Art, Science, Research and Teaching Are Free
My book is finished. The manuscript is delivered, proofread, typeset, corrected, will be printed and delivered and available in your preferred bookstore from 22 July. I keep suffering mild bouts of panic twice or thrice a day about possible mistakes I might have overlooked or whether I should have phrased this or that differently. But none of that matters now. It’s done, it’s out. It will have to stand for itself now. There’s nothing more I can do except wait, hope and keep my fingers crossed. Anyone with grown-up children will know the feeling. If you wish to pre-order: this way please!
This means, among other things, that you’ll be hearing from me more. I can’t and won’t promise that I’ll write you an editorial every week like I did before my book-writing break, but I can promise that I’ll do it more often again. I would like to thank the many letter writers from different corners of the world who have filled this column since February and shared their experiences and perspectives with us, as well as you for staying with us and hopefully continuing to do so while we continue to develop and improve this wonderfully experimental format.
Keeping my mouth shut and my brain focussed on my manuscript during my break wasn’t always easy. These have been very eventful months, to say the least. A fortnight ago at the re:publica conference, I had the opportunity to talk about our Thuringia project (if you missed it: here), and for this occasion I had Article 5 para. 3 sentence 1 of the Grundgesetz printed on a T-shirt: Art, science, research and teaching are free. You can buy the shirt here. A small contribution to the defence of fundamental rights. Certainly can’t hurt in these times.
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Art, science, research and teaching are free. A small contribution to the defence of our fundamental rights.
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The Federal Ministry of Education and Science has – fittingly – proclaimed the current year 2024 the “Year of Science” under the motto “Freedom” and is currently dispatching an “exhibition ship MS Wissenschaft” throughout the republic to encourage “a dialogue about the value of freedom and its meaning”. I had the opportunity to enter into that kind of dialogue at the re:publica directly after and Bijan Moini’s related talks, because the organisers had set up a podium on the same stage 2, on which, to my surprise, our Federal BundesBILDministerin Bettina Stark-Watzinger (FDP) took a seat in order to solemnly call on the audience to defend freedom in general and that of science in particular on the 75th anniversary of the Basic Law. Once I had overcome my astonishment, I decided to take her at her word and raised my hand: would the Minister perhaps consider an apology for casting doubts on the constitutional loyalty of 1000+ mostly academic signatories (disclosure: I was one of them) of an open letter about the Berlin student protests, please?
She didn’t, of course, and, as far as I know, still hasn’t. I was unaware at this point of the fact that the Ministry’s top brass had already decided to have their legal experts explore possibilities to hold the signatories criminally accountable and/or withdraw their research funding. There are, however, alhamdullilah!, still civil servants in the Federal Government who stand firmly on the Boden of the Grundgesetz which had previously been surveyed in such an interestingly way by the Minister of Science, and therefore did not hesitate to inform their bosses in no uncertain terms about that Boden’s external limits. After this was leaked to the press, State Secretary Sabine Döring, herself originally a professor of philosophy and apparently the person who had launched that investigation, declared that the Ministry’s top management had “promptly … clarified that aspects of funding law should not be part of (the) legal review” and that the “withdrawal of funding (…) was not under discussion in the top management”. The Ministry remains unable or unwilling to explain how this is to be reconciled with the leaked emails which seem to prove the exact opposite. I, for one, fail to see how it could. Either way, an apology won’t do. This calls for a resignation.
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But even that would hardly be enough to stop the authoritarian crackdown on the fundamental rights to freedom of research, arts or otherwise, which is already in full swing in many places. In the German capital Berlin, Senator for Justice Felor Badenberg (CDU) wants to enshrine a new principle in Section 23 of the state budget regulations that state funding may not be used to disseminate “anti-Semitic, racist or other inhuman content”. In response to Ronen Steinke’s worried question as to who is supposed to decide what lies on this or that side of this boundary, the Senator, herself a former Vice President of the Federal Office for the Protection of the Constitution, replies: well, who else but the Office for the Protection of the Constitution.
What art is shown in museums, what plays are performed on stages and what discussions are held in universities must not be a decision made by a security agency under the control of the Ministry of the Interior, but solely by academia and the arts themselves. Otherwise they are not free. Otherwise we are living in an authoritarian regime. Whether this state of affairs is created through direct instruction and coercion or indirectly through the withdrawal of funding, the result remains the same. The AfD dreams of having the power to use the funding lever to cut off the air supply to all science and art that gets in the way of its idea of national identity. Of course it does. It is an authoritarian populist party.
