bluuebunny/crossref_metadata_2025 huggingface dataset:
International Law in the American Courts– The United States Supreme Court Declines to Enforce the I.C.J.'sAvenaJudgment Relating to a U.S. Obligation under the Convention on Consular Relations
Authors: Kirgis Frederic L.
Published: March 2019

The United States is a party to the Vienna Convention on Consular Relations (“the Consular Convention”). It requires in Article 36(1)(b) that the competent authorities of each State party inform the consulate of another party if the latter's national is arrested and requests that the consulate be notified. Article 36(1)(b) further requires the authorities to inform the person arrested of the right to communicate with the consulate. Article 36(2) says that the rights in Article 36(1) are to be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso “that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.”
The Laws of Others: A Jurisprudential Reflection on The Lives of Others
Authors: Hutchens Kristen , Nelson Jessica , Plachta Elizabeth , Rosamond Jonathan , Scannavino Nick , Shad Vimi , Miller Russell
Published: March 2019

The movie The Lives of Others is not simply a voyage back in time. For many, it is an introduction to an entirely new world, albeit a world with troubling resonance for the so-called “War on Terror.” Director Florian Henckel von Donnersmarck peels back the iron curtain to expose the day-to-day lives of an unlikely assemblage of artists, spies and Apparatchiks in East Germany right before the regime fell. Several themes are presented: the emptiness of power perverts an ideology and those who should wield the public's trust; the goodwill of a cold-hearted, intrusive spy becomes the salvation of a reluctant revolutionary; a neighbor's desire for self-preservation costs a lover her life. This widely acclaimed movie underscores the fragility and insecurity of normal life in East Germany and invites movie-watchers to reflect on the fragile quality of their present-day business, personal and social relationships.
The Administration of the Vocabulary of International Trade: The Adaptation of WTO Schedules to Changes in the Harmonized System
Authors: Feichtner Isabel
Published: March 2019

A common language is indispensible for reaching and maintaining understanding in all inter-subject relations, including international relations. One element of today's common language in the field of international trade in goods is the Harmonized Commodity Description and Coding System (the Harmonized System/HS) which is maintained by the World Customs Organization (WCO). The HS provides for a common vocabulary by classifying all traded goods according to a nomenclature. This common vocabulary facilitates, and avoids misunderstandings in, communications about products. It thus reduces transaction costs and consequently is of eminent economic importance for today's globalized trade relations. Take for example WTO tariff negotiations with respect to chocolate: While one party might assume that the product commonly referred to as white chocolate is included in the negotiations on chocolate, the other trading partner might assume that it is excluded for the reason that it does not contain cocoa and thus does not qualify as chocolate. Reference during the negotiations to specific positions of the HS nomenclature reduces the probability of such misunderstandings. If during the exemplary tariff negotiations parties would refer to the HS heading Chocolate no party could later claim that the negotiated tariff should also apply to white chocolate since the HS classifies the product which is commonly referred to as white chocolate under the heading Sugar Confectionary (and there under a specific sub-position) whereas chocolate containing cocoa is classified under the heading Chocolate. The vocabulary of the Harmonized System is a point of reference for many legal norms which relate to international trade in goods – in my example the legal obligation to comply with the negotiated tariff concession (Art. II GATT) and not to discriminate against like products (Art. I, III GATT). While the HS provides the vocabulary, these norms provide the grammar of a common language of international trade.
Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) – Conservation Efforts Undermine The Legality Principle
Authors: Fuchs Christine
Published: March 2019

CITES is acknowledged as one of the most successful international environmental treaties in the world. CITES is not just a conservation treaty, it is also a trade instrument that attempts to strike a balance between these often competing values.
Why Would International Administrative Activity Be Any Less Legitimate? – A Study of the Codex Alimentarius Commission
Authors: Pereira Ravi Afonso
Published: March 2019

This article examines the regulatory activity performed by the Codex Alimentarius Commission (Commission), which is the international body responsible for setting food standards and which has been the object of growing attention by lawyers. The main problem is that Codex standards, although they are not binding, strip national regulators of their discretion. This occurs because the Agreement on the Application of Sanitary and Phitosanitary Measures (SPS Agreement) and the Agreement on Technical Barriers to Trade (TBT Agreement) refer to them as relevant international standards. Furthermore, the World Trade Organization (WTO) Appellate Body has been construing its provisions in a way that makes it virtually impossible for national regulators to set higher levels of protection. From this it follows that, unless national constituencies are afforded the possibility to participate in the regulation of food safety at the outset before the Commission, when it comes down to setting national food standards national regulators are unable to fully respond to their concerns. This is all the more so if one considers that, while being undisputed that science plays a major role in the preparation of Codex standards, many issues the Commission has to address cannot be settled in strictly scientific terms. Instead, the latter enjoys a wide degree of discretion in striking a balance between fair trade and consumers' health. The political dimension surrounding the issues the Commission has to address coupled with the legal effect of Codex standards raises questions about its legitimacy. Yet any assessment of the legitimacy of the Commission is necessarily incomplete unless it takes into account the comparative performance of national regulatory authorities.
International Institutions and Individualized Decision-Making: An Example of UNHCR's Refugee Status Determination
Authors: Smrkolj Maja
Published: March 2019

