bluuebunny/crossref_metadata_2025 huggingface dataset:
The Concept of the “Legislative” Act in the Constitutional Treaty
Authors: Türk Alexander
Published: March 2019

The constitutionalism of the Community legal order as an evolutionary process of transforming an international organisation into a constitutional legal order has found its latest expression in the Treaty Establishing a Constitution for Europe. This document evokes the language of the constitutional state when it refers to “this Constitution” in Article I-1 and expresses its gratitude to the “European Convention for having prepared the draft of this Constitution on behalf of the citizens and States of Europe.” However, ambiguity is not far behind. The length of the document resembles a carefully drafted prenuptial agreement rather than a constitutional text. Moreover, the reference to the Constitution cannot disguise the fact that it has been adopted as an international treaty in the usual procedure of an Intergovernmental Conference and will have to be ratified by each and every Member State to enter into force.
The European Commission's White Paper on European Governance: The Uneasy Relationship Between Public Participation and Democracy
Authors: Radermacher Ludger
Published: March 2019

The European Commission's White Paper on European Governance has attracted numerous critical comments. Some scholars seem to suggest that the whole project was over ambitious and doomed to failure from the outset, since the Commission could not complete the project without calling into question its own functional self understanding. Broadly speaking, most of the comments in the White Paper draw attention to the neglect of what is considered the European Union's core problem, that is the presumed lack of democratic legitimacy.
Essay: What Constitution for Europe. Can a Gathering of Assorted Musicians Create a Harmony?
Authors: Goodwin Morag
Published: March 2019

The bewildering number of articles and books which concern or touch upon the European constitutional debate remind one, at times, of a children's orchestra in which each child plays as loud as possible (more in order to hear themselves than to make themselves heard) and without listening carefully to the parts of others. The result is, simultaneously, an inharmonious cacophony of individual instruments to the skilled listener; an encompassing and confusing wall of sound to the amateur. Refined only slightly, the crude and unoriginal analogy is not far off the mark in describing the community of scholars working in the field of European constitutionalism: it is rare to find a commentator willing to grasp the score as a whole; most choosing, instead, to focus only on their section. Interdisciplinary research seems to be just as often proclaimed as it is ignored. While it would be both undesirable and impossible to have (keeping with musical metaphor) everyone singing from the same song-sheet, an orchestra can accommodate a wide variety of sounds and parts before it descends into the sort of tuneless noise one associates with so many school orchestras.
The division of powers between the EU and the Member States with regard to deliberate release of GMOs (the new Directive 2001/18)
Authors: Dabrowska Patrycja
Published: March 2019

The first directives regulating the use and trade of genetically modified organisms (GMOs) were adopted at the Community level in 1990. These acts formed a core of the Community gene technology legal regime and harmonised the authorisation procedures prior to both contained use and deliberate release of genetically modified organisms. Accordingly, no GMO may be placed on the European Union market without obtaining a written consent for it and only after an appropriate environmental risk assessment has been carried out. Under the old Deliberate Release Directive 90/220, 18 GM products were allowed to be placed on the Community market following either the Commission decisions or Member States consent and over 1000 were notified to the Member States authorities for experimental purposes.
Anti-Extremism, Negative Republicanism, Civic Society: Three Paradigms for Banning Political Parties - Part I
Authors: Niesen Peter
Published: March 2019

Restrictions on political association and expression are problematic from a democratic point view. The default assumption seems to be that democracy minimally entails that all citizens have claims to participate in the legislative programming of society, which, given the size and complexity of democratic societies, they have to realize to a significant degree as participants in the debates of a political public sphere or through their membership in and support for political organisations such as parties. If they lack such chances, political decisions will lack democratic legitimacy. Where the law prohibits such options, \“it cuts off the possibility of participating in the open ended future required by democracy. Precisely to the extent the law imposes a version of what the future can or cannot be …[people] are reduced to heteronomous subjects, instead of autonomous citizens.\” It follows that the burden of justification for future-constraining regulations on freedom of association and expression is on those who propose and favour them.
Facilitating Private Applicants’ Access to the European Courts ? On the Possible Impact of the CFI's Ruling inJégo-Quéré
Authors: Hanf Dominik
Published: March 2019

On May 3rd, 2002 the Court of First Instance (CFI) issued its ruling in the caseJégo-Quéré. According to its press release published at the same day, the CFI had undergone the task to “redefine the rules governing individual access to the Community courts” recognizing, thus, “the need to ensure effective protection of legal rights for European citizens and businesses.”
The Human Rights Summer Course at the EUI in Florence
Authors: Feyerbacher Florence
Published: March 2019

