bluuebunny/crossref_metadata_2025 huggingface dataset:
German Federalism – An Outdated Relict?
Authors: Hillgruber Christian
Published: March 2019

Germany is currently in a deep structural crises which has been furthered by the combination of ongoing economic stagnation and a desolate situation of state finances. That these circumstances are due to—according to a widespread opinion—not just the failure of political leadership in the Federation and Länder during the last decades, but also, and especially, the German system of federalism in its current form, is anything but evident. It has become commonplace to hear that the German federal state is in the throes of a serious legitimacy crises and is in need of fundamental structural reform, if the current federation is to have any future. Advocates of reform claim the process needs to result in a widespread disentanglement of powers, so that responsibility can once again be clearly attributed to its proper bearers. Meanwhile, criticism continuously takes on an ever stronger tone: Germany is supposedly to have fallen into the “trap of federalism”. As Klaus von Dohnanyi stated: “If, as in our German Bund-Länder-consensus-system of the so-called ‘cooperative federalism', one level can always interfere with the other level even into details—and that is now the case in almost every aspect— immobility and stagnation, irresponsibility and chaos appear. It would have been better, if we had chosen a centralistic organization. Centralism is better than halfhearted decentralism. A well-lead central state is better than an undecided federalism.”
Opinion: Guantanamo Is Not the Problem
Authors: Mégrét Fréderic
Published: March 2019

The question of the detention of suspected Al-Quaida terrorists on Cuba is fast on its way to becoming a cause célèbre. It has all the attributes of it: the big names, the imminent courtroom drama, the drumbeat of the media. Camp X-Ray has become a symbol, although, of what is not entirely clear.
The ICJ Judgement on the Belgium v. Congo Case (14 February 2002): a Cautious Stand on Immunity from Prosecution for International Crimes
Authors: Frulli Micaela
Published: March 2019

On February 14, 2002, the International Court of Justice (ICJ) rendered a judgement inCase Concerning the Arrest Warrant of 11 April 2000(Democratic Republic of Congo v. Belgium). The dispute had arisen after a Belgian investigating judge issued an international arrest warrant - based on charges of war crimes in an internal armed conflict and crimes against humanity - against the incumbent Minister for foreign affairs of the Democratic Republic of the Congo (DRC), Mr. Abdulaye Yerodia Ndombasi. The arrest warrant was issued under the Belgian Law of 16 June 1993 (as amended by the Law of 10 February 1999) which establishes that Belgian courts shall have “pure” universal jurisdiction in respect of serious violations of international humanitarian law. The Court found that Belgium violated its legal obligations towards the DRC in that it failed to respect the immunity from criminal jurisdiction and the inviolability which the then Minister for Foreign Affairs of the DRC enjoyed under international law. The Court also found that Belgium must cancel the arrest warrant and so inform the authorities to whom it was circulated.
The 1st ‘Advanced Academy on International Studies in Human Rights and Humanitarian Law’ on Robben Island, Cape Town (S.A.)
Authors: Hoffmann Florian
Published: March 2019

“ROBBEN ISLAND IS A VERY SPECIAL PLACE in the new South Africa. No one in South Africa [and few elsewhere] refuses an invitation to come here“; with these words Justice Pius Langa, Vice-President of the South African Constitutional Court, aptly alluded to the symbolic significance of the place chosen as the venue for this first International Human Rights Academy. Indeed, it turned out to be quite an ingenuine idea on part of the Academy's organisers -namely Prof. Jeremy Sarkin from the University of Western Cape (UWC), Prof. Leo Zwaak from Utrecht University, and Prof. Johan Vande Lannotte from Ghent University, as well as Prof. Asbjorn Eide from the Norwegian Institute of Human Rights- to bring, for the first time ever, thirty-five participants from twenty-two countries to the place where Nelson Mandela served eighteen of his 27-years in prison and about which one of his fellow inmates, Ahmed Kathrada, who is now the Chairperson of the Robben Island Council, said that “we [the ex-prisoners] would want Robben Island to reflect the triumph of freedom and human dignity over oppression and humiliation, of courage and determination over weakness, of a new South Africa over the old”. As such, it was, perhaps, the ideal place to devote a good two-and-a-half-weeks (from April 3 to 20) to human rights in all their shades and colours.
Unique Combination of Theory and Practice: Institute for Law and Finance offers LL.M. (Finance) in Frankfurt
Authors: Konopatzki Volker
Published: March 2019

