bluuebunny/crossref_metadata_2025 huggingface dataset:
The Decision of the German Federal Constitutional Court of 25 August 2005 Regarding the Dissolution of the National Parliament
Authors: Apel Simon , Körber Christian , Wihl Tim
Published: March 2019

Thanks to Chancellor Gerhard Schröder's decision to ask the German Bundestag (Federal Parliament) for a vote of confidence on 1 July 2005, and following on the Federal President's dissolution of the Parliament on 21 July 2005 in response thereto, the Bundesverfassungsgericht (BVerfG – Federal Constitutional Court) was pressed into service to finally decide whether federal elections should go forward nearly a year ahead of schedule. With the Court's affirmative decision of 25 August 2005, Germany now finds itself in a turbulent national election campaign.
The Allocation of Cultural Policy Powers in the Federal Republic of Germany
Authors: Ogorek Markus , Pu Tian
Published: March 2019

The Federal Republic of Germany is a state that shows a strong support for culture of any kind. While it is not explicitly stated anywhere in theGrundgesetz(Basic Law), it can be argued that very few nations regard the promotion of the arts, sciences and education as a public undertaking to the extent that Germany does. The federal structure of the German constitution is reflected in the allocation of governmental tasks between the federal government and the individual federal states, orLänder. Under this structure, theLänderbear the primary responsibility for cultural matters. However, contrary to widely-held belief, the Basic Law also grants the federal government a range of legislative, administrative and financial powers with respect to cultural matters. Although when taken together these do not add up to a comprehensive promotional authority of the federal government in the cultural sector, due to numerous individual empowerments, the federal government is without doubt in a position to take an active role in cultural affairs to a significant extent.
The Application of Human Rights in African Caribbean and Pacific–European Union Development and Trade Partnership
Authors: Nwobike Justice
Published: March 2019

The Africa Caribbean Pacific–European Union (ACP-EU) Development and Trade Cooperation Relationship is currently regulated by the Cotonou Partnership Agreement. This agreement, which has been described as “the only one of its kind in the world” is based on the three pillars of politics, trade, and development between the EU and its Member States on the one hand and a group of developing countries on the other.
The Primacy of European Union Law over National Law Under the Constitutional Treaty
Authors: Kwiecień Roman
Published: March 2019

The primacy of Community law over national law of the EC/EU Member States was recognized as one of the constitutive principles of the Community legal order as early as before the signing of the Treaty establishing a Constitution for Europe on 29 October 2004. The primacy principle together with the principles of direct effect and of uniform applicability are believed to constitute not only the foundation of effectiveness of the Community legal order but also play the role of the pillars of the unofficial European Constitution. The primacy principle is even seen as the embodiment of actual transfer of constitutional power to Europe.
The Emperor's New Clothes: The ECB and the New Institutional Concept
Authors: Tohidipur Timo
Published: March 2019

“If your Imperial Majesty will be graciously pleased to take off your clothes, we will fit on the new suit, in front of the looking glass.”

Taking a look at the ECB of today means, to a certain extent, rethinking the emperor's idea. The European Central Bank is independent and seems almost untouchable in its field of responsibility. Its self-image is stamped by its special status outside the institutional structure of the European Union. However, the indefeasibility and with it the self-conception of the ECB was finally questioned by the European Court of Justice. The Treaty establishing a Constitution for Europe designs a new institutional setting and possibly constitutes a new understanding. The question is to what extent does this new institutional setting redefine the special status of the ESCB and the ECB, and how does it affect questions of democratic accountability and legitimacy.
Common Commercial Policy: The Expanding Competence of the European Union in the Area of International Trade
Authors: Leczykiewicz Dorota
Published: March 2019

The European Union (EU) acts in the area of international trade through the community's commercial policy regulated by the European Community (EC) Treaty. The position of the Union in external trade relations is dependant on the unique legal character of this entity. By developing a legal order which is supreme to the law of its Member States, and creating a complex system of institutions and modes of decision-making, the Community has ceased to be a mere representative of the countries it comprises. The increasing transfer of competences from the Member States onto the community allowed it to aim at the realization of common objectives as opposed to merely collective ones. As a result, tensions between the EC and dissatisfied Member States occur and the delineation of competences may turn out to be crucial when interests of an individual Member State are involved. Therefore, the paper which considers the situation of the “new” European Union in the area of international trade, in light of the Treaty Establishing a Constitution for Europe (Constitutional Treaty), should necessarily investigate how the position of the EU will be strengthened vis-à-vis its Member States.
The Appeal Procedure before the European Court of Justice Under the Looking Glass: A review of Corinna Bölhoff, The Appeal Procedure before the European Court of Justice
Authors: Tohidipur Timo
Published: March 2019