From 17th to 28th of June 2002, the thirteenth session of the Academy of European Law took place at the European University Institute in Florence [http://www.iue.it]. Each summer, the Academy organizes a summer course compromised of a two-week human rights and a two-week European Union Law course. For the first time this year, the participation in only either one of the two courses was possible.
Is it ‘grossly unfair’ if a husband has to pay maintenance to his separated wife who has a close relationship with a homosexual man? (Judgment of the Federal Court of Justice of 20 March 2002)
Authors: Scheiwe Kirsten
Published: March 2019

On 20 March 2002, the XIIth Senate of the Bundesgerichtshof (BGH - Federal Court of Justice), the highest appeal court in civil law matters, was called to decide a case in which a separated husband had made an application to change a periodical maintenance payment order, arguing mainly that his wife no longer living with him had a close relationship with another man and that it was therefore an undue hardship to him, in the sense of para. 1597 no. 7 Bürgerliches Gesetzbuch (BGB - German Civil Code), to continue periodical maintenance payments at all. The separated wife argued that she did not cohabit with the man and had no intimate sexual relationship with him, since he was homosexual, that therefore no marriage-like relationship existed and maintenance payments should continue unchanged, since this obligation was no undue hardship towards the obliged spouse. The Federal Court of Justice judged in the last instance that the decision of the lower court, which had reduced the maintenance obligation, was correct, since the facts showed that a marriage-like relationship between the separated wife and her close friend existed; whether or not they had intimate sexual relations did not matter.
The Right of Self-Defence and The “War on Terrorism” One Year after September 11
Authors: Schmalenbach Kirsten
Published: March 2019

The destruction of the World Trade Center and a wing of the Pentagon by three highjacked civilian airliners and the crash of a fourth in Pennsylvania on September 11, 2001 constitute without a doubt the high point of terrorist attacks on the United States to date. The terrorists’ methods, their destructive force and the attacks’ economic and political effects are all without precedent. After September 11, the organisation responsible was quickly identified, namely a terrorist group based in Afghanistan, Al Qaeda, headed by a Saudi expatriate, Osama bin Laden. After a request for his extradition was denied by the ruling Taliban, the United States and the United Kingdom conducted airstrikes against targets in Afghanistan beginning on October 7. As soon as late November 2001, the Taliban's fate was sealed. The uninterrupted bombardment of the US Air Force helped the Northern Alliance gain decisive ground in its campaign against the regime. On December 15, 2001, the various Afghan opposition groups signed a treaty on the Petersberg near Bonn, Germany, that established an interim government. The government's establishment put an end to the Taliban's rule, but it did not put an end to international terrorism with its various goals and interwoven structures.
“Freiburg Lawyers’ Declaration” of 10 February 2003 – On German Participation In A War Against Iraq
Authors: Ambos Kai ,   et. aux.
Published: March 2019

[Editors’ Comment: As is well known, opposition to a possible war against Iraq has been, within the Western world, among the strongest in Germany. Accurately sensing an overwhelming rejection of any armed intervention in Iraq among the German populace, the Social-Democrat / Green coalition government led by Chancellor Gerhard Schröder and Foreign Minister Joschka Fischer began to take a stance against the forcible disarmament of Iraq and the toppling of the regime of Iraqi President Saddam Hussein during their reelection campaign in the fall of 2002. Since then, and in the face of an ever more undisguised intention on part of the Bush administration to go ahead with a war under all circumstances, Schröder and Fischer have reiterated and reinforced their position, going as far as to rule out any active German participation in an armed intervention even if such was eventually called for by the Security Council. The German government's position has been complicated by the fact that Germany is currently an elected member of the Security Council, and held its rotating presidency in the month of February. Its relations with the United States have been strained on account of the incompatibility of views on how to resolve the Iraq crisis, and Germany has increasingly found itself in an isolated position on the international plane, though it has recently been joined by France and Russia in its attempts to yet avoid a war. The Christian-Democratic and Liberal opposition have alleged that the Schröder government has internationally isolated the country, and, worse, alienated it from its traditionally strongest ally, the United States, in order to distract from its current domestic unpopularity. Be this as it may, it is probably true to say that the great majority of Germans across all sections of society are genuinely strongly opposed to a war. Such pacifist sentiments link back to the peace movement of the late 1970s and 1980s which saw an equally broad cross-section of society march side by side to protest against the military build-up of the Cold War, and which, among others, brought about the Green party itself. Critics have alleged then and now that such radical pacifism is both naive and the wrong lesson to be learned from Germany's omnipresent Nazi-past. Interestingly, the non UN-sanctioned intervention in Kosovo had the strong support of both this just re-elected government, as well as the general public, although the more mainstream adherents of a German ‘no’ to an Iraq intervention point to the very different circumstances in that case.
Conference Impressions: The Persisting Riddle of Fundamental Rights Jurisprudence and the Role of the Constitutional Court in a Democratic State
Authors: Barnert Elena , Doll Natascha
Published: March 2019