After all, following the Stark-Watzinger scoop, the liberal reflexes in the German public sphere still seem to be functional to some extent. Even FAZ and WELT don’t think this is cool – while being all the more eager to trivialise it away from the authoritarian alarm zone as “displacement activity” or the result of “cluelessness” and, I kid you not, ministerial “boredom”. Nonetheless. There is still a reasonably robust social consensus about what constitutes the liberal democratic state order in the Federal Republic of Germany. That is not nothing. In fact, it’s a lot. As long as that is the case, some confidence remains.
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The Week on Verfassungsblog
The citizens of the European Union have elected their Parliament. As a major democratic event, this is a reason for celebration, but the outcome also raises concerns – because once again, authoritarian-populist forces have emerged stronger from the elections. This will not only affect coalitions and the election of Commission President but will also shape the work of the European institutions. JANNIK JANSEN and THU NGUYEN analyze the election results, discuss Ursula von der Leyen’s paths to a second term, and explain why the disruptions following the elections at the national level also affect the European Union.
The most significant political disruptions following the European elections are currently being experienced in France. There, Marine Le Pen’s Rassemblement National overshadowed Macron’s Renaisance party. However, the larger tremor followed immediately: on Sunday, Macron announced new elections to be held on June 30 and July 7. A highly risky move, analyzes GIOVANNI CAPOCCIA, – and explains what Macron’s calculation might have been.
The elections last week were not only in the European Union but also in Belarus. Or better to say, outside of Belarus. After Sviatlana Tsikhanouskaya left Belarus in 2020, together with some 300,000 other supporters, they have been trying to penetrate the autocratic regime of Alexander Lukashenka from the outside. They organized the election for an exiled substitute assembly. Yet, merely 7,000 people participated in the vote. JULIA EMTSEVA explains how the exiled opposition, unfortunately, lost its much-needed further democratic legitimacy.
Donald Trump was convicted in New York of forging business documents in connection with a hush money payment to a porn actress. This makes him the first president of the USA to be a convicted criminal. Trump has already announced that he will pardon himself if he is elected. VICENTE MEDINA points out two issues here. On the one hand, the moral dubiousness of making a convicted criminal head of state. On the other hand, he suggests that such self-pardons should be ruled out by an amendment to the constitution.
The applications of the Chief Prosecutor of the International Criminal Court for arrest warrants against members of Hamas and the Israeli government have already been a topic on our blog. In Germany, the applications recently led to a discussion about whether an arrest warrant against Israeli Prime Minister Benjamin Netanyahu would be executed by Germany. Some argued that the ICC does not have jurisdiction over Palestine, others pointed out that Netanyahu’s immunity should be respected. Why both arguments are incorrect is explained by KAI AMBOS, STEFANIE BOCK, JULIA GENEUSS, FLORIAN JEßBERGER, CLAUS KREß, STEFAN OETER, ANDREAS PAULUS, STEFAN TALMON und ANDREAS ZIMMERMANN.
International criminal law has also played a prominent role in the German Bundestag recently. On 6 June 2024, the Bundestag passed the “Act on the Further Development of International Criminal Law”. The German Code of Crimes against International Law has been in force for more than 20 years and, after a long time without application, a legal practice with international significance has developed in recent years. German courts and law enforcement agencies have made legal history with successful cases involving Syrian state torture and IS crimes. At the same time, practice has also shown that the existing legal framework has gaps. Where these gaps have been successfully closed, and where not, is explained by ISABELLE HASSFURTHER (an English version of the blog post is available here).
Another issue addressed by the German Bundestag this week is examined by SIMON SIMANOVSKI. After Federal Minister of Economics Robert Habeck announced plans to “pause” the German Supply Chain Act for two years, the CDU/CSU parliamentary group quickly took up the proposal and is demanding in a draft law that the act be repealed. There are significant doubts about the compatibility of this approach with European law, according to Simanovski.
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The International Tribunal for the Law of the Sea (ITLOS) delivered a long-awaited Advisory Opinion on climate change and international law – a historic event for international law and the development of state obligations in combating climate change. We joined forces with the Climate Law Blog of the Sabin Center for Climate Change Law and invited globally leading experts to discuss the Advisory Opinion. All texts are available here. Stay tuned for further expert opinions.
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Last week, the German government decided to reintroduce the “Wohngemeinnützigkeit” (common good housing). The 2024 Annual Tax Act will also incorporate the “promotion of housing non-profit purposes” into § 52 of the Fiscal Code, which lists charitable purposes under tax law. Has the federal government thereby created an effective instrument in the fight against the housing crisis? And what role does the German Grundgesetz play in all of this? EMMA SAMMET has answers.
Also last week, Chancellor Scholz announced a significantly tougher stance on deportations to Afghanistan and Syria. Severe criminals and dangerous individuals are to be deported to these two countries. Is this a realistic proposal? Or nothing more than election campaign bluster? DANIEL THYM discusses guidelines for authorities and courts – and the role of politics in all this.