In autumn 2005 a group of Sudanese asylum seekers and refugees discontented with the unbearable conditions in the United Nations High Commissioner for Refuges (UNHCR) office in Cairo started a sit-in protest near the office. The protesters were, besides venting their anger at the suspension of Refugee Status Determination procedures for Sudanese refugees due to the ceasefire between the Sudanese government and Sudan's People Liberation Army, also making their frustrations heard regarding UNHCR's lengthy procedures, its failure to provide them with proper assistance, the high numbers of rejected applications, improper interviews and their general treatment by UNHCR's personnel as well as their difficult social and health conditions which had been aggravated by the lack of proper assistance. They were demanding that this situation be remedied and calling for transparent and fair procedures. Shortly thereafter they were joined by many more protesters so that in the following three months a group of between 1,800 and 2,500 people stayed around UNHCR's premises. However, meetings and negotiations with UNCHR eventually failed. The crisis ended in a tragedy. On December 30, 2005 the Egyptian security forces proceeded with the forcible removal of the protesters from the venue in an action in which 28 refugees were killed, more than half of which were children and women, with several protesters missing after the events. The Cairo incident illustrates what the cited report on the events has rightly called “a tragedy of failures and false expectations” regarding international humanitarian and human rights institutions.
Procedures of Decision-Making and the Role of Law in International Organizations
Authors: von Bernstorff Jochen
Published: March 2019

There is no general body of procedural law for decision-making in international organizations. At the same time, many of the more than 230 existing international organizations (IOs) exercise public power through legislative and regulatory activities involving a myriad of decisions taken within these institutions every day. These decisions shape societal perceptions of a wide range of pressing humanitarian-, ecological, technical- and scientific issues and direct actions taken in these fields. From a rule of law perspective any exercise of public power outside a limiting framework of public law is reason for concern. According to the domestic rule of law traditions, public law is supposed to prescribe the form in which public power is exercised. It regulates the process of decision-making by establishing binding procedures, including procedural rights of participants and affected individuals. In case of unlawful exercise of power by public officials affected persons and entities have legal recourse to an independent court or tribunal. If formalized procedural constraints for the exercise of public authority are important at the national level they are all the more so at the international level since conflicts over substantive legal standards and disagreement over community values are usually more acute.
Case-note on Joined Cases C-402/05 P & C-415/05 PYassin Abdullah Kadi & Al Barakaat International Foundationv.Council of the European Union & Commission of the European Communities
Authors: Tzanou Maria
Published: March 2019

“Any society that would give up a little liberty to gain a little security will deserve neither and lose both.”

On 3 September 2008, the European Court of Justice (ECJ) handed down its long-awaited decision on the Kadi and Al Barakaat International Foundation where, setting aside the relevant judgments of the European Court of First Instance (CFI), the Court held that the Community judicature must ensure the full review of the lawfulness of all Community acts. This included those deriving from UN Security Council's resolutions, in the light of the fundamental rights as protected by Community law.
The EU's Role in Restraining the Unrestrained Trade in Conventional Weapons
Authors: Yihdego Zeray
Published: March 2019

The excessive availability of conventional weapons, small arms and light weapons (SALW) in particular, and the unrestricted trade which make them available raise serious security, humanitarian and social-economic concerns of international nature. These weapons are the major tools of contemporary armed conflicts, abuses of human rights and humanitarian norms, violence, terrorism and criminality. This has led many, including the former United Nations (UN) Chief, Kofi Annan, to believe that these arms are the real weapons of mass destruction of our time, causing half a million deaths annually. This is not to suggest that conventional weapons are not also useful for good causes. They are necessary for maintaining law and order and self-defence purposes. However, their proliferation and unrestricted transfer across borders, especially from the industrialized world to developing (and conflict-torn) countries, have not yet been addressed. In other words, their availability and supply have not been subjected to proper (legal and enforceable) restrictions.
The Letter of the Law: Legal Reasoning in a Societal Perspective
Authors: Amstutz Marc
Published: March 2019

In order to introduce the riddle that is at the heart of my contemplations, I would like to tell a story taken from Ibn Arabis' myth of creation: God existed all alone in an eternity that has no beginning and no end. Yet, the names that were hidden within him, the most beautiful names of God that are found in the Koran in Sure 59, 24 yearned to manifest themselves. So God said: “I was a hidden treasure and wanted to be recognized; so I created the world”. The names within him heeded their yearning to be recognized and broke free from the hidden, godly being, as breath that has been held too long leaves the body.
Brazilian Legal Education: Curricular Reform that Goes Further without Going Beyond
Authors: Filho Roberto Fragale
Published: March 2019