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).
The European Company – A Challenge to Academics, Legislatures and Practitioners
Authors: Teichmann Christoph
Published: March 2019

The European Company – orSocietas Europaea(SE) – has been referred to as the “flagship of European Company Law”. This is certainly true if one considers the ambitious origins of the project. In 1970, the European Commission presented the first draft of the Statute for a European Company. A completely autonomous European legal form was intended, freely floating above the national legal forms and based solely on the sturdy branch of a purely European corporate law. The text of 1970 was, in substance, a complete code of corporate law. From the management structure to shareholders’ actions, from the law of corporate groups (Konzernrecht) to accounting law, from tax law to co-determination – every regulation required in a modern corporate law was provided for.
Coherence and Consistency in European Consumer Contract Law: a Progress Report
Authors: Calliess Gralf-Peter
Published: March 2019

“Certainty is so essential, that law cannot even be just without it”, Francis Bacon once observed in the good old times. In the context of the general 20thcentury's trend from formal to substantive justice, however, policy objectives such as distributive justice, democratic political governance, or effective transnational regulation increasingly came to the focus of private law legislation. The rise of “consumerism” in contract law istheparadigmatic example of this development, which – at least from a German perspective – was triggered mainly by European measures on the harmonisation of private laws. While all intellectual capacities were absorbed by “regulating contracts” in the light of the new principle of “contractual solidarity”, the basic need of a legal system for overall consistency as a prerequisite for the administration of justice (“treating like cases alike”) obviously got out of sight. The critique with regard to pointillism and eclecticism in the European approach to private law harmonisation (“piecemeal legislation”), which lead to the patchwork character of the acquis communautaire, is a common place today, even within the European Commission. However, the conclusion, that has to be drawn, is not formulated straight forward: As consistency goes, arbitrariness comes, an inconsistent law is a contradictio in adjecto.
The End of the “Woodward and Bernstein” Era? The German Constitutional Court and Journalists’ Privacy on Mobile Phones
Authors: Albers Marion , Witzke Stefanie
Published: March 2019

In a society in which communication is increasingly mediated by electronic networks the methods of police investigation change. Instead of traditional methods like questioning and plain-view surveillance, the police increasingly prefer the surveillance of communications mediated by networks. The corresponding methods offer possibilities of gaining information which were not available before. Especially if the police use them without preliminary knowledge or a base suspicion at an early stage of the investigation, these methods are characterized by their scope: they result in the collection of a lot of irrelevant information and they affect many uninvolved and innocent persons. But at the same time they may furnish exactly the evidence the police are looking for: the phone number and whereabouts of the suspect; the conversation that verifies participation in an offense. It can be no surprise that these methods have become the central methods of investigation.
Reconstructing Iraq and Who Pays: Is There an International Responsibility to Reconstruct a Country Destroyed by War?
Authors: Kunzmann Katharina
Published: March 2019

As soon as major fighting was over the public discussion focussed on the question who would reconstruct Iraq and repair the damages caused by the hostilities. While the most discussed question concerned the countries or companies actually carrying out the reconstruction, the question of who would finance it played a minor role in the public discussion.
This Too Shall Pass: A Response to Kagan's Power and Weakness.
Authors: Bratspies Rebecca M.
Published: March 2019

Robert Kagan's essay Power and Weakness is a masterful articulation of the neo-conservative vision. That said, it is surely the essay's fabulous timing, rather than its content, that has set the international law community abuzz. The vision itself is not new–it has been circulating for at least a decade.
“Volenti non fit inuria” - How to make a principle work
Authors: Bachmann Gregor
Published: March 2019

