• Länder Power-Sharing in International Relations and European Affairs
  
  • Treaty-Making Power
  • Foreign Political Relations
  • Transfer of Sovereign Powers and European Decision-Making

Länder Power-Sharing in International Relations and European Affairs

Treaty-Making Power

Although one of the core features of federalism is that the conduct of international relations is basically and predominantly a matter for the federal level, numerous federal systems attribute partial powers in international relations to their constituent units, either through their constitutions or through non-constitutional practices developed between the national and sub-national levels. The German federal structure does so in both of these ways.

Under Art. 32 of the Basic Law the Länder have the right to be ‘consulted in sufficient time’ before the federation concludes ‘a treaty affecting the special circumstances of a Land’. Also, it stipulates that ‘in so far as the Länder have the power to legislate, they may, with the consent of the Federal Government, conclude treaties with foreign states’ (Art. 32/3). The wording of this latter provision allows room for two different interpretations of the question of treaty-making powers in the fields of exclusive competence of the Länder. On the one hand the Länder maintain that this power resides exclusively with them and that the transformation of obligations arising from such treaties into German law is thus also a matter of their exclusive competence. On the other, the federation insists that it has a concurrent competence in this field of treaty-making power, irrespective of the allocation of corresponding functions in the area of transformation. This difference of opinion has never been settled legally, but a mode of practice has been developed in a way typical of German federalism which allows both sides to hold their respective views without disturbing the conduct of business.

The basis of this arrangement, laid down in the so-called Lindau Agreement of 1957, is the assumption by the Länder that the federation acts on their behalf when negotiating or signing foreign treaties which either partly or wholly regulate matters of their competence. In exchange for empowering the Federation to act on their behalf, the Länder have secured for themselves wide-ranging rights of participation which deny the Federation the right to sign such treaties without previously securing their unanimous consent. The central institution in the operation of that Agreement is the Permanent Treaty Commission of the Länder. Its function is to communicate demands of the Länder concerning draft treaties of the kind described above to the Federal Government and to coordinate their recommendations both within and between the Länder. The consent of all of them must be secured before obligations created by the treaty achieve validity under international law. The legislative process of ratification, beginning with the treaty being sent to the Bundesrat, does not normally start before the Federal Government has asked for the consent of the Länder to be given. International ratification by the depositing of the document of ratification under international law can, in any case, not be inaugurated unless and before all the Länder cabinets have conveyed their consent to the Federal Government on the basis of the recommendations of the Treaty Commission. If international treaties ‘touch upon the essential interests of the Länder’ without necessarily being relevant to any of their exclusive competences, the Länder must also be informed ‘as early as possible about the proposed conclusion of such treaties so that they can voice their demands in due time’. The conclusion of the respective treaty is, however, not dependent on unanimous Länder consent as in the case of exclusive Länder competences being involved. Nevertheless, under the principle of federal comity [ See further below and in Philip Blair & Peter Cullen, ‘Federalism, Legalism and Political Reality: The Record of the Federal Constitutional Court’, in C. Jeffery (ed), Recasting German Federalism , op.cit.] the Federal Government is still obliged to take into account the opinion of the Länder and normally does so as far as it can in the course of negotiations.

Foreign Political Relations

Outside the area of treaty-making, political representatives of the Länder have frequently regarded themselves as entitled to maintain informal relations, below the level of formal diplomacy, with foreign states. [ As detailed, for example, in the case of Brandenburg by Raimund Krämer, ‘The Transfederal Relations of the East German Länder: The Case of Brandenburg’, in C. Jeffery (ed), Recasting German Federalism , op.cit.] There is nothing in the Basic Law to bar them from doing so as long as the principle of federal comity is not disregarded, meaning here in particular that any political guidelines set in foreign relations by the federation must not be counteracted by such contacts. In matters of foreign affairs concerning relations with political and/or administrative counterparts below the level of the nation-states, the Länder have always considered themselves free of constitutional restriction. Their right to communicate directly with foreign regions, provinces or autonomous communities was, indeed, confirmed in one of the first decisions of the Federal Constitutional Court. [ BVerfGE 2, 266.] In association with the ‘European Amendments’ to the Basic Law enacted in 1992 (see below), they have now constitutionally obtained the power to transfer sovereign rights of their own to ‘transfrontier institutions in neighbouring regions’ with the consent of the Federal Government (Art. 24/1a).

Transfer of Sovereign Powers and European Decision-Making

The question of transfers of sovereignty brings us to a peculiar feature of the German Constitution. Ever since 1949 the federation has had the competence to ‘transfer sovereign powers to international institutions’, particularly to the European Community, under Art. 24. This competence refers undisputedly to the transfer of both federal and Länder powers. This ‘power of integration’ increasingly came to be seen as ‘the open flank of the federal order’, as it legitimised intrusions of European law areas of Länder competence. In order to guard this open flank, the Länder persistently sought and ultimately secured constitutional rights of participation in the exercise of the Federal Government's functions in the organs of the European Community, now the European Union, above all in the Council of Ministers. These rights are contained as the cornerstone of the ‘European Amendments’ of 1992 in the new Article 23 of the Basic Law, which was enacted in connection with the ratification of the Maastricht Treaty. It is sufficient here to note that the main difference as compared with the field of treaty-making in bi- or multi-lateral international relations lies in the fact that in the field of participation in European decision-making the principle of majority-voting applies (as this participation is now fully integrated into Bundesrat business) as compared to the unanimity required on the part of the Länder in the field of treaty-making.