The celebration of 180 years of legal education in Brazil, held in August 2007, was marked by strong criticism of theOrdem dos Advogados do Brasil(Brazilian Bar Association) and the higher education expansion policy which was undertaken in the late 1990s, establishing more than a thousand law schools in the country. Theescolas de enganação(schools of illusion), created mainly during the last decade, would have increased the numbers in the professional college, which currently has around 600,000 lawyers, to approximately two and a half million, if it were not for the professional filter of the Bar Exam. In other words, the proliferation of mass legal courses in Brazil would have enabled the emergence of educational merchants, specializing in the sale of an illusion of social elevation and professional success, which, thanks to the control of entry into the professional corporation, did not happen.
Born to be Wild: The “Trans-systemic” Programme at McGill and the De-Nationalization of Legal Education
Authors: Dedek Helge , de Mestral Armand
Published: March 2019

Legal education is changing. What is changing is our understanding of “education”, of how we learn and how we should teach. Also changing is our understanding of how to define what is “legal” about “legal education”. Most will nowadays agree that legal education should be more than a vocational training for the practice of the profession in a particular jurisdiction. In analyzing the development of legal education in recent years, we can distinguish two trajectories. Firstly, there is the ongoing attempt of specifically the North American legal academy to make legal studies a transdisciplinary endeavour, a development closely connected to the major “paradigm shifts” in legal theory in the 20th century. Secondly, it seems that jurisdictional boundaries have lost significance in an internationalized, globalized and post-regulatory environment. This calls into question the very notion of “law” itself, at least as traditionally understood as a system of posited norms within a given jurisdiction. How should both developments be reconciled?
'Hanse Law School' - A Promising Example of Transnational Legal Education? An Alumna's Perspective
Authors: Weber Franziska
Published: March 2019

Starting with the European Coal and Steel Community in 1951 and the establishment of the European Economic Community by the Treaty of Rome in 1957 with only 6 member states, Europe has since become a political and economic union of 27 Member States that has wide law-making competences and thus considerably affects daily life in Europe. With the overall aim of creating a common market for economic activities, borders are largely disappearing and people are free to travel to other Member States and stay, study or work.
Sustainable Professionalism
Authors: Farrow Trevor C.W.
Published: March 2019

The traditional narrative of the legal profession has run its course. Lawyers are looking for ethically sensitive ways to practice law that “assume greater responsibility for the welfare of parties other than clients” and that increasingly amount “to a plus for this society and for the world of our children.” Lawyers are also seeking ways to practice law that allow them to get home at night and on weekends, see their families, work full or part-time, practice in diverse and “alternative” settings, and generally pursue a meaningfulcareerin the law rather than necessarily a totallifein the law. Similarly, law students are hoping not to be asked to make a “pact with the Devil” as the cost of becoming a lawyer, and are instead looking to find areas in the law that fit with their personal, political, and economic preferences. An increasing number of legal academics are teaching, researching, and writing about progressive changes to the way we view the role and purpose of lawyering. Law faculties are actively reforming their programs and creating centres and initiatives designed to make space for innovative ethics offerings and public interest programs. Law societies and other regulatory bodies are slowly chipping away at some of the time-honoured shields of ethically suspect client behaviour, while at the same time facing demands for increased accountability. The bench and the bar are taking an active interest in addressing a perceived growing lack of professionalism within the practice. The public is increasingly skeptical of the distinction that continues to be drawn between legal ethics and “ordinary standards of moral conduct.” Finally, clients are not only expecting lawyers to actively canvass methods of alternative dispute resolution—the alternative to the adversarial and costly litigation process—but they are also demanding evidence of general sustainable professional practices from their legal counsel.
Lisbon in Karlsruhe: Maastricht's Epigones At Sea
Authors: Schönberger Christoph
Published: March 2019

On 30 June 2009, the Second Senate of the German Federal Constitutional Court handed down its long-awaited decision on the compatibility of the Treaty of Lisbon with the German Constitution, the Basic Law. It was no surprise that the Court upheld the constitutionality of the treaty. Even the plaintiffs could not have imagined in their wildest dreams that the Court would actually say “no”. What is more than disturbing, however, is the tortuous way in which the Court's vast and verbose opinion purports to be justifying the approval of the treaty. There is probably no other judgment in the history of the Karlsruhe Court in which the argument is so much at odds with the actual result. To the point of perplexity and bewilderment, the reader of the opinion is hardly able to find any reasons supporting the outcome of the case. At the moment when the Court approves the most far-reaching revision of the European founding treaties since Maastricht, it does not present any serious argument supporting the conclusion it has reached, except sketchy evocations of a principle of “openness towards European law” it finds enshrined in the Basic Law and brief solemn reminders of a murderous past. Instead, the main thrust of the argument is a ringing indictment of European integration based on a certain idea of egalitarian and majoritarian parliamentary democracy that the Court derives from the Basic Law. Unfortunately, this standard of democratic legitimacy can only describe certain centralized states; it is unable to account for federal States, including Germany, and cannot be made to fit the federal system of the European Union.
The German Constitutional Court says “Ja zu Deutschland!”
Authors: Halberstam Daniel , Möllers Christoph
Published: March 2019