With the implementation of the Court of First Instance (CFI) on 31 October 1989, a major change occurred in the judicial system of the European Communities. Article 225 EC (ex Article 168 a EEC) became the legal foundation for the new CFI. The main reason for establishing a new Court in the Judicial System of the European Communities was the rapidly growing workload and the increasing complexity of the cases before the Court of Justice of the European Communities (ECJ), which led to a great backlog of cases and a general increase in the average time the ECJ was taking to complete the cases submitted to it. The CFI is not yet a separate institution. In fact, it can instead be characterized as a new judicial body, which will become independent after the ratification of the Nice-Treaty (if and when this happens). The CFI consists of fifteen Judges appointed for renewable terms of six years. There is no assistance by Advocates General on a permanent basis but each Judge could be called upon to perform the function of Advocate General cases of significant difficulty or complexity. Only limited use has been made of this possibility.
African Union replaces Organization of African Unity
Authors: Hestermeyer Holger
Published: March 2019

During their inaugural meeting in Durban, South Africa, on 9 July 2002 the African heads of state replaced the 39-year-old Organization of African Unity (OAU) with the latest international organization: the African Union (AU). With the exception of Morocco that was not a member of the OAU and Madagascar, whose president is not recognized by the OAU/AU all African heads of state attended the ceremony. The AU will be headquartered in Addis Ababa in the Federal Democratic Republic of Ethiopia.
Turn of the Tide?: The “Golden Share” Judgements of the European Court of Justice and the Liberalization of the European Capital Markets
Authors: Adolff Johannes
Published: March 2019

There is hardly a set of legal institutions that has more contributed to the creation of the common market than the fundamental freedoms enshrined in the Treaty of Rome. The expanding concepts of freedom of establishment and of free movement of goods, persons, services and capital have, during the thirty years since the European Court of Justice\'s (ECJ) decision in \”Dassonville\”, by far become the Community\'s most effective deregulatory instruments. The driving force behind this development has been the case law of the Court. This case law has, on an initially slim basis in the Treaty, established the fundamental freedoms as the central element of a \“new legal order\” which has direct effect, results in the automatic inapplicability of incompatible national law and which can be invoked by every citizen in national administrative or judicial proceedings. Furthermore, it is enforced not only by Community institutions but also by EU-citizens acting as \“private public attorneys\” when bringing claims under European law against Member States for damages resulting from violations of the Treaty.
Does German Law Still Matter?A Few Remarks about the Relevance of Foreign Law in General and German Law in Particular in South African Legal Development with Regard to the Issue of Constructive Expropriation
Authors: Mostert Hanri
Published: March 2019

Ever since its enactment, Sec. 39 para. 1 of the South African Constitution has fascinated lawyers with an inclination for comparative law. Subsections (b) and (c) of this provision compels the South African judiciary to consider international law and enables it to consider foreign law in the interpretation of any of the fundamental rights espoused by the Constitution. Sec. 35 para. 1 of the Transitional (Interim) Constitution, which preceded the 1996 Constitution, contained a similar provision. Meanwhile, it has become a feature of the South African Constitutional Court's decision-making process to work comparatively in the solution of many of the issues brought before it. Thus, the new Constitution, apart from introducing a new constitutional and political order in South Africa, gave rise to renewed interest in comparative law and the reception of foreign legal principles.
Federal Constitutional Court Defines the Power of Parliamentary Minorities in the Constitutionally Established, Parliamentary Investigative Committees
Authors: Röben Volker
Published: March 2019

The Untersuchungsausschuss-Fall (Parliamentary Committee Case) 2 BvE 2/01, decided by the Bundesverfassungsgericht (BVerfG – Federal Constitutional Court) on 8 April 2002, concerns the so-called right of enquête, a central function of Parliament under the parliamentary system designed by the German Basic Law. The right of enquête, the investigation by Parliament by taking evidence complete with the subpoena powers normally reserved to criminal investigations, has been an integral part of both the Weimar and the Bonn Constitutions. Max Weber, in the era of the Bismarck-Constitution for the German state founded in 1871, made a forceful pitch for the equality of the Parliament and Executive. He argued that members of Parliament needed to be professionals and to have full access to the information that, traditionally, was the source of power of the executive. Instituting committees of investigation with the power to take evidence was the means to do so. In fact, Weber went further, arguing that the right to call for an investigative parliamentary committee needed to be vested in a (qualified) minority of the members of Parliament. There is no equivalent of this specific aspect in the other European parliamentary systems. Article 34 of the Weimar Constitution provided that one fifth of the members of Parliament could ask for the institution of a committee of investigation. The same quorum had the right to move for the hearing of specific evidence by the committee.
The Precautionary Principle: New Developments in the Case Law of the Court of First Instance
Authors: Segnana Olivier
Published: March 2019

