Austrian Foreign Relations: Federal Precedence and Informal Regional Linkages

Austrian Foreign Relations:
Federal Precedence and
Informal Regional Linkages
As one of the older European federal systems, Austria’s constitution of
1920 originally did not provide any role for its constituent units – the
Länder – on the international stage. Under the traditional understanding
that international legal standing is reserved for the federal state as a whole,
all foreign powers have been concentrated in the federation. For the task
of carrying out international obligations domestically, however, the internal
division of powers between the Federation and the Länder remains in
place. The federation is responsible for fulfilling its obligations stemming
from international treaties, and has therefore been vested with considerable
powers of control to ensure compliance by the Länder within their jurisdictions.
In exchange, the Länder must be consulted before any treaty that might
have an impact on their sphere is concluded by the federation. Generally,
consultation of some kind takes place when appropriate, but none of the
instruments to coerce implementation has ever been used. The fact that they
exist has prevented blatant breaches of treaty obligations by the Länder. When
violations do occur and entail liability for compensation, the responsible
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16 Stefan Hammer
Land has to bear the costs. However, because the constitution lacks explicit
rules, courts have become involved at times.
Over time, the growth of international relations has increased their impact
on the Länder, and the demand for cross-border coordination and cooperation
in local and regional affairs has increased. For several decades, the
Länder have been trying to bypass the federal monopoly in foreign affairs by
creating a network of informal transnational arrangements. Although these
agreements deal with governmental affairs, they cannot attain legal force
under national public law or under international law. Nevertheless, they have
been watched with increasing suspicion by the federal government, which
lacks control over the conclusion of such agreements. On the other hand, the
Länder governments have shown an increasing desire to have their transnational
cooperation transformed into legally binding instruments.
The respective interests on both sides seemed to coincide when in 1989, by
amendment to the federal Constitution, the Austrian Länder were granted
the power to conclude international treaties with adjacent states or their component
units within their sphere of competence. For the Länder, this opened
the possibility of raising their transnational arrangements to the level of international
law, but in exchange the federation succeeded in stipulating a complex
framework of control over the conclusion of such treaties. The federal
government must be informed before negotiations can start and it has to give
its assent before the treaty may be concluded. In addition, full powers for
both negotiations and conclusion must be issued by the federal president.
These treaties are also subject to the same federal
control regarding implementation as federal treaties.
Thus, treaty obligations agreed to by a Land are
viewed by the Constitution as if they were treaty obligations
binding directly on the Republic of Austria.
Under the constitutional doctrine which bars
the Länder from independent international standing,
their treaty-making power has not offered
them enough flexibility and has thus never been
used in practice. Instead, the Länder have pursued
their transnational cooperation on an informal
level. This did not change under the European Outline Convention on
Transfrontier Cooperation, adopted in 1980 to facilitate collaboration across
border regions. In particular, Austria did not allow for legal bodies across the
border as envisaged by the Protocol to the Convention adopted in 1995.
Austria’s accession to the European Union (EU) in 1994 reinforced the
position of the Länder in intergovernmental relations on matters of European
integration, compensating them for the curtailment of their jurisdiction by
European legislation. On the one hand, federal control over the implementation
of EU law by the Länder may be exercised only after a breach of
European Law has been stated by the EU. On the other hand, any measure
Treaty obligations
agreed to by a Land
are viewed by the
Constitution as if
they were treaty
obligations binding
directly on the
Republic of Austria.
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to be taken on the European level which might have an impact on Länder
powers is subject to a sophisticated consultation procedure. This consultation
procedure can result in a common position of the Länder that can even bind
the Federation’s position in the European decision-making process.
Moreover, the Länder are entitled to be represented in Austrian delegations
to the EU. With those instruments, the Länder have repeatedly succeeded in
shaping the Federation’s European policy.
Beyond that, the Länder seek to influence European regional policy
directly at the European level. Besides their formal standing in the
Committee of Regions, they associate with other European regions in
several informal or private bodies in order to develop a comprehensive
European Politics of Regions. In that context, they also coordinate their
respective domestic positions vis-à-vis their central governments.
Conversely, the EU, in the framework of its cohesion policy, seeks to promote
direct cross-border cooperation among regions. As the governments of
member states are directly involved in setting up concrete projects, this intensifies
not only cross-border cooperation as such, but also, on the Austrian
side, internal coordination between the different levels of the federal system,
including the municipal level. European and domestic politics are about to
merge on a third, polycentric level of European decision making by transnational
authorities. For these, European law has recently offered a new structure
vested with legal personality, the so-called “European grouping of territorial
cooperation”. Because EU law prevails over the law of the member
states, it could easily overcome the barriers which the Austrian constitution
imposes on foreign relations of sub-national entities. EU law also exceeds the
legal impact of the European Outline Convention, which will remain relevant
for Austria only with regard to non-members of the EU and for matters
outside the scope of EU law.
Yet the prospect of developing new, albeit functionally restricted, regional
bodies across national borders is not being warmly embraced. Informal
coordination and lobbying under the traditional legal framework seems to
be preferred by the Austrian Länder themselves. This corresponds to their
increasing role as informal political actors in an environment of economic
globalization generally. Their newly-intensified diplomatic endeavours to
open up new foreign markets for the domestic economy are being supported
by the federal government, as long as they have no legal repercussions
on the federation on the international level. Together with federal diplomatic
representatives, national trade associations and private enterprises,
they make up an informal network of Austrian economic foreign policy.
Overall, growth and diversification of foreign relations have considerably
augmented the functions of regional governance in Austria. As the
federation however, retains its legal precedence, the political role of the
Länder is developing through informal linkages and networks which do not
easily lend themselves to democratic transparency and accountability.
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