# B: Right to Instruct [Halberstam]


Halberstam, Daniel. Of Power and Responsibility: The Political Morality of Federal Systems. Virginia Law Review, Vol. 90, No. 3 (May, 2004), pp. 731-834.


“Should all else fail, the federal government may, with the consent of the Bundesrat, “take the necessary measures to hold the Land to the fulfillment of its duties by way of federal coercion.’” (775).

Footnote to former sentence: “To carry out this federal coercion, the federal government or its commissioner has the right of instruction with regard to all Lander and their agencies.” GG art. 37, para. 2. This provision has never been used” (775)

“Stewardship is thus the affirmative obligation to take action on behalf of the Community. It differs from the ordinary duties of assistance (where inaction is not an option either) in that stewardship requires a member state to formulate and implement policy on its own where the political institutions of the Community have failed to take action, including any action instructing the member states on what to do. This issue arose prominently, for example, when the Commission sued the United Kingdom for failing to protect the endangered herring stock in waters subject to the United Kingdom’s jurisdiction. Although the Community was empowered to act and had indeed acted in the past, it failed to reauthorize conservation measures due to policy disagreements in the Council.’ The court held that, as a result, “it was for the Member States, as regards the maritime zones coming within their jurisdiction, to take the necessary conservation measures in the common interest.”‘ The court noted that “so far as the facts are concerned it is not in dispute that according to the available scientific opinions recognized by all parties a total ban on fishing was required.”‘ Moreover, Ireland had been able to take conservation measures within a few days of the expiration of the Community restrictions.’ Accordingly, the United Kingdom “had a legal duty under Community law to prohibit all direct fishing” for the herring in its own waters.’ In other words, the political deadlock at the Community level meant that the member states (according to the court) were under a duty to act as stewards for the interests of the Community.’” (779-780).


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