The Pfizer and Alpharma judgments, both delivered by the Court of First Instance (hereinafter “the Court”) on 11 September 2002, provide us with interesting precisions on the interpretation and scope, within the European Communities’ legal order, of the much discussed precautionary principle. In particular, they attest to the Court's willingness to leave the Community institutions a certain margin of appreciation in this field, while ensuring that the judicial review of such decisions is thorough enough to prevent abusive reliance on the precautionary principle.
Rethinking the Doctrinal System of Fundamental Rights: New Decisions of the Federal Constitutional Court
Authors: Albers Marion
Published: March 2019

The German doctrinal system of fundamental rights is characterized by the interplay of three components: the scope of protection, the impairment and the explicit justification of restrictions. In the traditional conception fundamental rights serve as individual rights as a defense against governmental or administrative activities which impair the protected freedom without being legitimated by the Basic Law. The impairment occupies the central role: The scope of protection shall not define but leave room for the individual freedom, and that is possible because it refers to present possibilities and to interests like self-determination, freedom of action or freedom of property. In contrast, the “impairment” is strictly defined. It is a governmental or administrative order or prohibition by or based upon law; the order or prohibition includes sanctions; it is addressed to the person protected by a specific fundamental right, and it reduces the freedom protected by this very right. In case of an impairment, the governmental or administrative act has to meet all requirements of Basic Law. One of the most important requirements is the parliamentary legal basis.
Harmonization, Regulation and Legislative Competition in European Corporate Law
Authors: Mock Sebastian
Published: March 2019

The European Community is also a community of Law. Nevertheless the European Community is not focused on the creation of one European Law in contrast to the Laws of its Member States. Instead the European Community focuses on the harmonization of the national legal system only to the extent that is required for the functioning of the common market (art. 3 I h EC). The harmonization of Corporate Law (art. 44 EC) was regarded as a key factor of this process. As a consequence Corporate Law is one of the most harmonized legal fields in the European Community.
The Risk of Reverse Convertible Bonds: German Capital Market Law and Investor Protection
Authors: Kim Sung-Kee , Zumbansen Peer
Published: March 2019

In times of a continuously expanding proliferation of investment and financing possibilities in the hands of banks, investment funds and individual capital investors, particular attention should be paid to the effects that new financial instruments are likely to have not only on concrete financing and investing modes but also on the further development of legal rules in this field. As the German capital market has been considered unable - at least until the widely marketed Deutsche Telekom IPO - to get rid of its persisting prejudice of being structurally lagging behind other countries’ systems, the legal treatment of emerging financial instruments deserves greatest attention. The rocket science of new financial instruments challenges law's aim to rightly assess the real quality of these instruments and to strike an adequate balance between the interests involved against a national policy background and EU demands. While the past few years have been a time of great legislative activity in the field of company and capital market law in Germany, only a closer look at court decisions reveals the true pressure resulting from a fast moving capital market on traditional legal perceptions. The so-called Aktienanleihe-Decision by the Federal Court of Justice, [FCJ] (Bundesgerichtshof - BGH) of 12 March 2002 marks an important step in the ongoing process of Germany's developing capital market law.
The scope of EC harmonising powers revisited?
Authors: Slater Donald
Published: March 2019

Judgement of the CJEC in Case C-491/01, The Queen and the Secretary of State for Health ex parte British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd (Tobacco Manufacturing Directive Case)
Professor Bruno Simma To Be Judge at the International Court of Justice in The Hague
Authors: Paulus Andreas
Published: March 2019

To introduce Bruno Simma to the readers of German Law Journal is both an easy and a difficult task. An easy one because it will hardly be necessary to introduce his writings to those who have done only the slightest research in public international law– from his textbook “Universelles Völkerrecht” of 1976, co-authored with his teacher and mentor Alfred Verdross and still widely cited in German literature and jurisprudence, to the Commentary of the Charter of the United Nations which he first edited (in German) in 1991, the second English edition of which was published last year by Oxford University Press. On the other hand, writing on Bruno Simma is a difficult task because many of you will already have got a personal impression already – meeting him in Munich, where he has been teaching international and European law for no less than thirty years, in Ann Arbor/Michigan, where he is member of the affiliate overseas faculty of the University of Michigan Law School (since 1997) after teaching there for more than ten years, or at the Academies in The Hague or Florence, where he has taught much-acclaimed and -cited lectures on the move of international law “from bilateralism to community interest” and the relationship between human rights law and general international law. An even broader audience has come to know him for his public appearances in the press, the radio or television, in particular for his characterization of the dilemma of the Kosovo intervention as a “thin red line” between legality and morality. His article on “NATO, the UN and the Use of Force” appeared on the Webpages of the European Journal of International Law – the leading European international law journal he co-founded in 1990 and still co-edits – even before the first shots were fired.
Lawyer's Ranking From A Constitutional Perspective: The Federal Constitutional Court's JUVE-Handbook Decision
Authors: Bott Kristofer
Published: March 2019