Frankfurt, financial center of continental Europe, is home to the European Central Bank (ECB) and the Deutsche Bundesbank (the German central bank) as well as to Deutsche Börse AG (German stock exchange). Most of the important German private banks have their headquarters there, and many banks from abroad have established their subsidiaries in Frankfurt. Besides, the biggest German and international law firms have their largest German offices in the financial district of the City. Unsurprisingly, the Johann Wolfgang Goethe-Universität, one of the biggest universities in Germany, has used this advantage of location for building up and expanding its research and teaching program in Business Law and Economics. Both located in the University, the Institut für Ausländisches und Internationales Wirtschaftsrecht – AIW (Institute for Foreign and International Business Law) and the Center of Financial Studies, which is internationally well-known for its research on financial markets, financial intermediaries and monetary economics, are highly reputed.
News of Atypical Work in Germany: Recent developments as to fixed-term contracts, temporary and part-time work
Authors: Schmidt Marlene
Published: March 2019

Recently, the German law governing atypical forms of work has been amended in several respects. TheBeschäftigungsförderungsgesetz1985 (BeschFG 1985 - Act on the Improvement of Employment Opportunities), regulating part-time work (Teilzeitarbeit) and (partially) fixed-term contracts (befristete Arbeitsverhältnisse), has been replaced by theGesetz über Teilzeitarbeit und befristete Arbeitsverträge(TzBfG - Act on Part-Time Work and Fixed-Term Contracts), in force since 1 January 2001, and implementing Directive 97/81/EC on Part-Time Work and Directive 99/70/EC on Fixed-Term Contracts. The legislator, however, did not confine himself to implementing EC law but regarded the obligation to implement the Directives as a stimulus to amend the right of part-time work and fixed-term contracts fundamentally. In doing so, he fixed a level of employee protection much higher than required by the Directives. The legal rules for temporary work (Leiharbeit) have not yet been fundamentally changed. But theJob-AQTIV-Gesetz(Job-AQTIV-Act) has amended it in a way at least partially anticipating the presumably soon to be adopted Directive on Temporary Work. Both acts, the Act on Part-time Work and on Fixed-Term Contracts as well as the Job-AQTIV-Act, aim at a reduction of the numbers of unemployed and the creation of employment opportunities. This article sketches and briefly comments on the new rules for fixed-term work, temporary and part-time work.
The Treatment of Hate Speech in German Constitutional Law (Part I)
Authors: Brugger Winfried
Published: March 2019

The way legal systems should deal with hate speech is a contested matter. The term “hate speech” itself suggests that it is a form of speech, and speech is generally protected in liberal states. However, this “speech” is either motivated by hatred or expresses hate, and such communication might not rise to the level of discourse that merits constitutional protection at all.
The court as a spectrum regulator: will there be a European analogue to U.S. cases NextWave and GWI?
Authors: Ryan Patrick S.
Published: March 2019

The January, 27, 2003 U.S. Supreme Court decision, FCC v. NextWave was, on the surface, nothing more than the high court's statutory interpretation of a single provision of the Bankruptcy Code. Deep down, however, NextWave tells an important spectrum management and regulatory story which is relevant in both the U.S. and European contexts. It is the story of a company which paid too much for wireless licenses at auction, and a story about a battle – political as well as legal – between government and industry for retention of the license. This same struggle is presently taking place in Europe in the wake of the 3G auctions. This Article reviews the recent NextWave decision and makes propositions about similarities in the European context.
The Lost European Aspirations of U.S. Constitutional Law
Authors: Abernathy Charles F.
Published: March 2019

Most European and American attorneys and judges think the U.S.A. has its legal roots in English common law, and that is probably true for the many areas of U.S. law that are still controlled by the traditional common-law process of simultaneously making and applying law. Yet, with respect to constitutional law – America's greatest legal contribution to modern respect for the rule of law, the roots of the U.S. legal system are firmly planted in Europe, not England. The U.S. Constitution was inspired by French revolutionary ideas of rationalism in law; it was intended as an integrated document just like codes; and it has been interpreted by American judges to be not just a political document but binding law – law that is binding on all three branches of government, legislative, executive, and judiciary. In fact that was the holding in Marbury v. Madison, the case decided exactly two hundred years ago.
The Transfer of Data Abroad by Private Sector Companies: Data Protection Under the German Federal Data Protection Act
Authors: Geiger Jutta
Published: March 2019

Private sector companies face a major challenge in ensuring compliance with the many detailed data protection rules that can apply. The compliance burden is further increased if a business enterprise operates in several countries with different data protection rules. This may complicate the exchange of data within the enterprise. The purpose of this article is to plot a path through these rules governing the transfer of personal data abroad.
Legal Positivism and National Socialism: A Contribution to a Theory of Legal Development
Authors: Rottleuthner Hubert
Published: March 2019