In announcing the decision of the Bundesverfassungsgericht (BVerfG - Federal Constitutional Court) on the constitutionality of the Lisbon Treaty, the Presiding Justice of the Second Senate summed up the judgment by proclaiming: “Das Grundgesetz sagt ‘Ja' zum Vertrag von Lissabon.”
The Lisbon Case: A Critical Summary
Authors: Wohlfahrt Christian
Published: March 2019

The aim of this casenote is to depict the essential content of the German Federal Constitutional Court's Lisbon Case. Therefore, it is of mainly descriptive nature. It primarily addresses readers wishing for a brief overview before approaching the decision itself or particularly those who might like to avoid reading the ruling in its exuberant length. In order to keep this a straightforward contribution, large parts of the judgment had to be set aside and certain necessary simplifications had to be undertaken. I acknowledge these and commend readers to the other contributions in this special collection of the German Law Journal for varied and deeper treatments of the case.
The European Private Company - Entering the Scene or Lost in Discussion?
Authors: Kornack Daniel
Published: March 2019

More than a year has passed since the European Commission introduced the European Private Company (Societas Privata Europaea, SPE) in June 2008. What has become of the draft statute? This paper is meant to give a short overview of its basic features, the other European institutions' discussions and statements, the problems that prevented the proposal from being adopted so far and possible solutions that were introduced.
Anti-Corruption Compliance Standards in the Aftermath of the Siemens Scandal
Authors: Sidhu Karl
Published: March 2019

Legal proceedings against Siemens AG arising from allegations of bribery were concluded on 15 December 2008 in Munich, Germany, as well as in Washington, DC. The Siemens case has been the largest of its kind. It has changed the compliance landscape and has brought criminal law out of its dark corner and to the attention of the corporate community. Board directors and other managers have painfully become aware that noncompliance with criminal law may not only threaten the existence of a company, but also may lead directly to personal criminal liability. The subject of compliance has also raised the attention of legal advisors and accountants that naturally must recommend the “best standard,” especially if the sensitive subject of corruption is concerned. Last but not least, prosecutors now have a deeper inside knowledge of corruption structures than ever before. Thus, compliance standards tend to rise expeditiously even without regulators taking any action. Siemens thereby smartly has lifted compliance to the “cornerstone” of its business and generally - in particular when it comes to anti-corruption programs -presents its improved and expanded compliance organization as a leading example.
Conference Report—U.S. & German Bench and Bar Gathering: “A New Bridge Across the Atlantic”: The Future of American Patent Litigation
Authors: Hurst David A.
Published: March 2019

The U.S. & German Bench and Bar Gathering, “A New Bridge Across the Atlantic,” held in Washington, DC, in May 2012, was aptly timed to discuss the developments in German and American patent law. The Federal Circuit Bar Association and the Patentanwaltskammer (German Patent Lawyers Association) brought distinguished judges and attorneys from their respective countries to discuss the current state of the two patent systems. This involved consideration of where the two systems might be converging and why the two countries have had dissimilar litigation patterns. Particularly with respect to the latter of these inquiries, much of the debate throughout the conference focused on the differences in litigation discovery and procedural rules. The conference highlighted the fact that, at the most fundamental level, these differences are a product of differing perceptions of how justice should be administered. A brief overview comparing patent litigation in Germany and the United States will help frame this report.
The Development of German Corporate Law Until 1990: An Historical Reappraisal
Authors: Muchlinski Peter
Published: March 2019

The development of modern corporate law can be located in four “origin” legal systems: France, England, Germany and the United States (specifically in leading State Jurisdictions such as New York, New Jersey and Delaware). These systems are often segregated between an Anglo-American “outsider” system of corporate law and governance and the Continental “insider” system. This has its political economy parallel in the “Varieties of Capitalism” literature, which separates the major capitalist economies into “Liberal Market Economies”, such as the UK and the USA, and “Co-ordinated Market Economies”, such as Germany. These distinctions concentrate, in particular, on whether the system of corporate finance is based on open stock markets and widely dispersed “outsider” shareholding, as in the Anglo-American model, or on finance carried out by “insider” universal investment banks with places on the supervisory organs of corporations as is often claimed to be the case for the German system.
The Existential Crisis of the European Union
Authors: Menéndez Agustín José
Published: March 2019

In this paper, I put forward four theses and one coda. The theses can be summarized as follows:

Thesis one (section B): Five crises, not one. The European Union is not undergoing one crisis, but is instead suffering several simultaneous, interrelated, and intertwined crises—crises, which are global, not exclusively European. Put differently, the subprime crisis turned the economic, financial, fiscal, macroeconomic, and political structure weaknesses of the Western socio-economic order into at least five major crises.
The Specter of Authoritarian Liberalism: Reflections on the Constitutional Crisis of the European Union
Authors: Wilkinson Michael A.
Published: March 2019

“We seem to be caught in an ‘impossible interregnum': After the end of classical national sovereignty, before the beginning of a postnational sovereignty.”
What Is Political Union?
Authors: Somek Alexander
Published: March 2019

Recent proposals to fix Europe's ailing monetary union have led some to endorse a stronger fiscal union. Such a fiscal union, which would supposedly comprise stronger budgetary supervision as well as a modicum of revenue collection by the Union itself, is taken to mark the step towards “political” union. The article explores the question of what, if anything, is understood by “political” in this context. After distinguishing three possible meanings of political union, the article argues that a true union of this kind would rest its focus on the form of life that can be sustained among Europeans. Surprisingly perhaps, the article concludes that less centralization and unwinding monetary union in its current form may well be more congenial to a political union than hectic bids for fiscal centralization.
Should the Economic and Monetary Union Be Democratic After All? Some Reflections on the Current Crisis
Authors: Leino Päivi , Salminen Janne
Published: March 2019

During the past months the European Council agenda has been dominated by Europe's economic crisis, which combines elements of banking crisis in the euro area and individual Member States' debt crisis – and has turned into something of an existential crisis for the Union as a whole. Many questions concerning the Union's legitimacy have been raised in the context of the current debates pointing out how the role of democratic institutions has turned blurry while market pressure has been tackled in quickly developing institutional structures by taking fast decisions on major economic commitments involving a tightened belt both for those receiving the aid, and for those giving the necessary guarantees required by the creditors. As the crisis has evolved, these questions have become more or less fundamental in nature since they have increasingly encompassed the trust in the possibilities of the Union to manage the crisis through its own decision-making. But at the same time, crises also bring about potential for change.
The Logic of Proportionality: Reasoning with Non-Numerical Magnitudes
Authors: Sartor Giovanni
Published: March 2019

This paper aims at explaining the basic logical structure of proportionality assessments, under the assumption that such assessments are based on quantitative reasoning, even when no numbers are given.
The Metamorphoses of Universal Service in the European Telecommunications and Energy Sector: A Trans-Sectoral Perspective
Authors: Nagy Csongor István
Published: March 2019

Universal service has a pivotal role in market liberalization and competition on both sides of the Atlantic. It is central to the European thinking on markets and public service and is an inevitable element of market liberalization and sectoral competition rules. The universal service aims at preserving the public service in a competitive environment. The paper analyzes this cornerstone of the European thinking from a comparative and trans-sectoral perspective, demonstrating that the concept of universal services should be fundamentally re-conceptualized in EU electronic communications and energy regulation.
Women Between a Rock and a Hard Place: State Neutrality vs. EU Anti-Discrimination Mandates in the German Headscarf Debate
Authors: Mushaben Joyce Marie
Published: March 2019

Although it guarantees individual religious freedom and the inviolability of “human dignity,” the German Basic Law also infers the principle ofstate neutralityregarding the exercise of religious freedom in public life and civil service domains. TheLänder(states), however, enjoy substantial discretion in matters of religion and education, which has led to major divisions as to whetherMuslimas(Muslim women) can wear headscarves aspublicemployees. In 2006 Berlin adopted its own Neutrality Law (Berliner Neutralitätsgesetz) prohibiting religious attire among teachers, judges, and police. Within weeks, the city-state's first anti-discrimination officer was overwhelmed with new discrimination cases involving private sector employers as well. This essay examines the tensions and paradoxes inherent in Berlin's efforts to uphold religious “neutrality” among civil servants while also meeting the requirements of Germany's General Equal Treatment Act and three recent EU Directives 2000/43/EC, 2000/78/EC, and 2002/73/EG), addressing race, religion and equal treatment in employment, respectively. This article argues that the Neutrality Law not only violates national and supranational anti-discrimination regulations but that local officials are actually drawing upon the latter to undermine the enforcement of their own statute, in the hope that it will be repealed.
Ghetto Pensions
Authors: Simon Sven , Weber Avraham
Published: March 2019