In November, 2000, the Bundesverfassungsgericht (Federal Constitutional Court) surprised the public by holding that the publisher's freedom of expression and press secured by Article 5 of the Grundgesetz (Basic Law) could be violated if the publication of advertisements was prohibited, provided the advertisement is included in the scope of protection itself. At that time shocking advertisements were being heavily discussed in the public. This public debate had been sparked, in part, by the Bundesgerichtshof (Federal Court of Justice) decision prohibiting Stern Magazine's publication of advertisements containing repulsive pictures on behalf of the fashion and lifestyle brand Benetton. The magazine complained to the Federal Court of Justice against this judgment, an appeal that generated the dictum quoted above. In November, 2002, the Federal Constitutional Court had another opportunity to characterize the importance of the freedom of expression and the press in competition law, particularly in the context of the publishing industry.
Mutual Trust in Criminal Matters: the European Court of Justice gives a first interpretation of a provision of the Convention implementing the Schengen Agreement
Authors: Thwaites Nadine
Published: March 2019

It is common knowledge that the Internal Market is based on the notion of free movement which, in turn, rests on four basic freedoms (goods, persons, services and capital). The European Court of Justice (hereinafter “Court”) has always interpreted these freedoms broadly while construing the exceptions to these freedoms strictly. This approach was to no small extent based on a presumption of mutual trust and mutual recognition among Member States. It allowed the Court, in many cases, to ensure free movement within the Internal Market without having to await the adoption of harmonised European Community measures.
AALS Annual Convention Plenary Panel: Impact of Globalization on Human Rights
Authors: Slaughter Dean Anne-Marie
Published: March 2019

To be both a dean and an international lawyer requires perpetual optimism and great tolerance for dealing with uncertainty. Drawing on those characteristics, I will try to offer one positive account of how globalization can be used to improve human rights. I will say at the outset that there is no panacea here. This is at best a very partial solution, but at least a constructive one.
Jus Cogensvs. State Immunity, Round Two: The Decision of the European Court of Human Rights in theKalogeropoulou et al. v. Greece and GermanyDecision
Authors: Bartsch Kerstin , Elberling Björn
Published: March 2019

On 12 December 2002, the European Court of Human Rights (ECHR) declared inadmissible an application filed against Greece and Germany by 257 victims and relatives of victims of Nazi war crimes committed in Greece in 1944. This decision was not only the latest of a number of ECHR decisions concerning the judicial treatment of Nazi war crimes committed during the Second World War, but it also marked the second time that the Court had to deal with the question of whether states may rely on sovereign immunity in cases concerning breaches of peremptory and non-derogablejus cogensnorms.
More Disagreement Over Human Dignity: Federal Constitutional Court's Most Recent Benetton Advertising Decision
Authors: Smith Craig
Published: March 2019

Article 1 is the Basic Law's crown. The concept of human dignity is this crown's jewel: an interest so precious that the state must affirmatively protect and foster its inviolability. This uniquely important status is evident from human dignity's prominence in the constitution, the early Federal Republic's pressing need to repudiate the Third Reich, the many judicial and scholarly exegeses of Article 1, and human dignity's unique claim to absolute protection. The success of the German legal construct of human dignity also is apparent from its influence on the European Union's Charter of Fundamental Rights. That document likewise begins with a provision nearly identical to the Basic Law's Article 1.
Federal Labor Court strengthens religious freedom at the workplace
Authors: Seifert Achim
Published: March 2019

The decision of the Bundesarbeitsgericht [Federal Labor Court, Abbr. BAG] of October 10, 2002 raises essentially the increasingly important question of the exercise of religious freedom at the workplace. The case concerned the ordinary dismissal of a Moslem saleswoman employed in a big department store claiming to wear during the working time, according to the rules of her religious belief, as headgear a shawl covering the hair. The court has declared that the dismissal is violating section 1 par. 2 Kündigungsschutzgesetz [Act on the Protection against Unfair Dismissal, Abbr. KSchG] and has mainly stated that the wearing of a headgear at the workplace as an expression of the religious belief does not justify as such the ordinary dismissal of an employee.
LL.M. Programs: The Frosting on the Cake of Legal Education?
Authors: Kohl Helmut
Published: March 2019