Recent theories of societal development carry a heavy load; they are weighed down by their inheritance from the philosophy of history. Only at the price of a paradoxical forgetfulness can they ignore the fact that there have been predecessors, whose origin and decline, as well as the particular circumstances of their revival, must also be of interest. However, there appears to be a quest for the meaning of life, coupled with an aesthetic requirement to do a kind of elegant violence to historical complexity, which gives rise to such forgetfulness about one's own history. If one has discerned the difficulties with philosophy of history, it is only with considerable irony that one could erect a handsome structure in the form of a theory of development. There are, nevertheless, some lessons from the development of theories of development, which may permit a cautious advance. In what follows I want to attempt such a cautious advance towards a theory of legal development.
Empiricism and Legal Practice
Authors: Gessner Volkmar , Winter Gerd
Published: March 2019

Empirical research had already lost the possibility of a naive claim to objectivity when empirical legal sociology began work in post-war Germany. From the mid-1960s general sociology was involved in the “Positivismusstreit” and was discussing the influence of preconceived interests of perception, commonplace theories and social interaction on empirical observation. Social scientists widely accepted the view that social reality does not exist objectively, but emerges intersubjectively. Science also shapes social reality. For sociology there is nothing which can simply be counted and measured.
Down by Law: Irony, Seriousness, and Reason+
Authors: Frankenberg Gunter
Published: March 2019

Blindfolded Justice never cracks a smile. Laws don't joke around. In Bertolt Brecht's The Caucasian Chalk Circle, People's Judge Azdak instructs us that “the law must always be dispensed with complete seriousness.” “Because it's such a serious matter,” Solomon would have said. “Because it's so stupid,” Azdak explains, “and gone before you know it.”
Beyond Dispute: International Judicial Institutions as Lawmakers
Authors: von Bogdandy Armin , Venzke Ingo
Published: March 2019

The increasing number of international judicial institutions, producing an ever-growing stream of decisions, has been one of the dominant features of the international legal order of the past two decades. The shift in quantity has gone hand in hand with a transformation in quality. Today, it is no longer convincing to only think of international courts in their role of settling disputes. While this function is as relevant as ever, many international judicial institutions have developed a further role in what is often called global governance. Their decisions have effects beyond individual disputes. They exceed the confines of concrete cases and bear on the general legal structures. The practice of international adjudication creates and shifts actors' normative expectations and as such develops legal normativity. Many actors use international judicial decisions in similar ways as they do formal sources of international law. To us, this role of international adjudication beyond the individual dispute is beyond dispute.
The Making of aLex Sportivaby the Court of Arbitration for Sport
Authors: Casini Lorenzo
Published: March 2019

“Sports law is not just international; it is nongovernmental as well, and this differentiates it from all other forms of law.” Sports rules are genuine “global law” because they are applied across the entire world, they involve both international and domestic levels, and they directly affect individuals: This happens, for instance, in the case of the Olympic Charter, a private act of a “constitutional nature” with which all States comply, or in the case of the World Anti-Doping Code, a document that provides the framework for the harmonization of anti-doping policies, rules, and regulations within sports organizations and among public authorities.
The Global Administrative Order Through a German Lens: Perception and Influence of Legal Structures of Global Governance in Germany
Authors: Dann Philipp , Engelhardt Marie v.
Published: March 2019

This article examines to what extent and how German administrative law and organisation have been changed by globalization, as well as the increasing reach and depth of global governance. A first chapter analyzes the legal discourse in Germany and finds that international (more than global) administrative law has become a major topic. It points to three different strands in German scholarship and highlights especially the proposal to conceptualize global governance as an exercise of international public authority. In a second step, the article examines three specific fields of law (environment, health and financial services) and analyzes how national administrative and legal structures have been influenced by globalization. In particular, it inquires what instruments of standard setting and forms of implementation have been used. Finally, the article acknowledges that globalization has had a tremendous effect on German administrative law, and describes seven instrumental and substantive modes of the effect of international rules on the German legal order.
International Trade, Extraterritorial Power, and Global Constitutionalism: A Perspective from Constitutional Pluralism
Authors: Davies Gareth
Published: March 2019

This Article starts from two premises. The first is that power—particularly regulatory power—is increasingly exercised across and between jurisdictions, in particular as a result of the intertwining of economies via trade. The well-being of those involved in the production and trade in goods and services is determined by rules made in multiple jurisdictions, not just their own. Concern about the environmental and social impact of economic activity is a particular reason for jurisdictions to try and impose norms upon each other. The second premise is that the essence of constitutionalism is constitutional values and principles rather than particular institutional forms. Such forms are contingent and instrumental, in the service of the values and principles. Many of those constitutional values and principles are concerned with the exercise of power (e.g., accountability, due process, and non-oppression).
‘In a Settled Country, Everyone Must Eat’: Four Questions About Transnational Private Regulation, Migration, and Migrant Work
Authors: Bhatia Amar
Published: March 2019

