New Variations on Old Themes
1 w h e n one reads today about the crises and problems facing NATO, it is worth realizing that they are essentially new variations on very old themes. Indeed, when one looks back at the thirty years of NATO, one finds barely a moment when the Alliance was not said to be in a crisis-and very often it was. The Alliance began at the time of the first Berlin crisis, and its signature came shortly before the end of the Soviet blockade, in spring, 1949. As soon as the ink was dry on the treaty’s paper, a battle began over German rearmament, and intensified after what was seen as the Soviet offensive in Korea. That battle lasted several years. As soon as a formula had been found for rearming the West Germans, the Suez crisis racked the Alliance; and as soon as that episode had been liquidated, Mr. Khrushchev began to bang shoes, threaten to bury us, and provoke another set of Berlin crises. That in turn led to another protracted intra-Alliance dispute over the famous-or infamousMulti-Lateral Force (MLF), which fostered not only discord among the allies but also an intellectual civil war among the academic members of the U.S. strategic community. That crisis more or less coincided with another long battle over General de Gaulle’s idiosyncracies and his decision to withdraw France from the military organization of the Alliance. The latest shock was the crisis of 1973-74 over the Middle East and the oil embargo. Even the present dilemmas pale by comparison. On the other hand, during the few periods that did not have any major crisis, the Europeans usually charged that they were being neglected by the Americans. That was the case during the exceptional period from 1969-the year of de Gaulle’s disappearance from the political scene-to Mr. Kissinger’s bizarre desire to christen 1973 the Year of the Continent, thus mixing the categories of time and space. (There was, during those quiet years, a crisis that agitated American-European relations, but not in NATO itself: the monetary crisis that began when President Nixon and Secretary of the Treasury Connally put an end to the convertibility of the dollar.)
Arms Control Enters the Gray Area
If a Strategic ArmsLimitation Treaty is reached and ratified, ceilings and subceilings will have been placed on the number of launchers from which the U.S. and the U.S.S.R. could attack each other over intercontinental distances. If the SALT process is then to continue, the reductions in such ceilings and subceilings becomes an obvious goal of further negotiations. Since both national leaders have endorsed reductions in numbers on numerous occasions,’ it is even more likely that this will be a central feature of negotiations when they resume after SALT 11. Yet, progress in reductions could be an illusion if at least a start is not made in bringing weapons of lesser range under control. These are the gray area weapons that can reach targets 400 to 2,000 miles or more distant from the point of launch. For the most part these weapons are concentrated in Europe and the western military districts of the Soviet Union. These gray area weapons unconstrained by either SALT2 or MBFR3 consist of a wide array of medium bombers, fighter-
Law in a law-governed union (Recht in einer Rechtsunion) : the Court of Justice of the European Union and the free law doctrine
The Court of Justice of the European Union characterizes the Union as a Rechtsunion: a law-governed union. The conception of “the law” in Article 19 paragraph 1 of the Treaty on European Union transcends the Treaties, according to the Vice-President of the Court of Justice, Koen Lenaerts. This thesis demonstrates with reference to the work of Georg Jellinek that the Union is a non-sovereign state and, with reference to the work of Eugen Ehrlich in particular, that the state-based perception of law is a misperception. Not all production of law is reserved to the state and not all law is state-recognized law. There is extra-state law. It has been alleged that the Court of Justice of the European Union has had “a free law attitude”. The author discusses the free law doctrine developed at the beginning of the twentieth century and has made literal translations of writings in German, French and Italian by the main representatives of the free law movement. The free law doctrine provides a descriptive framework for the case-law of courts. The author describes the creation by the Court of Justice of four constitutional principles of Union law through its case-law. He concludes that every court is, to quote Hermann Kantorowicz, praeter legem law-creatively active and has, in that sense, a free law attitude. The decisions of judges are often volitional decisions. How the law will be applied should be predictable but volitional decisions, because they are unpredictable, are inconsistent with the principle of legal certainty. In the Union and its member states the judiciary and not the statute or “the law” is pre-eminent. The author suggests how the concept of law should be defined in a material Rechtsunion. He argues that societal legal norms could be provided with an appropriate position consistent with the principle of legal certainty by making the validity of a societal legal norm contingent on its material lawfulness.