Under the Nazi regime, tens of thousands of Jews lived in ghettos, working more or less normal jobs. Some of these ghettos had their own employment centers, and some employers even paid into retirements funds. Legislation known as “German Pensions for Work in Ghettos,” or by its German acronym, ZRBG (Gesetz zur Zahlbarmachung von Renten aus Beschäftigungen in einem Ghetto) was passed in 2002 to grant pensions to some of these former laborers. But more than ten years after its passage, its implementation is still subject to considerable conflict. For many years, former laborers in Nazi ghettos have been fighting to get the pension that this law ostensibly guarantees them, but the vast majority of their applications have been rejected. Since 2002, around 70,000 survivors have invoked the ZRBG. However, over ninety percent of these applications were initially rejected by German authorities for various legal and practical reasons. This essay is an attempt to summarize the major steps in the implementation of the law. It begins with an overview of the historical background, and then will shift focus to the judicial, diplomatic, political, and practical problems with the implementation of the ZRBG.
Engaging the Fundamentals: On the Autonomous Substance of EU Fundamental Rights Law
Authors: Augenstein Daniel
Published: March 2019

Some years back, Philip Alston argued that processes of globalization, such as the privatization of state functions and the deregulation of private power, while purportedly value-neutral, have “acquired the status of values in and of themselves.” The market is increasingly seen as “the most efficient and appropriate value-allocating mechanism.” As a consequence, human rights become subjected to a litmus test of their “market-friendliness.” As Alston puts it:

In the world of globalization, a strong reaction against gender and other forms of discrimination, the suppression of trade unions, the denial of primary education or health care, can often require not only a showing that the relevant practices run counter to human rights standards but also a demonstration that they are offensive to the imperatives of economic efficiency and the functioning of the free market … In at least some respects the burden of proof has been shifted—in order to be validated, a purported human right must justify its contribution to a broader, market-based “vision” of the good society.
Hungary and theIndirectProtection of EU Fundamental Rights and the Rule of Law
Authors: Dawson Mark , Muir Elise
Published: March 2019

According to Article 2 of the Treaty on European Union, the European Union is a political and economic union founded on a respect for fundamental rights and the rule of law, referred to hereafter as EU fundamental values. The central place of this commitment in the EU Treaties suggests a founding assumption: That the EU is a Union of states who themselves see human rights and the rule of law as irrevocable parts of their political and legal order. Reminiscent of the entry of Jorg Haider's far-right Freedom Party into the Austrian government in 2000, the events of 2012 have done much to shake that assumption; questioning both how interwoven the rule of law tradition is across the present-day EU, and the role the EU ought to play in policing potential violations of fundamental rights carried out via the constitutional frameworks of its Member States. Much attention in this field, much like the focus of this paper, has been placed on events in one state in particular: Hungary.
The Relation Between Political Constitutionalism and Weak-Form Judicial Review
Authors: Tushnet Mark
Published: March 2019

At least in some subject-matter domains—most notably, social and economic rights— weak-form constitutional review may have become the predominant form of constitutional review in practice. This essay describes the obvious connections between weak-form review and political constitutionalism: Weak-form review allows the courts to bring to legislatures' attention constitutional difficulties that may have been overlooked in the process of enactment. This may occur because of the burdens of inertia and coalition-building, as identified by Rosalind Dixon, or because of unanticipatable difficulties of application in individual cases, the sort of difficulties that are central to Alon Harel's account of constitutional review as justified by a right to a hearing. Once legislatures have been so notified, they can address—or deliberatively refuse to address—the difficulties the courts have identified. Political constitutionalism provides an account of how they do so. This essay then discusses some of the political conditions that must be in place for political constitutionalism to be normatively attractive, relative to judicial constitutionalism. It concludes with some speculations about the utility of weak-form review in dealing with matters at the core of first-generation rights, such as seditious speech, after describing its utility in dealing with more “modern” problems associated with first-generation rights, such as hate speech and sexually explicit expression.
Karlsruhe Makes a Referral
Authors: Di Fabio Udo
Published: March 2019

On 7 February 2014 in the OMT Case, the German Constitutional Court in Karlsruhe referred a question about the interpretation of Treaty law to the European Court of Justice for the first time. The question was whether the European Central Bank exceeded its mandate when it declared, in September 2012, that it was prepared to make emergency, unlimited purchases of specific states' bonds. Some view the referral as a genuflection acknowledging the judicial superiority of European Union jurisprudence. Has the Karlsruhe Court relinquished its role as “the final arbiter” and thereby surreptitiously bid farewell to the German sovereignty that the same Senate of the Constitutional Court so vigorously endorsed in the Lisbon Treaty Case in 2009?
ECB, ECJ, Democracy, and the Federal Constitutional Court: Notes on the Federal Constitutional Court's Referral Order from 14 January 2014
Authors: Murswiek Dietrich
Published: March 2019

The European Central Bank's (ECB) program of purchasing government bonds, the OMT program (Outright Monetary Transactions Program), which was announced on 6 September 2012, is illegal. With this program, the ECB transgresses its powers. This is the central message of the Federal Constitutional Court's decision from 14 January 2014. However, the decision is not final. The Federal Constitutional Court has suspended the trial and has referred the matter to the European Court of Justice (ECJ) for a preliminary ruling. Only after the ECJ has examined the compatibility of the OMT program with European law will the Federal Constitutional Court pronounce its final judgment.
The Federal Constitutional Court: Fifty Years of the Struggle for Gender Equality
Authors: Jaeger Renate
Published: March 2019