First, I would like to acknowledge where this paper was presented and where the work of revising it into an article took place. I would like to acknowledge the territory, which is not just Toronto, Ontario, Canada, but also Tkaronto, a Mohawk or Kaniekehaka word (as are Ontario and Canada). This word is from one of the languages of the Six Nations that comprise the Haudenosaunee Confederacy (People of the Longhouse), perhaps better known in this symposium by the French colonial name of Iroquois. Toronto and its surrounding territory are traditionally of the Huron-Wendat people, the Seneca Nation of the Haudenosaunee, and with title most recently lying with the Mississaugas of New Credit (Anishinabe). I would like to acknowledge the territory and thank these hosts, as well as the conference organizers for their generous invitation to participate in these discussions on transnational private regulation (TPR).
Beyond Taxonomies of Private Authority in Transnational Regulation*
Authors: Scott Colin
Published: March 2019

The emergence of private actors in setting standards and sometimes contributing to monitoring and enforcement functions is a key feature of contemporary transnational regulation. Transnational private regulation fills significant gaps in governmental and intergovernmental capacity, offering the potential of public goods which both provide some coordination for global markets and address some of the externalities associated with globalization such as environmental degradation and exploitation of workers.
Making Corporations Environmentally Sustainable: The Limits of
Responsible Investing
Authors: Henderson Gail E.
Published: March 2019

Almost weekly, it seems, my inbox fills with dozens of academic articles on
the topic of “socially responsible investing” or “SRI”. Non-profit
organizations across Europe and North America promote SRI as the new
investment industry standard. Business schools now offer certificate
programs in “sustainable investment”. In 2006, the UN launched the
Principles for Responsible Investment (PRI) to provide a framework for
investors interested in practicing responsible investing. The PRI now boast
over 1,000 signatories, including asset owners and investment managers.
The European Influence on German Anti-Terrorism Law
Authors: Petzsche Anneke
Published: March 2019

The international context plays a role in the fight against terrorism that is not to be underestimated. On the one hand, international law poses legal obligations that lead and limit the national legislator in his actions. On the other hand, it has become clear that terrorism nowadays is an international problem that concerns not only individual states but the whole international community. The states have recognized that in order to counter the terrorist threat, an approach only on the national level cannot suffice. As a result, the fight against terrorism has shifted increasingly to the international and supranational level. For Germany the European influence is of particular importance. Therefore, the assessment of the European Commission regarding the handling of terrorist threats gains relevance:

Modern terrorism is eminently global. The dissemination of propaganda aiming at mobilization and recruitment as well as instructions and online manuals intended for training or planning of attacks via the Internet have an intrinsic international and cross-border character. The threat is international, and so must be at least part of the answer.”
Toward a Network-Oriented Law of the Internet! The Necessity to Find a New Balance between Risk and Opportunity in Network Communication
Authors: Ladeur Karl-Heinz
Published: March 2019

This article looks at the reasons for the lack of a discussion on “network oriented” media and internet law. The Internet has fundamentally changed the conditions of communication. It has broken down or undermined all borders between formats, individual and mass communication, communication content, and technologies of telecommunication. As a “network of networks,” it is also a challenge for the legal system which has linked its conceptions and doctrine to those separations and borderlines.
Review Essay– David Singh Grewal's Network Power: The Social Dynamics of Globalization (2008)
Authors: Wong Tiffany
Published: March 2019

Networks have been discussed extensively in different ways within social and cultural theory as well as in economic scholarship. Author ofNetwork Power, David Singh Grewal, participates in a popular discourse by describing globalization as a series of networks of power in contemporary society. In the same year that his book was published, Grewal writes a response to these theories of a globalized “flat” society in an article for the UK newspaper,The Guardian.Entitled “The World Isn't Flat – It's Networked,” the preface reads: “Globalisation does not 'flatten opportunity in the world: rather it forces everyone to conform to an underlying standard, specifically that of the already privileged nation.” A young scholar, Grewal holds a J.D. from Yale Law School and is currently Ph.D. student at the Department of Government at Harvard University.
Remarks at the Opening of the Symposium Celebrating the 10th Anniversary of the German Law Journal – The German Law Journal as “Lived” Comparative Law
Authors: Miller Russell A.
Published: March 2019

It is proper that we have come to Berlin to celebrate this remarkable transatlantic enterprise. It is true that the German Law Journal was born in Karlsruhe and that it emerged in its current form – as an online, monthly, peer-reviewed, English-language forum for commentary on developments in German, European and International law – at the University of Frankfurt. But one advantage of Internet publishing is the detailed information editors can gather on their readers, including the almost absurd statistic that tracks the frequency with which the German Law Journal website is accessed from each of Germany's Postleitzahl districts. Berlin is the right place for this event because we know from that data that the largest block of our German readers, by far, is based here in the German capital.
Transnationalizing Public Law
Authors: Wuerth Ingrid
Published: March 2019

