait of CHRISTINE DE PIZAN.

That’s all for this week. Take care and all the best,

the Verfassungsblog Editorial Team


SUGGESTED CITATION  Steinbeis, Maximilian: A Letter from the Stabi, VerfBlog, 2024/2/16, https://verfassungsblog.de/a-letter-from-the-stabi/, DOI: 10.59704/aca73f445bf53441.

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