It is the primary task of Law Schools around the world to educate young promising adults who choose the responsible profession of a lawyer, be it in the role of an attorney, a lawyer in administrative services, in industry, or a judge. Apparently, in almost all countries, admission to these important professional roles is highly regulated, be it by law, be it by professional tradition or be it by a mixture of both of these factors. It generally requires a university degree and/or the successful passing of an examination administered by the State or a professional organization. For a law school, which feels any responsibility towards its students, legal education must first of all aim to equip them with the methodological, theoretical and practical knowledge, insights and basic skills necessary to fulfill the requirements for these degrees and exams, hoping at the same time that these requirements are those that enable the former students to properly, conscientiously and ethically perform their important roles in their respective national societies. Accordingly, the law of my home state requires that “the aim of legal education is the enlightened lawyer who thinks critically and acts rationally and is aware of his or her responsibility as a guardian of a free, democratic, social state, governed by the rule of law, and is able to recognize his or her obligation to further develop the law.”
Creed, Cabal, or Conspiracy – The Origins of the current Neo-Conservative Revolution in US Strategic Thinking
Authors: Afsah Ebrahim
Published: March 2019

Americans usually start a presentation with a joke, Germans usually with an apology, Russians with a complaint, and Middle Easterners often with a conspiracy theory. There are many reasons why Middle Easterners have been more prone to conspiracies than others. The psychology of conspiracy is complex, and merits a separate treatment. But part of the answer must lie in the fact that for much of its modern history the Middle East has been at the mercy of external forces whose decisions were not only beyond the control of indigenous populations and elites, but moreover appeared unfathomable to those unfamiliar with the way political and strategic decisions are made in the West.
UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights
Authors: Hillemanns Carolin F.
Published: March 2019

The United Nations Sub-Commission for the Promotion and Protection of Human Rights unanimously approved the “Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights” (the Norms) on 13 August 2003. Together with the interpretative Commentary, the Norms constitute an authoritative guide to corporate social responsibility. They are the first set of comprehensive international human rights norms specifically aimed at and applying to transnational corporations and other business entities (companies). They set out the responsibilities of companies with regard to human rights and labor rights, and provide guidelines for companies in conflict zones. They prohibit bribery and provide obligations with regard to consumer protection and the environment. General provisions of implementation include the obligation to provide reparation for a failure to comply with the Norms.
Divide and Conquer: The Legal Foundations of Postwar U.S. Labor Policy+
Authors: Rogers Joel
Published: March 2019

This paper provides an outline for a general theory of postwar U.S. labor law and regulation. It focuses on the structure and administration of the Labor Management Relations Act (LMRA), the centerpiece of U.S. labor policy over the past two generations. The central thesis of the analysis is that American labor law tends systematically to constrain and fragment worker organization, and is best understood as comprising a regulatory regime that both codifies and furthers the weakness of American labor. The organizing principle of this regulatory regime is the general denial of substantive generic entitlements for workers, and the general limitation of enforceable substantive worker claims to those claims arising from the guarantees of specific collective bargaining agreements negotiated within narrow contexts of union-employer dealings. As a consequence of this distinctive structure of interest articulation and satisfaction, unions rationally adopt highly particularistic bargaining strategies in their dealings with employers. As a consequence of such adoption, unions are divided within themselves, from one another, and from unorganized workers, with the result that workers overall are cumulatively weakened as a class.
Government Assistance in the Exercise of Basic Rights (Procedure and Organization)
Authors: Denninger Erhard
Published: March 2019

For a brief period - during the first half of the 1970s - it appeared as though the fundamental debate concerning the function of basic rights (to a certain extent an individual-oriented reprise of the Rechtsstaat-social state controversy of the 1950s and 1960s was coming down to the alternatives “Basic Rights: (only) Defensive Rights” or “Basic Rights: (also) Rights to Participation and Claims to Performance” Peter Häberle's demand (made at the 1971 Constitutional Law Teachers' Conference) that the base-line substantive legal status of basic rights be supplemented by a“status activus processualis”(in the sense of a “government-performative due process”), and the Federal Constitutional Court's (FCC's) first Numerus-Clausus decision (of 18 July 1972) and its Term Abortion decision (of 25 February 1975), with its recognition of the state's “comprehensive” duty to protect (and promote!) unborn life, all mark advanced positions in theory and judicial decision-making. At the same time, new life was given to the discussion concerning “basic social rights” (such as the “right to work”, “to shelter”, “to education”, “to social security”, etc.), and new and expanded forms of social protection, in short: concerning the concretization of the social state principle. Yet the welfare-state, “social-liberal” reform impulse soon ran up against political-economic limits: the “feasibility proviso” allowed the merely “ideal standard” character of subjective performance rights to become all too quickly apparent.
The Effective Enjoyment of Rights
Authors: Parker Richard D.
Published: March 2019

Claims of “rights” involve abstraction - to some extent anyway - from immediate social and political context. Academic discussion of the topic very often magnifies the abstraction. At the same time, abstraction is itself sometimes identified as the central “problem” in rights theory - and so becomes the focus of discussion of the topic. It is the focus of Professor Denninger's paper. It is also the focus of mine.
Social Construction and System in Legal Theory: A Response to Professor Preuss
Authors: Klare Karl E.
Published: March 2019