Many warm thanks for the opportunity to participate in this seminar honoring the German Law Journal. I am especially pleased to be addressing you here at the Free University, which generously hosted my stays in Berlin as both a Humboldt and a Fulbright Scholar.
Party Autonomy in the Brussels I Regulation and Rome I Regulation and the European Court of Justice
Authors: Kuipers Jan-Jaap
Published: March 2019

The relationship between Community law and Private International Law (PIL) did not have an easy start. The original EEC Treaty merely made one reference to PIL. The notable exception was the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (1968), an international convention concluded on the basis of art. 220 EEC (293 EC). The Rome Convention on the Law Applicable to Contractual Obligations (1980) did not even have an explicit legal basis. After the adoption of the Rome Convention it remained relatively silent on the Community level. It did not help that due to the status of international convention the European Court of Justice (ECJ) was deprived of any power of interpretation. The problem was resolved in two separate protocols. The protocol on the Brussels Convention entered into force in 1975 and the protocol on the Rome Convention only entered into force in 2004. Whereas there has been a substantial amount of case-law on the Brussels Convention, the ECJ only delivered its first judgment on the Rome Convention in October 2009.
Constitutional Review by the Judiciary in the Netherlands: A Bridge Too Far?
Authors: van der Schyff Gerhard
Published: March 2019

One could be forgiven for thinking that constitutional review by the judiciary is invariably part of modern constitutionalism. Gone are the days that constitutions contained provisions that prevented the courts from testing the constitutionality of legislation, such as section 59 of South Africa's now repealed Constitution of 1961 that forbade the courts from inquiring into or pronouncing on the validity of legislation. It has come to be accepted in many quarters that a constitution presupposes judicial review in some form or another in gauging the integrity of legislation, instead of only relying on legislative wisdom as before. An attitude that echoes the views expressed inMarbury v. Madisonby Chief Justice Marshall of the United States Supreme Court, that by its very nature a written constitution implies judicial control. However, the Constitution of the Netherlands proves to be an exception in this regard, as section 120 states emphatically that:

The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts.
Applying Kosovo: Looking to Russia, China, Spain and Beyond After the International Court of Justice Opinion on Unilateral Declarations of Independence
Authors: Jamar Hanna , Vigness Mary Katherine
Published: March 2019

When the International Court of Justice (ICJ) released its advisory opinion regarding the legality of Kosovo's unilateral declaration of independence (UDI) on 22 July 2010, Serbia was not the only State to express its dissatisfaction with the outcome. The broader significance of the ICJ's finding that Kosovo's UDI in 2008 did not violate international law has profound relevance for other States. The United States and its allies claim that Kosovo's situation is unique and does not serve as precedent, but other nations facing separatist movements within their own borders may have reason to be concerned.
The Limits of Freedom of Expression in the Wunsiedel Decision of the German Federal Constitutional Court
Authors: Payandeh Mehrdad
Published: March 2019

On 4 November 2009, the First Senate of the German Federal Constitutional Court (Bundesverfassungsgericht) handed down its decision in the Wunsiedel case. In this decision, the Court held that § 130(4) of the Criminal Code does not violate the fundamental right of freedom of expression as it is protected by Article 5 of the Basic Law. § 130(4) of the Criminal Code—in concordance with § 15(1) of the Assembly Act— provides the legal basis for prohibiting certain National Socialist assemblies, particularly those taking place on dates and at locations with a high symbolic meaning for supporters of National Socialism. Therefore, the decision is of the highest importance for the fight against neo-Nazism and other supporters of National Socialist ideologies. Beyond this specific context, the decision has a significant impact on the doctrine of freedom of expression in general.
Communicating with the European Composite Administration
Authors: Reichel Jane
Published: March 2019

One of the reasons for introducing a “Union” citizenship in the 1993 Maastricht Treaty was to provide a direct channel between the citizens of the Member States and the EU. In contrast to many other international organizations, the role of the individual has been central to the European project since its inception. In its famous 1962 judgment given inVan Gend en Loos,1 the Court of Justice of the European Union (CJEU) underscored the importance of the “vigilance of individuals concerned” seeking to protect their European rights in the new legal order through judicial control.2 The right to directly vote on the representatives of the European Parliament had already been introduced in the 1970s. The citizens of the Member States were thus equipped with two classic forms of political participation even prior to the introduction of Union citizenship: law making and the legal adjudication of individual cases. Nonetheless, whether these channels are sufficient to guarantee the citizens effective democratic means to influence legislation and exercise control of EU institutions in the rather complex multilevel legal system of the EU has been continuously debated.
Austerity and European Social Rights: How Can Courts Protect Europe's Lost Generation?
Authors: Poulou Anastasia
Published: March 2019