Three years after the European Public Prosecutor’s Office (EPPO) started, the EPPO looks like a toothless tiger. Looking at Bulgaria, frequently shaken by scandals implicating abuses of EU funds and known for rampant corruption, RADOSVETA VASSILEVA sadly concludes that the EPPO reminds her of a domesticated rather than a fierce wild cat.
On May 18, Croatia observed a Remembrance Day of those killed in Bleiburg in 1945 – a group that included members of the Ustasha movement, a Nazi collaborationist faction during WWII. This Memorial Day controversially depicts Ustasha as fighters for Croatia’s freedom and independence. CARNA PISTAN argues that such a narrative not only distorts historical facts but dishonours the memory of the victims of Ustasha atrocities. Additionally, it affirms values contrary to the country’s Constitution and fails to align with international standards on memorialization and the EU politics of memory.
The requirement of supermajorities in the election of Italy’s constitutional judges has, in combination with a changed political landscape, led to political deadlocks, entailing the risk of jeopardizing the Court’s operability and partisanship-based appointments. CORRADO CARUSO and PIETRO FARAGUNA express their concern. Likewise in Italy, the introduction of psycho-academic tests for the access to the judiciary, which includes both the careers of judge and public prosecutor, has sparked heated debates. EMANUELE COCCHIARA looks at the reasons behind this proposal and analyzes why it is causing quite a stir.
The recent report on Germany by the Council of Europe Commissioner for Human Rights following her visit in late 2023 records an alarming situation regarding social inequality in Germany. NAZLI AGHAZADEH-WEGENER and SOPHIA STELZHAMMER observe that the Federal Government’s reaction to the report was harsh and look into the situation of social rights by the yardstick of binding international standards.
Binding international standards challenge Germany also in labor law: Yesterday, ILO Convention No. 190 entered into force. The convention relies on occupational health and safety measures to prevent violence and harassment in the workplace. German companies have a lot of catching up to do here – and so does German legislation, as VANESSA VON WULFEN and EVA KOCHER show.
Next week, the CJEU has the opportunity to counteract the overcriminalisation of humanitarian assistance that has been spreading across the EU. The Kinsa-Case asks the Court to determine whether the Facilitator’s Package is incompatible with the Charter’s proportionality principle. STEFANO ZIRULIA explains why the Court should find that it is.
Safe Third Country Lists have been a central tool in how the EU governs access to refugee protection. In a recent opinion, the Attorney General provides clarification on two core issues that surround the concept’s use: the use of territorial exceptions and the scope of judicial review. KAROLINA MICHKOVÁ explains how, if adopted, the AG’s suggestion could enhance refugee protection.
The Swiss Federal Administrative Court has denied a food company protection for the “Bimbo QSR” sign for it violated the immorality clause. It saw no conflict with the Swiss provision on freedom of expression and information. JOHANN-JAKOB CHERVET looks to the US for an alternative approach to the relationship between trade mark registration and freedom of expression, and advocates for a restrictive interpretation of the Swiss immorality clause.
According to Sect. 45 of the Criminal Code, a conviction can lead to the loss of the right to vote and to stand as a candidate in elections. FLORIAN SLOGSNAT argues that this provision embodies an outdated understanding of criminal law and is also largely unconstitutional. He therefore proposes that it be repealed and replaced by a corrective measure along the lines of Article 70 of the German Criminal Code (disqualification from exercising a profession).
The Blog Symposium continues: Unboxing the New EU Corporate Sustainability Due Diligence Directive
Companies in Europe have been legally obliged to respect human rights and the environment during their business operations due to the final positive vote in the European Council on the Corporate Sustainability Due Diligence Directive (CSDDD). The Directive now forms part of a global effort of Business and Human Rights enthusiasts to establish mandatory human rights due diligence obligations for companies.
In cooperation with the German Institute for Human Rights, this week VIRGNIE ROUAS, JULIA OTTEN andDANIEL TORAN look at which environmental impacts are covered by the CSDDD and how they are addressed. In two parts, they offer a starting point for the debate and evaluate the CSDDD´s influence. In this context FINN ROBIN SCHUFFT, CEREN YILDIZ and ANNA ASEEVA evaluate the directive’s shift towards real corporate environmental accountability and its potential to help protect biological diversity.PADMADOLMA FIELITZ, MELINA GIRARDI FACHIN and DANIELLE ANNE PAMPLONA continue to break down the rightsholder-centred approach of article 13. On the other hand, RADU MARES addresses the risks of the mandatory human rights and environmental due diligence requirements for developing countries. HUMBERTO CANTU RIVERA closes the Symposium by exploring the CSDDD’s implementation on an international and regional level and the directive’s impact on the national legislative landscape.
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That’s all for this week. Take care and all the best,
the Verfassungsblog Editorial Team
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