It has been a long journey from the noble declaration in the Federal Republic's new constitution (Grundgesetz [Basic Law]) that women and men have equal rights, to the establishment of concrete laws and jurisprudence that now assure that women and men actually receive equal treatment and that women are no longer disadvantaged in society (and even more, laws and jurisprudence that assure that women receive support if they encounter structural disadvantages). This article, in looking back on its first fifty years of service, surveys the decisive role that the Bundesverfassungsgericht (Federal Constitutional Court) played in that journey.
Much Ado about Amsterdam: CDU-CSU Politics, Länder Influence and EU Treaty Reform
Authors: Mazzucelli Colette
Published: March 2019

“Not a year goes by without some fresh blueprint being drawn up and fed into the continuing debate. Each succeeding blueprint can be likened to the way in which some artists go over their work again and again, gradually building up a deep richness to the emerging picture.”

“Old paint on canvas, as it ages, sometimes becomes transparent. When that happens it is possible, in some pictures, to see the original lines: a tree will show through a woman's dress, a child makes way for a dog, a large boat is no longer on an open sea. That is called pentimento because the painter ‘repented,’ changed his mind. Perhaps it would be as well to say that the old conception, replaced by a later choice, is a way of seeing and then seeing again.”

I. Introduction [1] The aim of this article is to contribute to our understanding of the legal and political dimensions of treaty reform in the European Union (EU). It raises a conceptual issue by addressing the conditions under which Chancellor Kohl yielded to an increase in subnational influence and the extent to which Länder (Federal State) politicians were able to exercise that influence to determine the outcome in a key area during the Amsterdam European Council, 16-18 June 1997. The initial section highlights a political and legal analysis of German politics and European treaty reform during the 1996 process. The second section explores emerging asymmetrical specificity on the German political and institutional landscape post-Maastricht. The closing section offers an explanation of the results in qualified majority voting (QMV) for the treaty provisions on freedom, security and justice at Amsterdam, and the implications for our understanding of treaty reform in the Union.
European Court of Human Rights Rules in the On-going Dispute Between Liechtenstein and Germany
Authors: Schorkopf Frank
Published: March 2019

On July 12, 2001, the European Court of Human Rights (ECHR) handed down its judgement in the case of Prince Hans-Adam II of Liechtenstein v. Germany (application number 42527/98). The Court of Human Rights unanimously rejected the applicant's alle-gation that Germany violated Article 6 § 1 (access to court and fairness of the proceedings), Article 1 of Protocol No. 1 (protection of property) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights.
More Victims of the New Economy: Ad Hoc-Publicity and Protection of Shareholders
Authors: Maurer Andreas
Published: March 2019

For the first time in the \“New Market\”\'s history, a claim for damages against Infomatec, a NEMAX-company has been ruled in favor of plaintiff. Nemax is the index in which New Market companies are quoted. On September 26, 2001, the Landgericht (Regional Court) Augsburg granted a compensation worth DM 100.000 for a former shareholder of Infomatec [\“company\”]. This article will first give a brief survey of the facts as well as an explanation of the so-called \“Ad Hoc-notifications\” under German securities law before outlining the Court\'s holding.
Watershed or Phoenix From the Ashes? – Speculations on the Future of International Law After the September 11 Attacks
Authors: Hoffmann Florian
Published: March 2019

In the first place, I should like to stress that the emphasis of my rather ambitious-sounding subtitle is on ‘speculation’, and not on ‘the future of international law’; for one, it is, at least at the time of writing, entirely speculative to think about the mid- and long-term consequences of the September 11 attacks, since, so far, the announced response to the attacks by the United States, the ‘West’ and the ‘civilised world’, has not yet happened. We are in a strange state of limbo, where everything seems possible, from secret James Bond-type operations to outright military attack of Afghanistan by the US and NATO troops, from civil war in Pakistan to biological —or even nuclear-counterattacks by the terrorist fold, from ‘business as (almost) usual’ to ‘the world is out of joint’. At such times, to speculate is not only all one can do, but it is, I believe, positively encouraged for those who professionally and/or passionately deal with the structure and meaning of social reality, as, inter alia, international legal academics do. Secondly, the emphasis is also on speculation because, evidently, it would be quite preposterous to pretend to set out, in a very brief comment written ‘out of the moment’, what all this will come to mean for so richly textured an academic discourse as international law. Yet international law and international lawyers are in everyone's mouth at this moment, and so it seems precisely apt to ‘speculate’ —and no more—, in rough sketch, about the consequences the events of September 11 and their political-military aftermath could have on the theory and practice of the ‘law of nations’.
Patently Unsatisfactory?: Community Legislative Competence and the ECJ Biotech Decision
Authors: MacLaren Malcolm
Published: March 2019