The European financial crisis has called many of the assumptions of the constitutional structure of the European Union (EU) into question. The market-based model of the European Monetary Union (EMU) led to an improper assessment of the borrowing capacity of the euro-area Member States and a mispricing of their default risk. Another design flaw of the EMU that has been exposed by the crisis was the weakness of the existing framework for economic policy coordination. The factual interdependence of the participating economies in the monetary union was so strong that the denial of some form of assistance to the debt-distressed countries triggered a domino effect in the Eurozone as a whole. The quest for instruments to address the sovereign debt crisis brought a European constitutional crisis to the forefront: the EU did not possess the appropriate mechanisms to help the states in need and to guarantee financial stability in the EMU.
What's in a Name Case? Some Lessons for the Debate Over the Free Movement of Same-Sex Couples Within the EU
Authors: van den Brink Martijn
Published: March 2019

This Article engages the debate over the free movement of same-sex couples and explores what can, and should, be learned from the case law on the recognition of names. These “name cases” provide valuable lessons for both the proponents and opponents of same-sex marriage recognition. These cases show, first, that Member States are under the presumption to recognize marriages performed in other Member States. This Article also considers the importance of the national and constitutional identities of the Member States and suggests that there remains a possibility that Member States may justify the non-recognition of a marriage or deprive same-sex couples of some of the rights heterosexual married couples benefit from. The Article explores how the EU is confronted with a federal clash of values and offers some suggestions on how to solve this clash.
Direct Cooperation Has Begun: Some Remarks on the Judgment of the ECJ on the OMT Decision of the ECB in Response to the German Federal Constitutional Court's First Request for a Preliminary Ruling
Authors: Simon Sven
Published: March 2019

By its first request for a preliminary ruling, the German Constitutional Court aired its doubts about the lawfulness of the Outright Monetary Transactions (OMTs) program. In this article it is argued that the ECB's pledge in the summer of 2012 to do “whatever it takes” to safeguard the monetary policy transmission mechanism in all countries of the euro area by buying government bonds was generally compatible with EU law. However, it is argued that there is some potential for the ECB to infringe the Treaty on the Functioning of the European Union (TFEU) while acting according to this announcement. The peculiarity of the situation, the author argues, is that we might be dealing with a “self-fulfilling prophecy” in that the ECB announces a particular policy, which might not be compatible with EU law, but the act announced, will never take place because the political problem would have been resolved by the measure previously announced. The critical question in this scenario refers to how a court should react to such a situation. The author argues that a court in such a situation has to show the legal limits of the particular institution, but neither the ECJ nor the German Constitutional Court may replace the central banks' task to maintain financial stability. Finally, a comment is given on how the German Constitutional Court will react to the ECJ's decision in that case.
Which role for theory in international law? Report on the Workshop “Kelsen — Schmitt — Arendt: Constitutionalism in (International) Law”, Leipzig, June 11/12, 2009
Authors: Ley Isabelle
Published: March 2019

Law is a discipline which allows us to combine a high level of doctrinal craftsmanship with an equally high level of theoretical reflection and (re-)construction of legal-political developments. For the academic scholar, law is practice, theory and doctrine, each requiring a distinct set of goals, a distinct set of methods and a distinct level of abstraction. For some time, the international legal discipline has been described as lacking in theoretical development. This consideration may have motivated the conveners of a Kelsen-Schmitt-Arendt conference series when they decided that it was time for a re-engagement with the theories of Kelsen, Schmitt, and Arendt. The first workshop on constitutionalism will be the object of this commentary.

Kelsen, Schmitt and Arendt have experienced unexpected and innovative reception in recent years: Schmitt has contributed to questions such as the problematic role of human rights, the institutionalization of politics as conflict, as well as new applications of the state of exception. Kelsen's international writings as well as his democratic theory have borne a fruitful re-reading, and Arendt, who has been widely read, and written about in the social sciences for several years, has finally reached the law faculties.

The primary interest of this comment lies in the question of how international legal scientific work can make use of legal and political theory. A whole range of politico-legal developments in the European and international arenas are currently creating new forms of institutions, obligations, and types of engagement between legal orders. The velocity and the diversity of these developments are challenging traditional frameworks, paradigms, and analytical tools of the discipline. This task of conceptualization asks for and lends itself to theorization. Which approaches to theory are available for legal scholars, and what kind of insights do they offer? The conference offered the chance to witness different examples of how theory can be accessed. What role is there for theory in international law and what is its potential?
Introduction - Ruptures in International Law
Authors: de la Rasilla Y del Moral Ignacio
Published: March 2019

