International Law

Secret Law Developments

By Karl-Friedrich Lenz

The European Court of Justice has decided on the question I blogged before, that is, as in my last post on the matter

“the idiocy of EU flight security regulations that are not published in the Official Journal, a practice that reaches almost American levels of contempt for basic requirements of democracy and rule of law.”

The plaintiff in that case boarded a plane with tennis rackets in his hand luggage. He was forced to leave the plane, since tennis rackets are prohibited by a aviation security Commission Regulation that was never published in the Official Journal.

The Court decides that any such Regulation has no binding force on individuals as long as it is not published. The Court starts out correctly in paragraph 42:

” It must be noted at the outset that, under Article 254(2) EC, regulations of the Council and of the Commission are published in the Official Journal of the European Union and enter into force on the date specified in them or, in the absence thereof, on the twentieth day following that of their publication. It is evident from the very wording of the provisions of that article that a Community regulation cannot take effect in law unless it has been published in the Official Journal of the European Union (see Case C-161/06 Skoma-Lux [2007] ECR I?10841, paragraph 33).”

This is only common sense. However, reading further, one gets the impression that the Court wants this basic requirement of democracy limited to such rules that impose obligations on individuals, and leave room for secret law that imposes obligations only on Member States. That would be wrong, since clearly Article 254 (2) EC requires publication regardless of the content of the legislation concerned.

Anyway, one notes with relief that in a clear cut case like this the Court decided against secret law. See also this post at EU Law Blog.

Meanwhile in America, the secret constitutional law under the previous administration was published. See Greenwald’s analysis. No big deal, only complete reversal of the Bill of Rights and presidential power to use military force against anybody anywhere. In other words, America has been a military dictatorship for a couple of years without announcing the fact openly. Just what anyone paying attention would have expected.

While it is a step in the right direction to at least release this information, the possibility of a Secret Constitution has not been renounced. Therefore, we have no way to know exactly what is the status of the American Constitution under the new administration.

And while secret aviation security law is a challenge to basic principles of democracy, a Secret Constitution means removing them completely. That is not compatible with an oath of protecting the Constitution.

Another development concerns access to the negotiation documents on the ACTA (Anti-Counterfeiting Trade Agreement). As Suber explains, the European Union Parliament requested these to be public, while the Obama administration just denied a FOIA request for the files.

Since this is another undemocratic secret legislation process I have no idea what exactly this Trade Agreement is supposed to do. But as of now, I am firmly opposed, since I think there is no valid reason whatsoever to conduct these negotiations in complete secrecy.

Full post as published by Lenz Blog on March 16, 2009 (boomark / email).