The ancient Latin sayingvolenti non fit iniuria(loosely translated: if you consent you cannot complain) denotes a legal principle on a par with principles such aspacta sunt servandaornon concedit venire contra factum proprium. As a defence to tort claims well established in both the civil and the common law tradition, the phrase articulates an universal value that has never been seriously contested. Why, then, does a young German scholar devote a completehabilitation(professoral thesis) to the study of such an expression? The answer is clear: as with any general principle of law, the problems start once you try to apply them to a specific case. Unlike rules, principles do not lend themselves to easy execution but require thorough reasoning, taking into account the fact that principles may workboth ways. For example, if a seller does not deliver the promised good in time, he may invoke the principle ofpacta sunt servandain order to convince a judge that despite his breach the contract should be upheld. Likewise, the buyer may claim that, since the seller did not keep his promise (i.e., violated the said principle), she does not have to keep hers either.
“Critical Legal Thought: An American-German Debate” An Introduction at the Occasion of Its Republication in the German Law Journal 25 Years Later
Authors: Joerges Christian
Published: March 2019

The motivation and agenda of the German contributors to the “German-American Debate on Critical Legal Thought”, were not, and certainly could not, be uniform, neither within the American nor the German group of participants, let alone between Americans and Germans. It seemed nevertheless obvious at the time that we shared a number of concerns. Four seemed obvious and particularly important: Uneasiness, albeit for different reasons, with our respective mainstream traditions; a concern for social justice, albeit in different societies and with different priorities; the critique of our educational systems though they differed so markedly; an awareness of the discrepancies between the law on the books and the law in action which generated contextual studies and all sorts of “law and…” endeavors. Neither during the laborious preparations of the 1986 conference nor during the equally demanding publication process and not even with hindsight is it conceivable to identify comprehensively and exactly our communalities and differences. This is why we have decided to write separate introductions. Mine will proceed in three steps. The first is a reconstruction of German, more precisely: my own, motivation and agenda (A). The second step reproduces in the form of an essay the proposal submitted to the Volkswagen Foundation in 1985, the funding organization for the conference (B). The third summarizes much more briefly what I see as accomplishments and failures - and ensuing challenges (C).
“Critical Legal Thought: An American-German Debate” An Introduction at the Occasion of Its Republication in the German Law Journal 25 Years Later
Authors: Trubek David M.
Published: March 2019

It is not easy to remember the thoughts and feelings that accompanied the American contingent's participation in the 1986 Bremen conference and which led to this volume. Time has eroded memories. But more than that, there is no single “American” set of thoughts and feelings to recall. Although we shared a desire to explore critical legal thought with colleagues from Germany, we were, in fact, a very heterogeneous group. We came together — momentarily — for the Bremen conference but we approached it from different perspectives, participated from different motives, and went different ways in the years after the publication of the book.
Liberal Rights and Critical Legal Theory
Authors: Olsen Frances
Published: March 2019

So much has been written about liberal rights and critical legal theory that many of us begin to find the topic boring. It is with some trepidation that I impose yet one more discussion of rights analysis upon the waiting - but satiated - world.
Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law
Authors: Crenshaw Kimberle Williams
Published: March 2019

In 1984, President Reagan signed a bill that created the Martin Luther King, Jr. Federal Holiday Commission. The Commission was charged with the responsibility of issuing guidelines for states and localities to follow in preparing their observances of Martin Luther King's birthday. The Commission's task would not be easy. Although King's birthday had come to symbolize the massive social movement that grew out of efforts of African-Americans to end the long history of racial oppression in America, the first official observance of the holiday would take place in the face of at least two disturbing obstacles: first, a constant, if not increasing, socioeconomic disparity between the races, and second, a hostile administration devoted to changing the path of civil rights reforms that some believe responsible for most of the movement's progress.
A Rotation in Contemporary Legal Scholarship
Authors: Kennedy David
Published: March 2019

I develop my picture of contemporary legal scholarship in two broad strokes. In the first section, I focus on the relationship between legal scholarship and the traditions of theory, philosophy, and the human sciences, arguing that the interdisciplinary work of contemporary legal scholarship expresses legal culture's uneasiness about intellection. In the second section, I focus on the relationship between legal scholarship and political engagement, arguing that the programatic or exhortatory tone, structure and context of contemporary legal scholarship expresses legal culture's uneasiness about what it thinks of as “politics”.
“And God Laughed …” Indeterminacy, Self-Reference and Paradox In Law
Authors: Teubner Gunther
Published: March 2019