The papers gathered under this special issue draw on presentations from the International Legal Theory Workshop under the auspices of the 4th Conference of the European Society of International Law, which was held at Cambridge University in September 2010. The essays cover some key developments in international law since the fall of the Berlin Wall. In the pages that follow, you will find an examination of the rise of the notion of ‘harmonious society’ in China as well as an insightful analysis of how this concept can influence international law; a detailed study of the regime of responsibility of international organizations that has gained momentum in the wake of the proliferation of international organization since 1989; a proposal for a fiduciary theory of international human rights, conceived as an alternative model to post-9/11, interest-balancing approaches in the field of national security law; and a reflection on the endurance of the notion of rogue states and state-criminalizing approaches to international relations, beyond the confines of the Bush doctrine. These essays are started off by two papers that address, from different angles, the current state of theorizing of international law.
The Desirability of ‘Weak’ Form Legal Harmonization: Perspectives from Statutory Interpretation and Legal Coherence
Authors: Humphery-Jenner Mark
Published: March 2019

Harmonized regulatory frameworks have become increasingly important. This is especially so following the global financial crisis, where there have been calls for a harmonized international response to securities regulation. Examples in the EU include MIFID and the Takeover Directive. MIFID regulates securities traders and stock exchanges. It contains rules that indicate the obligations on exchanges and traders vis-à-vis matters such as achieving the “best execution” of trades. The Takeover Directive regulates mergers and acquisitions, their regulations include regulations on anti-takeover provisions, compulsory acquisitions, and the method of paying for acquisitions. These impose a ‘weak’ form of harmonization: member states can opt out of some provisions, many provisions are vague (and require definition by domestic regulators) and member states retain the right to legislate around the harmonized framework. These directives have not received universal support.
The Doctrine of Equivalent Protection: Its Life and Legitimacy Before and After the European Union's Accession to the European Convention on Human Rights
Authors: De Hert Paul , Korenica Fisnik
Published: March 2019

The relationship between the Court of Justice of the European Union (henceforth: Luxembourg Court) and the European Court of Human Rights (henceforth: Strasbourg Court) has been one of the prevailing issues in the human rights debate in Europe. The main crater in the relationship between the two courts is the fact that Strasbourg could not call directly into responsibility the Luxembourg Court due to the fact that EU is not a party in the ECHR, whereas the Luxembourg Court is not likely to obey a Strasbourg ruling without having any international legal obligation to do so. This situation has thus far led to many observations that have called for the accession of the EU to the ECHR, a step that would legalize the relationship between the EU and the Council of Europe, offering critics of human rights an assurance that the EU's human rights regime will become externally controlled by a specialized human rights court.
Introduction: The Crisis in Ukraine Between the Law, Power, and Principle
Authors: Oklopcic Zoran
Published: March 2019

This special issue ofGerman Law Journal(GLJ) originates from a colloquium co-sponsored by theGLJ, the Miller Institute for Global Challenges and the Law, and the Center for Constitutional Transitions that took place at the Berkeley School of Law in February 2015, just over a year after the revolutionary events at Maidan Square in Kiev triggered profound changes in the geopolitical map of contemporary Europe and shook the foundations of international order.

Beyond the gravity of the crisis itself, what animates the contributions in the following pages is an attendant awareness of the need to rethink the appropriateness of disciplinary responses to the conflict in Ukraine. Though the rhetoric of brazen takeovers, cynical ploys, stealing and redeeming, chronic authoritarianism and imperialism, hypocrisy, and broken promises have all contributed to a combustible political situation in and around Ukraine, a diverse sense of outrage has also been subtly, but nonetheless decisively, structured and amplified by the vocabularies of international and constitutional law, moral arguments, and their complicated interplay. Though differing in their practical ambitions, technical vocabulary, and the professional sensibilities they cultivate, the disciplines of international law, comparative constitutional law, and normative political theory, have each upheld one of the most important components of the modern social imaginary: The idea of popular sovereignty.

The idea that the will of the people ought to be a decisive factor in resolving the crisis in Ukraine continues to unite most commentators, partisans, and scholars, irrespective of their otherwise profound ideological and political differences. From the perspective of overarching social imaginary, the ominous geopolitical crisis in Ukraine, while dangerous in its potential outcomes, appears as a family quarrel among the believers of the constitutional creed of western political modernity. Unlike another geopolitical crisis of our time—the attempts of ISIS to redraw the map of the Middle East—the situation in Ukraine is not a conflict over theexistenceof international legal order, but rather one over themeaningof its foundational building blocks: The internal and external self-determination of peoples, territorial integrity, and the sovereign equality of independent states.
Anti-Money Laundering Measures Versus European Union Fundamental Freedoms and Human Rights in the Recent Jurisprudence of the European Court of Human Rights and the European Court of Justice
Authors: De Vido Sara
Published: March 2019