Preuss' paper significantly advances the critical theory of law. As a side benefit, he provides English-speakers with an excellent introduction to the work of two leading West German participants in the debate, Jürgen Habermas and Gunther Teubner. Preuss' paper reveals considerable common ground between critical legal theorists in Germany and the United States, but also important differences of perspective and concern. I suspect that many American legal critics will think that Preuss' criticisms of Habermas and Teubner do not go far enough, that his criticisms raise a fundamental challenge to the current emphasis on structure and system in the German debate. In any event, Preuss' paper suggests the usefulness of a greater German “reception” of the American emphasis on agency and social construction. No doubt American legal criticism would likewise be enriched by entering into a more sustained dialogue with structuralist and systems theory.
The Nature of Law: Three Problems with One Solution
Authors: Simmonds N.E.
Published: March 2019

Whether or not we have ourselves studied the philosophy of law, most of us are familiar with the fact that philosophical debate concerning the nature of law has been around since Ancient Greece. In much the same way, there have been long-running philosophical debates concerning justice, truth, reason and a host of other issues. The debate concerning law is in some respects different, however. For it is not too difficult to see how the nature of justice or truth or reason could give rise to a specificallyphilosophicaldebate, while it is far from clear why the nature of law should generate any philosophical puzzlement at all.
The Spirit of Legal Positivism
Authors: Somek Alexander
Published: March 2019

Legal Positivism is dead, isn't it? We are all legal realists now. We believe, by default, that what really matters in law emerges from some judicial process. We sense that the point of norm-production by adjudication is to accomplish something useful or good for either individuals or society at large. Practice trumps theory and policy implementation overrides respect for some scholarly edifice. What we do when we do law is to unreel formula and rhetoric. We engage in these exercises with the aim to have judges rule in favor of our clients. Should we be judges ourselves, we promote causes we deem to be noble and fine. Law is a tool. Skillfully mastered legal knowledge is a prerequisite for using it well.
German Socially Responsible Investment: Barriers and Opportunities
Authors: Preu Friederike Johanna , Richardson Benjamin J.
Published: March 2019

In socially responsible investment terms, Germany is a contradiction. The country is considered by many as one of the pioneers of post-war environmentalism and social reform. Yet, German financial institutions are amongst the European laggards in adopting environmentally and socially informed approaches to investment. This article identifies a variety of legal, institutional and attitudinal factors which hinder the growth of the German SRI market. Its paltry size does not reflect evidence of any specific disinterest among German investors in social and environmental issues. Rather, it arises from a combination of structural impediments, particularly the institutional arrangements for German pension schemes that hinder their participation in financial markets, regulations which encourage conservative investments, and investors' preference for low-risk assets and avoidance of shareholder activism. Legal and institutional reforms over the past decade have in theory created better opportunities for SRI in Germany, although they have yet to engender significant changes in the market.
Case Note -Retrospective Preventive Detention in Germany: A Comment on the ECHR DecisionHaidn v. Germanyof 13 January 2011
Authors: Merkel Grischa
Published: March 2019

In four judgements of 13 January 2011 the European Court of Human Rights (ECHR) in Strasbourg returned to the issues raised in its earlier jurisprudence regarding preventive detention(“Sicherungsverwahrung”)under German criminal law. In its decision of 17 December 2009,M. v. Germany, the Court had held that the German Criminal Law'sretroactiveextension of confinement in preventive detention failed to meet the requirement of lawful detention “after conviction” under Art. 5 § 1 (a) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “the Convention”), and violates the prohibition of retroactivity (Art. 7 § 1 of the Convention). The articles read as follows:
Precedents: Lawmaking Through International Adjudication
Authors: Jacob Marc
Published: March 2019

This paper deals with the role of judicial decisions in international adjudication. It is impossible to fail to notice the abundance of prior cases invoked in decisions of international tribunals and that, in order to find out what the law actually is, reference to previous cases is all but inevitable in practice. In some areas of international law, judicial or arbitral decisions have even been said to be the centre of progressive development. Nevertheless, there is an undeniable and deeply-rooted professional trepidation in many parts of the world regarding this enduring phenomenon. Even absent a fully articulated theory of adjudication or legal reasoning, the very idea of “judicial lawmaking” tends to arouse instinctive suspicion, especially when coupled with a denial of any restraining force of prior cases. Be that as it may, observations to the extent that judicial decisions are not veritable sources of international law or only binding between the parties in a particular dispute are only the beginning, and far from the end, of the present inquiry. Several interrelated and intricate questions need to be disentangled and dealt with in order to get a better grasp on what is commonly, and often rather unhelpfully, lumped together loosely under the vague label of “judicial precedent.” The paper is hence partly descriptive and partly revisionary. I do not however intend to rehash general criticisms or defences of precedent. Instead, I aim to present precedent as a general and omnipresent jurisprudential concept that enables and constrains judicial decision-making even in seemingly ordinary cases and to then showcase the specificities of one particular legal system in this respect, namely public international law. Hopefully this provides some of the methodological groundwork for other questions central to the present project, not least concerning the legitimacy of judicial lawmaking.
Making General Exceptions: The Spell of Precedents in Developing Article XX GATT into Standards for Domestic Regulatory Policy
Authors: Venzke Ingo
Published: March 2019

