On January 15th 1958, the German Bundesverfassungsgericht (Federal Constitutional Court - FCC) pronounced a judgement deemed to be a prime example for the Court's early jurisprudence concerning the scope of fundamental rights in Germany: The Court's famous “Lüth”-decision resulted from a constitutional complaint brought by Erich Lüth, former member of the Hamburg senate.* In the early 1950s, Lüth had called upon film distributors and the public to boycott Veit Harlan's tearjerker movie Unsterbliche Geliebte (Immortal Beloved). Cause for his appeal was Harlan's prominent role in the Nazi propaganda machinery as Goebbels' protégé and director of the movie Jud Süss in 1940, which counts as one of the worst anti-semitic films released during the Nazi regime. After having lost several civil lawsuits, Lüth asserted the violation of constitutional rights. Over six years later, he was to be proved correct: The Federal Constitutional Court ruled that Lüth's complaint was covered by the right to freedom of speech guaranteed in Art. 5 of the German Basic Law (Grundgesetz). The Court stated that the fundamental rights as laid down in the Grundgesetz are not only of importance as subjective rights protecting the individual against state intrusions on the private sphere. As a whole they also unfold an objective dimension in representing society's crucial values. Therefore, they govern the entire legal order - including civil law and private law relations! This was indeed understood as a staggering conclusion with which the Court went far beyond the issue at stake. Since Lüth, German legal discourse characterizes this phenomenon as the third-party or horizontal effect of basic rights (Drittwirkung).

This year's 6th Joint Conference held by the American and Dutch Societies of International Law and organised by the T.M.C. Asser Institute in The Hague focused on the increasing importance of the role of non-state actors in international law and at the same time provided an opportunity for American and European lawyers to address recent differences between the U.S. and Europe, e.g. on the use of force in Iraq. Consequently one of the three major issues of the conference was the response to international terrorism, while other issues included the role of international organizations as well as transnational corporations in international law.

In recent years it has become a truism that after the Cold War Europe no longer plays the important role it used to play. The focus of US foreign policy seemed to shift away from Europe towards other regions like the Middle East or Asia. This process is even accelerated by the recent disagreement of European politicians with respect to the U.S. led military action against Iraq. The climax of this development was Chancellor Schröder's strict and explicit rejection of a German role in any form of military action against Iraq, be it sanctioned by a UN Security Council resolution or not. German Federal Minister of Justice Herta Däubler-Gmelin was axed in the wake of the tensions and replaced by Brigitte Zypries after she compared Bush's war against terrorism with Hitler's strategy to concentrate on foreign policy in order to distract attention from domestic problems (thereby, as the Economist put it, giving a fine example of “the pot calling the kettle black.”).

In response to the violence of the international system, “realist” approaches are flourishing. In the aftermath of “9/11”, gulf war No. 3, the challenge to the achievements of international law and the unchallengeable dominance of the US military-industrial complex, this is particularly noticeable. Theories which affirm an anarchical world without any international regulation, in which only the application of military power guarantees freedom and security are gaining credibility. This everyday understanding is also employed in Robert Kagan's essay. While “the Americans” exercise power in an anarchical international system, “the Europeans” aim for a post-historical paradise of peace and relative prosperity. The fuss about Kagan's essay can hardly be explained by a rich analysis of the current international situation, for it does not supply this. It is even more surprising that the superficial pattern of interpretation considers that the essay expresses a “fundamental truth of the international system,” which is only articulated once in ten years. But we want to argue that it is not about “truth,” but about the production and propagation of a hegemonic discourse. Accordingly Kagan must be perceived as what he is: the co-founder of the reactionary think tank “Project for a New American Century”; an intellectual belonging to the neo-conservative leadership structure, a group that pressed the ideological case for the war against Iraq.

The School of German Law at the Jagellonian University in Cracow was established in 1997 as joint academic undertaking of the Law Faculties of the three Universities Ruprecht Karls- University (Heidelberg, Germany), Johannes Gutenberg-University (Mainz, Germany) and Jagellonian University (Cracow, Poland). The initiators and first directors of the School were Professor Kazimierz Lankosz (Cracow), Professor Horst Konzen (Mainz), and Professor Peter Hommelhoff (Heidelberg). The 5th anniversary of the School in 2002 provides a good opportunity to sum up the activity of the School until now and to ventilate some thoughts on the future plans for this innovative undertaking, which already had proven to have gone well beyond its original boundaries.

To be both a dean and an international lawyer requires perpetual optimism and great tolerance for dealing with uncertainty. Drawing on those characteristics, I will try to offer one positive account of how globalization can be used to improve human rights. I will say at the outset that there is no panacea here. This is at best a very partial solution, but at least a constructive one.

To introduce Bruno Simma to the readers of German Law Journal is both an easy and a difficult task. An easy one because it will hardly be necessary to introduce his writings to those who have done only the slightest research in public international law– from his textbook “Universelles Völkerrecht” of 1976, co-authored with his teacher and mentor Alfred Verdross and still widely cited in German literature and jurisprudence, to the Commentary of the Charter of the United Nations which he first edited (in German) in 1991, the second English edition of which was published last year by Oxford University Press. On the other hand, writing on Bruno Simma is a difficult task because many of you will already have got a personal impression already – meeting him in Munich, where he has been teaching international and European law for no less than thirty years, in Ann Arbor/Michigan, where he is member of the affiliate overseas faculty of the University of Michigan Law School (since 1997) after teaching there for more than ten years, or at the Academies in The Hague or Florence, where he has taught much-acclaimed and -cited lectures on the move of international law “from bilateralism to community interest” and the relationship between human rights law and general international law. An even broader audience has come to know him for his public appearances in the press, the radio or television, in particular for his characterization of the dilemma of the Kosovo intervention as a “thin red line” between legality and morality. His article on “NATO, the UN and the Use of Force” appeared on the Webpages of the European Journal of International Law – the leading European international law journal he co-founded in 1990 and still co-edits – even before the first shots were fired.

Both internationalists and national constitutionalists are currently reflecting on changes in the basic structures of public law. From the national perspective, the process of globalization puts into question the hitherto generally accepted position of constitutional law as being at the top of the pyramid of norms. In international law, the development of subject-oriented régimes has led to a proliferation of international courts and other bodies entrusted with the resolution of disputes. This tendency entails a danger of fragmentation which contrasts with the current tendency to discover processes of constitutionalization in international law. Starting from the functions of the constitution in national law, the following paper develops in the first part elements of constitutionalization in international law in general (I.). In the second part, the identified problems are elaborated upon in more detail with respect to the law of the World Trade Organization (II.).

“To be honest,” remarked Lord Scott with dry humor when we left Villa La Pietra, -“to be honest, I passed no single room where I would simply feel comfortable after a long day's labors.” However, the British Lord of Appeal in Ordinary thinks highly of the arts, certainly no less than his colleagues from Washington, Paris, Rome, Karlsruhe and Luxemburg with whom he explored the collections at La Pietra on this midsummer afternoon. But the wealth and variety of the artworks assembled during the course of the last century by English eccentrics and their assemblage according to fairly personal esthetic criteria relieve the visitor barely for a moment of concentrated observation, requiring permanent attention – and considerate behavior in the midst of irreplaceable treasures.