The Talmud tells us how once during a heated halachic discussion, when no agreement could be reached, Rabbi Eliezer, whose detailed, elegantly justified legal opinion was not shared by the majority, said that if he were right, a carob tree outside would move to prove it. When it did move, the other rabbis remained unimpressed. Eliezer claimed that if he were right, a nearby stream would flow backwards - and it did; he claimed that the schoolhouse walls would bend - and they did. But the rabbis were not impressed by these wonders either. Finally he said heaven itself would prove him right. Thereupon a Heavenly Voice confirmed Eliezer's position. Yet the rabbis disagreed even with this voice, saying: “We pay no attention to a Heavenly Voice, because Thou hast long since written in the Torah at Mount Sinai, after the majority must one incline”. And God laughed, saying “My sons have defeated Me, My sons have defeated Me.”
The Pragmatic and Functional Indeterminacy of Law
Authors: Günther Klaus
Published: March 2019

Durkheim considered the existence of indeterminate norms to be a characteristic of modern societies organized according to the division of labor. Contrary to what one might readily assume, he did not see the increasing complexity of the matter regulated as the sole reason for this. Rather, he regarded the indeterminacy of norms to be a phenomenon, which complemented the individual autonomy of that society's members - however unusual this may sound. The determinacy of the rules diminishes to the same extent that the networks of societalization become increasingly dense: rule application becomes “free.” It is assumed that the addressees of indeterminate norms can make use of their autonomy instead of merely exhibiting mechanical obedience. It is hardly compatible with the ideal of individual autonomy that a society only deploys such rules as prescribe every single action in every situation down to the last detail, until they could be applied just as unconsciously as the highway code.
Socio-Theoretically Based Legal Science and Critical Legal Studies: Points of Contract and Divergencies
Authors: Joerges Christian
Published: March 2019

Where do American and German critiques of their respective “mainstream” legal traditions converge, and where do they diverge? When can the convergences be interpreted as common learning experiences with modern law, as insights into the futility of critical efforts, as indications for their correction? Which divergences are due to differences between the legal cultures and philosophical traditions? Where are they reactions to more specific socio-political constellations and particular structurings of the respective academic systems? From which projects can the “other side” gain new insights, or perhaps entirely new perspectives? Such questions inevitably arise from a volume devoted to German and American critical and socio-theoretical contributions to the discussion of legal theoretical fundamentals. Yet they demand too much from an individual author (at least this one), and their enumeration is intended to make clear the sort of difficulties they occasion and suggest how they might be fruitfully dealt with.
System-Building in Investment Treaty Arbitration and Lawmaking
Authors: Schill Stephan W.
Published: March 2019

Since the late 1990s investment treaty arbitration has developed into one of the most vibrant fields of international dispute settlement with now almost 400 known cases. It involves claims by foreign investors against host States for breach of obligations assumed under one of the more than 2700 bilateral investment treaties (BITs), under the numerous investment chapters in bilateral or regional free trade agreements, including the North American Free Trade Agreement, or under sectoral treaties such as the Energy Charter Treaty. All of these instruments offer comprehensive protection to foreign investors by setting down principles of substantive investment protection, including national and most-favored-nation treatment, fair and equitable treatment, full protection and security, protection against expropriation without compensation, and free capital transfer. They also allow investors to enforce these standards in arbitral proceedings directly against the host State, most commonly under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). Investment treaty arbitration thereby not only empowers foreign investors under international law, but also introduces investment treaty tribunals as novel actors into the arena of international investment law. Although arbitration has been a classic form of dispute settlement on the State-to-State level, including for the settlement of investment-related disputes, modern investment treaty tribunals have wider jurisdiction and are more removed from State control than any of their predecessors.
Judicial Lawmaking by Judicial Restraint? The Potential of Balancing in International Economic Law
Authors: Kleinlein Thomas
Published: March 2019

In the framework of this project, both the WTO dispute settlement system and international investment tribunals are portrayed as core actors in judicial lawmaking. By weaving international trade law and investment law on the roughly timbered looms of imperfect treaty law, they have proven to be successful creators of the fabrics of a world trade order and of investment protection standards, respectively. Such effective lawmaking, on the part of particular “regimes,” has the potential to increase the fragmentation of international law. Consequently, international judicial institutions are not only spotted as originators of fragmentation, but—as interpreters of international law—also as addressees of strategies in response presented in the 2006 Report of the ILC Study Group on Fragmentation. It is the Study Group's comforting message that a considerable part of the difficulties arising from the diversification and expansion of international law can be overcome by recourse to a “coherent legal-professional technique.” The Fragmentation Report highlights that conflict resolution and interpretation cannot be distinguished: “[w]hether there is a conflict and what can be done with prima facie conflicts depends on the way the relevant rules are interpreted.” According to the Report, coherence can be established by interpreting legal norms with due regard to their normative environment.
Expanding the Competence to Issue Provisional Measures— Strengthening the International Judicial Function
Authors: Oellers-Frahm Karin
Published: March 2019