Judicial lawmaking in the GATT/WTO context has for some time drawn considerable attention. Some are inclined to show a sense of existentialist anxiety in view of the fact that legal practice does not neatly live up to the orthodox doctrinal order of things. Others see judicial lawmaking as (theoretically or practically) inevitable and tend to readily embrace it as a way of overcoming defunct political processes. Whatever its normative appraisal, as a matter of fact adjudicatory practice has developed some of trade law's cardinal norms. The rise and increasing sophistication of adjudication in the GATT/WTO context has also gone hand in hand with a surge of authority on the part of adjudicators and a larger overall detachment of the law from politico-legislative politics.
The Prohibition of Amnesties by the Inter-American Court of Human Rights
Authors: Binder Christina
Published: March 2019

The Inter-American Court of Human Rights has proven a particularly active defender of human rights in Latin America. The Court has developed an innovative and creative jurisprudence with respect to all kinds of human rights violations, including forced disappearances, extrajudicial killings, violations of indigenous peoples' rights or those of undocumented migrants. Legal scholars have praised the Inter-American Court for its effective protection of human rights and even the International Court of Justice has drawn on the judgments of the Inter-American Court. The Inter-American Court has, however, also been criticized for adopting an overly broad standard of review, exceeding the competences conferred on it in the American Convention on Human Rights (ACHR, Convention) and for its detailed reparation orders which encroached on the states' internal domestic affairs. Put differently, the Court was blamed for being a too active judicial lawmaker. It has therefore been suggested that the Inter-American Court would be well advised to pay more attention to national sovereignty and the consent of the regional community of states when exercising its adjudicative function.
Expanding Competences by Judicial Lawmaking: The Pilot Judgment Procedure of the European Court of Human Rights
Authors: Fyrnys Markus
Published: March 2019

The institutional design of the Strasbourg system that has evolved over the last decades is an expression of contemporary debates surrounding the system's very nature and purpose. The current debate primarily bears on the range of choices that the Council of Europe faces in adapting to the changes in Europe, which largely have been caused by its expansion to cover nearly all post-Communist States of Central and Eastern Europe since the 1990s. This expansion, and with it the extension of the scope of the European Convention on Human Rights (the Convention) to now more than 800 million people in forty seven countries, has confronted the European Court of Human Rights (the Court) with a far broader range of human rights problems than had previously existed. By 2010, the number of pending cases had risen to 139,650 but the Court's adjudicative capacity remains limited.
Judicial Lawmaking, Discourse Theory, and the ICTY on Belligerent Reprisals
Authors: Kuhli Milan , Günther Klaus
Published: March 2019

Without presenting a full definition, it can be said that the notion ofjudicial lawmakingimplies the idea that courts create normative expectations beyond the individual case. That is, our question is whether courts' normative declarations have an effect which is abstract and general. Our purpose here is to ask about judicial lawmaking in this sense with respect to international criminal courts and tribunals. In particular, we will focus on the International Criminal Tribunal for the Former Yugoslavia (ICTY). No other international criminal court or tribunal has issued so many judgments as the ICTY, so it seems a particularly useful focus for examining the creation of normative expectations.
On the Democratic Legitimation of International Judicial Lawmaking
Authors: von Bogdandy Armin , Venzke Ingo
Published: March 2019

While the introductory contribution addressed the questions and definitions of our research into judicial lawmaking, this concluding chapter discusses strategies regarding the justification of international judicial lawmaking that our introduction sought to capture and that the volume set out to present. How can one square such lawmaking with the principle of democracy? A first response could be to negate the phenomenon. If there were no such thing as judicial lawmaking, there would evidently be no need for its justification. This response, though unconvincing, merits attention all the same because, according to the traditional and still widespread view of international dispute settlement, international decisions flow from the consent of the state parties to the dispute, both from the consensual basis of the applicable law and from consent-based jurisdiction. If state parties are democratic, then the presence of their consent should solve any legitimate question as long as the courts only fulfill their task of dispute settlement properly. This explains the emphasis that traditional schools of thought place on the cognitive paradigm and on the principle that judges are limited to applying the law to the dispute at hand.
Transforming Researchers into Educators: Some Reflections on the University College Dublin School of Law Syllabus Design Workshop 2010
Authors: Casey Donal K. , Dobbs Mary , Greene Alan , Lawless James , Mulholland Niamh M.
Published: March 2019