This article will evaluate whether, and to what extent, preventive measures in the fight against money laundering may limit fundamental freedoms and human rights within the European Union (“EU”). It will analyze two judgments rendered by the European Court of Justice (“ECJ”) and one judgment rendered by the European Court of Human Rights (“ECtHR”). In these three cases, the courts were asked to investigate the compatibility of specific Anti-Money Laundering (“AML”) preventive measures with the freedom to provide services enshrined in the Treaty on the Functioning of the European Union (“TFEU”) and human rights. Considering the gravity of the phenomenon, AML measures have gradually emerged as a “European general interest.” The Fourth EU Anti-Money Laundering Directive, which has been recently adopted, displays this compelling need.
The Prospective Role of Constitutional Courts in the Advisory Opinion Mechanism Before the European Court of Human Rights: A First Comparative Assessment with the European Union and the Inter-American System
Authors: Dicosola Maria , Fasone Cristina , Spigno Irene
Published: March 2019

On 2 October 2013, Protocol No. 16 to the European Convention on Human Rights (ECHR) was opened for signature by the Member States of the Council of Europe (CoE). The protocol, that has so far been signed by sixteen States and ratified by Albania, Georgia, Lithuania, San Marino and Slovenia, will enter into force in case of ratification by at least ten Member States. If the protocol becomes effective, it will expand the European Court of Human Rights’ competence to give advisory opinions upon request by domestic high courts and tribunals.
Preliminary Reference and Dialogue Between Courts as Tools for Reflection on the EU System of Multilevel Protection of Rights: The Case of theData Retention Directive
Authors: Benedizione Ludovica , Paris Eleonora
Published: March 2019

The aim of this Article is to analyze the peculiar jurisdictional reaction that originated at the level of both the European Union (EU) and the Member States following the introduction, on 15 March 2006, of Directive 2006/24/EC of the European Parliament and the Council, “on the retention of data generated or processed in connection with the provision of publicly available electronic communication services or of public communication networks.”
Revolutionary Constitutional Lawmaking in Germany—Rediscovering the German 1989 Revolution
Authors: Jaggi Stephan
Published: March 2019

Today, the 1989 Revolution in East Germany is recognized and celebrated as the event that abolished the German Democratic Republic (GDR) and brought about German unification. What is mostly overlooked, however, is that these are not the Revolution's only and, from the perspective of constitutional law, not even its most important achievements. More important with respect to understanding constitutional lawmaking in Germany is that the 1989 Revolution did not lead to an unconditional adoption of West German constitutional law in the new East German states. Instead, the Revolution had its own constitutional agenda, which went beyond the West German Basic Law and was transferred to unified Germany where it then needed to be integrated into the existing West German constitutional order. The Article reinterprets the 1989 Revolution and shows how a revolutionary popular movement in the GDR developed its own constitutional agenda, which first found legal manifestation in GDR legislation, and then was transferred to unified Germany through the Unification Treaty and the new state constitutions.
Article 13(2) TEU: Institutional Balance, Sincere Co-Operation, and Non-Domination During Lawmaking?
Authors: Yuratich David
Published: March 2019

This Article assesses the extent to which Article 13(2) TEU supports a republican reading of the EU's institutional structure. This question has arisen in light of the move towards more intergovernmental forms of economic governance following the Eurozone Crisis. Dawson and de Witte and Bellamy have critiqued this mutation through theory-driven readings the institutional balance clause of Article 13(2) TEU, arguing that it establishes a norm of non-domination between EU institutions that has been undermined by increased intergovernmentalism. This Article considers whether the institutional balance case law supports their reading. It finds that institutional balance's dominant role is not normative: It protects pre-existing institutional competences. It does carry a normative side when used as a general principle of EU law to support arguments about increasing the European Parliament's legislative contributions, but this is not an independent head of claim. A better legal support for the presence of a non-domination in Article 13(2) lies within its second clause, the principle of sincere cooperation. Ultimately, the case law around both clauses of Article 13(2) TEU means that the provision is best understood as having a tripartite structure providing a constitutional basis for non-domination during lawmaking.
“Just Business” – Is the Current Regulatory Framework an Adequate Solution to Human Rights Abuses by Transnational Corporations?
Authors: Santoso Benny
Published: March 2019

Parallel to exponential proliferation and ever-increasing allegations of human rights violations by transnational corporations, the sparks produced by the friction between the normatively distinct disciplines of business and human rights have invited scrutiny across the media, academia, and industries alike. Given the fact that regulatory capacities of home and host states have evidenced an inability to keep pace with the developments, concerted efforts at the international level are imperative. By constructing its own benchmark of adequacy with reference to regulatory instruments' underlying objectives, this Article explores whether the existing regulatory framework is adequate, with a particular focus on the UN Framework and UN Guiding Principles—currently the most robust regime yet. The Article's analysis centers on (1) the terminologies utilized, (2) the human rights due diligence mechanism, and (3) access to remedies requirements, to reveal their inherent inadequacy with the hope of warning against uncritical acceptance and to inform future developments.