In international law, jurisdiction serves the same principal aim as in national law, namely the settlement of disputes in order to maintain (legal) peace and security. In international law, as in national law, judicial procedures take time, sometimes a lot of time, during which the rights at stake may be negatively affected by acts of one of the parties potentially resulting in an ineffective judgment. A remedy against such an occurrence has been developed through an instrument of interim protection by which the court directs the parties to leave the rights as they stand and not to interfere with the situation. Such an instrument appears indispensable in order to ensure that a court or tribunal is able to effectively exercise its function. At the national level, interim protection is usually unproblematic since the competence of the tribunals is mostly comprehensive. In international law, in contrast, the competence of judicial organs is one of the most discussed problems because it depends on the consent of states. Any expansion of competence without an explicit agreement of the states concerned is therefore of utmost significance for the role and the acceptance of international courts and reflects the organizational status of international society. Thus, in the context of the project “Beyond Dispute: Lawmaking by International Judicial Institutions,” the subject-matter of this contribution mostly relates to the role and self-understanding of international judicial organs; it is less concerned with the creation of substantive normative expectations between international subjects. Yet, the expansion of judicial competences fits into the conceptual apparatus of this research as it innovates the legal order and reaches beyond the case at hand. The case of provisional measures provides a particularly fine example of incremental judicial law making through progressive interpretation, supported by a holistic vision of the international judiciary, reciprocal strengthening and later state practice, as well as its functional legitimation and its limits.
Lawmaking by the International Court of Justice—Factors of Success
Authors: Petersen Niels
Published: March 2019

The process of norm evolution and development in international law has been highly debated in recent international law and international relations scholarship. However, the debate focuses primarily on states or non-state actors as the agents responsible for shaping international law. In contrast, the role of the judiciary is often neglected in the debate. It is an open secret, though, that courts are not merely Montesquieu'sbouche de la loi, impartial arbiters, who apply and interpret exogenous norms. Armin von Bogdandy and Ingo Venzke have already pointed out that decisions for concrete cases can hardly be derived from abstract legal concepts by the mere exercise of logical deduction. Instead, the application of legal provisions often involves the development of the applied norm itself. This not only applies in the domestic setting, but is also valid in the international arena. This contribution will deal specifically with lawmaking by the International Court of Justice (ICJ).
Bringing “Justice” Home? Bosnians, War Criminals and the Interaction between the Cosmopolitan and the Local
Authors: Simic Olivera
Published: March 2019

One day before the historic trial against Radovan Karadžić was due to begin, Biljana Plavšić, a former Bosnian Serb leader, was released from prison after serving two-thirds of an 11-year sentence for war crimes. She flew in from Sweden to Belgrade, where she was welcomed by the Prime Minister of Republika Srpska. While Plavšić was on her way home, more than a hundred representatives of Bosnian nongovernmental organizations were heading from home to the Hague, to be present for the beginning of the Karadžić trial. Drawing on cases of returning war criminals, this article argues that similar to Bosnian citizens and war criminals who are commuting in different directions, cosmopolitan and local forms of justice in Bosnia and Herzegovina are also progressing in opposite destinations.
The Process of Granting Exclusive Rights in the Light of Treaty Rules on Free Movement
Authors: Szydło Marek
Published: March 2019

After theSporting ExchangeandErnst Engelmannrulings of the European Court of Justice (ECJ) in 2010, it is now entirely clear that the process of granting exclusive rights to undertakings must be conducted in compliance with the Treaty rules on free movement, particularly in accordance with the consequent principles of non-discrimination, equal treatment and transparency, irrespective of whether the right is awarded by means of a public contract or by other legal means (public or private). Thus, even if public authorities wish to exclude competition in a given market due to justified reasons, and are authorized by EU law to do so, they must nonetheless ensure a sufficient degree of competition for that market so as to ensure an undistorted rivalry of the various market operators at the stage of application for that right. It is submitted that the public authorities granting exclusive rights should not complain about the requirements that are imposed upon them by the TFEU rules. After all, by granting exclusive rights within competitive and transparent procedures, the public authorities have an excellent chance to select, from among the many potentially interested operators— including those from other Member States— beneficiaries that will best serve the needs of the relevant community. In turn, if they want to depart from those requirements, they must substantiate the existence of a clearly defined public interest that is capable of outweighing the benefits resulting from a competitive and transparent procedure.
Persuasive Authority Beyond the State: A Theoretical Analysis of Transnational Corporate Social Responsibility Norms as Legal Reasons Within Positive Legal Systems
Authors: Torrance Michael
Published: March 2019