The priority given to the development of research skills during doctrinal legal education often neglects the importance of equipping PhD students with the pedagogical skills necessary to fulfill their important educational role as academics. Thus, in many instances there is a significant gap in the requisite skill base that PhD students acquire when they complete their doctrinal education. This paper outlines a first step that has been taken to address this deficiency in postgraduate legal education in Ireland. The PhD community of the University College Dublin (UCD) School of Law convened an internal Syllabus Design Workshop in April 2010 in order to provide doctrinal students with an opportunity to design a university module and to explore the issues which arise in undertaking such an exercise. The first part of this paper outlines how the workshop was conceived and convened, and provides an account of the considerations that each student had to take into account in the design of a syllabus. From here, we address the content of the workshop and reflect upon some of the important issues which were raised. Finally, we offer a number of recommendations in relation to the development of doctrinal students as future educators. By highlighting the importance of uniting research and teaching, it is hoped that this paper will contribute to postgraduate legal education in Ireland, and also internationally.
Review Essay—The Mystic Wand of Participation: An Appraisal of Mark Mazower's “No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations” (2010)
Authors: Taha Mai
Published: March 2019

Mark Mazower's latest book,No Enchanted Palace: the End of Empire and the Ideological Origins of the United Nationsintelligently weaves in the League of Nations as the primary informant of the United Nations to deconstruct any claims of discontinuities between the two institutions. In doing so, Mazower offers an eloquent polemic against the literature's tendency to idolize the United Nations' founding as a symbolic and material break from empire. Exploring the dark sides of its intellectual origins and early years, however, Mazower points to the decolonization movement to argue for the potential of the United Nations as a site of emancipatory struggle — his book concludes with a reinvestment in its promise of a more inclusive and just world order. The issue left to the reader, and which I hope to address in this review essay, is the legitimacy of Mazower's claim that the United Nations has indeed escaped its imperial heritage.
Towards a European Approach in the Cross-Border Infringement of Personality Rights
Authors: Kuipers Jan-Jaap
Published: March 2019

Globalization has led to the emergence of broadcasting services and books aimed at a global audience. Authors of books, journals, and articles have gained readers worldwide. Due to the Internet, the spreading of ideas on a global level has never been easier. The other side of the coin is that authors run a risk of being exposed to civil proceedings in many jurisdictions. What is considered to be proactive journalism, or a provocative academic comment in some jurisdictions is considered to be libel or defamation in others. We speak of “libel tourism” when defamation proceedings are brought in a forum that has only vague connections to the case, but happens to be very plaintiff-friendly.
Legitimacy and the Future of the European Court of Human Rights: Critical Perspectives from Academia and Practitioners
Authors: Dzehtsiarou Kanstantsin , Greene Alan
Published: March 2019

In April 2011, University College Dublin (UCD) School of Law research students held their Fifth Annual Postgraduate Conference, the theme of which was “The Legacy and Future of the European Court of Human Rights (ECtHR). Evaluating Sixty Years of the European Human Rights Project.” The articles contained in this special edition of the German Law Journal reflect the efforts made at this conference by its participants. While the papers presented vary quite widely in their substantive content, they are connected by a recurring theme— that the ECtHR faces a crisis of legitimacy. A judgment is legitimate if it is persuasive to the civic society constituted by the European Convention of Human Rights (ECHR), and perceived as authoritative by the subjects affected by the ECtHR's decision. The judgments of the ECtHR are fiercely criticized and their legitimacy is repeatedly questioned by the Contracting Parties and media in particular, and by civic society in general. As it stands, the ECtHR is suffocating from the overwhelming number of applications lodged, and even the tiny percentage of those applications that are decided by it face “a barrage of hostile criticism,” as Michael O'Boyle outlines in his article. The ECtHR's future, to a major extent, depends on how this crisis is tackled.
Separating Normalcy from Emergency: The Jurisprudence of Article 15 of the European Convention on Human Rights
Authors: Greene Alan
Published: March 2019

The European Convention of Human Rights (ECHR) is as much a political as it is a legal document. The European Court of Human Rights (ECtHR) constantly walks the delicate tight rope between vindicating human rights and respecting the sovereignty of contracting states. This balancing act is particularly sensitive when a situation of “exceptional and imminent danger” exists. In such instances of national security the state may need to act in a manner beyond the parameters of normalcy in order to neutralize the threat and protect both itself and its citizens. Article 15 of the ECHR therefore allows states to derogate from its obligations under the convention when a state of emergency is declared. On foot of a notice of derogation, a state has more discretion and flexibility to act accordingly to respond to a threat without being constrained by its obligations under the treaty. However, it is also in these conditions that human rights are at their most vulnerable as the state's response may encroach severely on individuals' rights and the liberal-democratic order of the state.