On 9 October 2001, the European Court of Justice dismissed (1) a challenge by the Netherlands with the support of Italy and Norway against the Community Directive on the legal protection of biotechnological inventions. (2) Although the Biotech Directive relates to a wide range of public concerns and the Application for its annulment was based on a half-dozen different pleas, the following article will focus on the case as it relates to European Community treaty limitations. It will critically examine the perspectives on the principles of harmonisation and subsidiarity presented in the Application, the Advocate General's Opinion and the Court's Judgment within the broader context of the Community/Union's past and future development. The examination will reveal that in this case the Court has foregone a good opportunity to delimit 'positive integration'. (3) It could have made an important contribution to the on-going discussion about power-sharing between the national and supranational levels. While the judgment does strongly affirm the positive integration paradigm, the margins of the EU's legislative policy competences remain blurred due to its oft-opaque reasoning. The judgment raises, directly and indirectly, as many questions as it answers.
European Arrest Warrant Act is Void – The Decision of the German Federal Constitutional Court of 18 July 2005
Authors: Mölders Simone
Published: March 2019

In its judgment of 18 July 2005, the Second Senate of the Federal Constitutional Court (FCC) declared the European Arrest Warrant Act (Europäisches Haftbefehlsgesetz – hereafter called the EAWA) of 21 July 2004 unconstitutional and void.

However, the result of total nullity of the EAWA, as well as certain points of the Court's reasoning were not undisputed within the senate, which becomes obvious with the dissenting opinions of the judges Broß, Lübbe-Wolff and Gerhardt. Beyond these judges, the ruling faced scholars’ criticism as well.
Law and Medicine: Notes on the Meeting of German-Speaking Public Law Assistants in Vienna (2006)
Authors: Breuer Marten
Published: March 2019

Meetings of German-speaking Public Law assistants have, as was explained in Daniel Thym's report on the Bielefeld meeting in 2005, been a long-standing tradition. Therefore, it is not surprising that the Austrian capital has already seen four meetings of this kind, in 1970, 1981, 1994 and now in 2006. More than 150 Public Law assistants from Germany, Switzerland and (needless to say) Austria convened from 21 to 24 February in order to discuss the implications of the general topic “Law and Medicine”. In accordance with the European idea, the circle of participants was not restricted to assistants coming from those three countries but the organizers had successfully encouraged German-speaking assistants from other EU countries to make contributions. Indeed, European law, in terms of contents, also played a major role.
Limits and Limitations of Power: The Continued Relevance of Occupation Law
Authors: Afsah Ebrahim
Published: March 2019

Lawyers are trained toapplyrules to certain situations, and thus determining whether a particular behaviour is norm-conformant or not. It is generally assumed that rules as such exist and are applicable in a given situation. While there might be a debate about identifying the appropriate normative set among competing legal frameworks, it is generally taken as a given that binding rules exist and that they are habitually complied with. With regard to international relations, this basic ontological outlook contrast somewhat with the analytical conceptions taken by other disciplines which rely on other explanatory variables – notably power and interest – to account for the behavioural patterns of states.
It's about legal practice, stupid
Authors: Möllers Christoph
Published: March 2019

With his book “The Gentle Civilizer of Nations”, the Finnish expert on international law Martti Koskenniemi, became the most widely read author in his field overnight. In the “Gentle Civilizer”, Koskenniemi presented a new history of international law between 1870 and 1960. The tremendous success of this book rested less on an amazing number of revealing observations, but rather on its new take on the history of this discipline. In Koskenniemi's interpretation, the scientific project of international law did not start off as an endeavour that was centred on the sovereignty of nation-states. Instead, the international lawyers of that era saw their subject in the light of the idealist political project of internationalism. When they were forced to give up their high hopes in the course of the 20th century — this is where the twist of the book lies — they not only abandoned their dreams, but also their craft as lawyers. They became mere engineers of international relations, pragmatists, and apologists of governmental power. In order to retrieve the craft of international law, Koskenniemi concludes, the discipline needs to handle legal forms in a politically reflective manner. Koskenniemi has labelled this squaring of the circle, in a much-cited expression, as the “Culture of Formalism.”
Rebel Without a Cause? Martti Koskenniemi and the Critical Legal Project
Authors: Beckett Jason A.
Published: March 2019

Few books have attained the influence and impact of Martti Koskenniemi'sFrom Apology to Utopia(FATU); fewer still could have made anything like such an impact with a publication run and consequent distribution as small as FATU's. Thus, as has undoubtedly been said before, and will undoubtedly be repeated subsequently, Cambridge University Press must be congratulated on their decision to publish a new edition, with a far larger print run, and wider distribution.