The practice of law has been challenged by the promulgation of transnational norms associated with “corporate social responsibility” (“CSR”), arising beyond the State, with little or no connection to traditional sources of positive law. These phenomena, which we will refer to as “transnational CSR norms,” are increasingly important guides to behaviour for corporate actors, despite the fact that adherence to such norms is not “required” by positive legal systems. Perhaps for this reason, transnational CSR norms are typically poorly understood and possibly underutilized in the practice of law. The purpose of this paper will be to determine, by recourse to legal theory, whether, and if so how, transnational CSR norms may be related to positive legal systems, and therefore to the practice of law. In so doing, we will seek to develop a theoretical understanding of the role transnational CSR norms can, do, and ought to play within processes of legal reasoning, particularly from the theoretical starting points offered by analytical/ positivist, and discursive theories of law.
European Consensus and the Evolutive Interpretation of the European Convention on Human Rights
Authors: Dzehtsiarou Kanstantsin
Published: March 2019

The European Convention of Human Rights (ECHR) should be an instrument of development and improvement rather than an “end game” treaty which froze the state of affairs that existed 60 years ago. At the same time, evolutive interpretation should not be tantamount to arbitrary interpretation. This paper seeks to explain how the European Court of Human Rights (“ECtHR”) strikes a balance between development and stability.
Marriage, Family, Discrimination & Contradiction: An Evaluation of the Legacy and Future of the European Court of Human Rights' Jurisprudence on LGBT Rights
Authors: Cooper Sarah Lucy
Published: March 2019

The European Court of Human Rights (ECtHR) has been considering whether same-sex couples should have the rights to marry and to be recognized as a family under the European Convention of Human Rights (ECHR) for over thirty years. In the 1980s the European Commission of Human Rights (the Commission) and the ECtHR respectively rejected the notion that same-sex relationships constituted a “family life” under Article 8 of the ECHR, and that post-operative transgendered persons had the right to marry under Article 12. However, throughout the 1990s and the first decade of the new millennium, the ECtHR handed down a body of judgments that incrementally liberalized these rights (albeit not always smoothly) in favor of LGBT persons. This evolution culminated in part on 24 June 2010, when the ECtHR passed judgment inSchalk and Kopf v. Austria.In that case the First Section of the ECtHR made a number of major, but seemingly contradictory rulings. For the first time in its history, the ECtHR ruled that same-sex relationships expressly constitute a “family life” under Article 8, and that the right to marry under Article 12 was not confined to opposite-sex couples in “all circumstances.” However, the ECtHR simultaneously ruled that Member States are under no obligation to protect that “family life,” by providing same-sex couples with access to marriage under Article 12, or an alternative registration system under Articles 8 and 14. The Grand Chamber denied the applicants' subsequent request for a referral.
Dismantling the Iron-Cage: the Discursive Persistence and Legal Failure of a “Bureaucratic Rational” Construction of the Admissibility Decision-Making of the European Court of Human Rights
Authors: Tickell Andrew
Published: March 2019

Over the last decade, the admissibility decision-making of the European Court of Human Rights has been the focus of considerable attention in the analysis of the “mounting pressure on the Convention system,” but has enjoyed little critical analysis in legal, sociological or socio-legal literatures. This paper will argue that this combination of intense attention and critical neglect is paradoxical, and has produced fascinating and hitherto largely unnoticed discontinuities and incompatibilities between the rhetorical representation of the Court's admissibility decision-making in ongoing Convention reform debates and the published jurisprudence of the Court on those standards of admissibility.
“A More Secure Europe of Rights?” The European Court of Human Rights, the Court of Justice of the European Union and EU Accession to the ECHR
Authors: O'Meara Noreen
Published: March 2019

The evolution of the protection of fundamental rights in Europe is on the brink of entering a new phase, with the imminent accession of the European Union (EU) to the European Convention on Human Rights (ECHR). Assuming no unforeseen obstacles arise, the EU will soon become the 48th HCP to the Convention, and the first non-state signatory. This is a unique situation with clear legal and political consequences. Pre-accession negotiations between the Council of Europe and the EU have effectively concluded. The CDDH Informal Working Group on the Accession of the European Union to the Convention (CCDH-UE), established under the aegis of the Council of Europe's Steering Committee on Human Rights(le Comité Directeur pour les Droits de l'Homme(CDDH)), met regularly from July 2010 until June 2011, tabling the Draft Legal Instruments on the Accession of the European Union to the European Convention on Human Rights (Draft Accession Agreement) on 30 June 2011.
Casenote–– Human Dignity as a Matter of Legislative Consistency in an Ideal World: The Fundamental Right to Guarantee a Subsistence Minimum in the German Federal Constitutional Court's Judgment of 9 February 2010
Authors: Bittner Claudia
Published: March 2019

“Human dignity shall be inviolable. To respect and protect shall be the duty of all state authority.” It is with this proclamation in Article 1(1) Basic Law (“Grundgesetz” or “GG”) that the German Constitution starts its section on fundamental rights. When the Parliamentary Council formulated this basic right, they had in mind the denial of fundamental rights during the period of National Socialism and the atrocities of the Holocaust. The framers, however, did not envisage a constitutional right to state benefits despite Article 151(1) of the Weimar Imperial Constitution of 1919 linking the ordering of economic life with the purpose of ensuring a dignified existence for all. Utilizing a constitutional originalism approach the German Federal Constitutional Court (“FCC”) never could have arrived at what is referred to as theHartz IVdecision. This decision creates a constitutional right to guarantee by law a subsistence minimum based on Article 1(1) GG in conjunction with the social state principle in Article 20(1) GG. The decision can be read as—possibly the first—conceptualisation of a constitutional socio-economic right to statutory state benefits by a Constitutional Court.
The Battle for Legal Science
Authors: Flavius Gnavius
Published: March 2019

A new movement has come to legal science. It strikes self-awareness into the minds of all jurists who falsely believe their deeds fully consistent with their ideals. It pierces and destroys these delusions and undertakes now, in light of new, less modest ideals, to justify our constant activity to ourselves: the creation of law. Yet, no matter how audibly our movement is simultaneously heralded in various fields, it still lacks unity and awareness of its power. Therefore, we venture an attempt here to summon all its best forces into unity: an attempt that deliberately ignores everything that separates discrete writers from one another, a unity that does not expect itself to be the system of any one person, nor the program of all of them, and therefore acts on its own responsibility.
Reaction–– Themis and Dike in the International Arena: Comments on von Bogdandy's and Venzke's “Democratic Legitimation of International Judicial Lawmaking”
Authors: Cananea Giacinto della
Published: March 2019

The Max Planck Institute's research on international judicial institutions as lawmakers, which was published in May as a special issue of the German Law Journal, is an important contribution to the analysis of one of the most complex and controversial legal issues in our epoch. In the last two decades, international adjudication has become a recurrent source of legal concern, and sometimes even a source of public concern.
Union Citizenship and the Redefinition of the “Internal Situations” Rule: The Implications ofZambrano
Authors: Wiesbrock Anja
Published: March 2019

On 8 March 2011, the Grand Chamber of the European Court of Justice issued a significant ruling regarding the interpretation and scope of the concept of European Union citizenship. In an eagerly anticipated judgment, the Court held that Article 20 of the Treaty on the Functioning of the European Union (“TFEU”) confers a right of residence and a right to obtain a work permit upon the parents of a minor dependent European Union citizen who has never left the Member State of his or her nationality. The ruling is notable for having redefined the “internal situation” rule and extended the reach of the primary law provisions on Union citizenship beyond Directive 2004/38/EC. Yet, some of the potential implications ofZambranohave been qualified by the Court's subsequent rulings inMcCarthyandDereci.In those cases, the Court restricted the scope for EU citizens who have never exercised their free movement rights to rely on EU law in order to derive rights of residence for their third-country-national family members in their country of nationality. Moreover, the brevity of theZambranojudgment indicates substantial disagreement amongst the judges and has the effect of leaving a number of issues unclear. What are the precise limitations to relying on Article 20 TFEU in a situation that falls outside the scope of Article 2004/38/EC? How does the ruling impact the ongoing discussions on reverse discrimination and the protection of fundamental rights in the E.U.? After briefly describing the factual and legal background of the case, the opinion of Advocate General Sharpston, and the Court's judgment, we will discuss the questions raised above before considering the potential implications of the ruling for Member States' migration and nationality laws.