European Journal of Legal Studies. Volume 12, issue 1, spring 2020.
Date: 2023-01-27
Institutions: European University Institute
Subjects: EU policy, animal welfare, armed forces, artificial intelligence, automation, legislation, migration, rule of law

Volume 12 
Issue 1 
Spring 2020 

EDITORIAL 

Anna Krisztián 
Some Thoughts on the (Un)sustainability of Academic  
Publishing 

GENERAL ARTICLES 

Riikka Koulu 
Human Control over Automation: EU Policy and AI Ethics 

Luca Leone 
Farm Animal Welfare under Scrutiny: Issues Unsolved by the  
EU Legislator 

Matteo Frau and Elisa Tira 
PESCO and the Prospect of a European Army: The  
'Constitutional Need' to Provide for a Power of Control of the 
European Parliament on Military Interventions   

Michael Ovádek, Wessel Wijtvliet and Monika Glavina  
Which Courts Matter Most? Measuring Importance in the EU 
Preliminary Reference System 

Alexandros Demetriades 
Reconceptualising Extraterritoriality under the ECHR as 
Concurrent Responsibility: The Case for a Principled and  
Tailored Approach 

Pierfrancesco Rossi 
The Role of National Courts for the International Rule of Law: 
Insights from the Field of Migration 

1 

9 

47 

85 

121 

157 

195 

BOOK REVIEWS 

Olga Ceran 
Rob van Gestel and Andreas Lienhard (eds), Evaluating Academic 
Legal Research in Europe: The Advantage of Lagging Behind 
(Edward Elgar 2019) 

231 

Kerttuli Lingenfelter 
Rostam J. Neuwirth, Law in the Time of Oxymora: A  
Synaethesia of Language, Logic and Law (Routledge 2018) 

241 

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Editorial Board 
Editor-in-Chief 
Managing Editors 
Executive Editors 
Heads of Section 

Senior Editors 

Junior Editors 

Senior External Editors 

Anna Krisztián 
Olga Ceran, Sunita Tripathy 
Timothy Jacob-Owens, Lene Korseberg 
Léon Edward Dijkman (European Law) 
Nastazja Potocka-Sionek (Comparative Law) 
Yussef Al Tamimi (Legal Theory) 
Mike Videler (International Law) 
Grigorios Bacharis, Marcin Barański, Kayahan Cantekin, Elias 
Deutscher, Alexandre Ruiz Feases, Théo Fournier, Oliver Garner, 
Tarik Gherbaoui, Arpitha Upendra Kodiveri, Galyna 
Kostiukevych, Jaka Kukavica, Gonzalo Larrea, Svitlana Lebedenko, 
Rūta Liepiņa, Stavros Makris, Thibault Martinelli, Sergii Masol, 
Margherita Melillo, Matilda Merenmies, Rebecca Mignot-
Mahdavi, George Papaconstantinou, Promitheas Peridis, Ricardo 
Rodrigues de Oliveira, Zeynep Şimşek, Janneke van Casteren, Nico 
Weber, Raphaële Xenidis, Mikaella Yiatrou 
Niall Coghlan, Emily Cunniffe, Theodora Kostoula, Kerttuli 
Lingenfelter, Lucía López Zurita, Helga Molbæk-Steensig, Ian J. 
Murray, Max Münchmeyer, Julian Scholtes, Marc Steiert, Sarah Tas 
Edwin Alblas, Lucila Almeida, Jacinta Asarfi, Annemarie Balvert, 
Ieva Bloma, Birte Böök, Filipe Brito Bastos, Federica Coppola, 
Stephen Coutts, François Delerue, Chiara Destri, Kasper 
Drazewski, Fabrizio Esposito, Giuliana Giuliani, Maria Haag, 
Maria José Recalde Vela, Gerrit Krol, Carl Lewis, Afroditi-Ioanna 
Marketou, Madalena Narciso, Ileana Nicolau, Emma Nyhan, Irene 
Otero Fernández, Argyri Panezi, Stavros Pantazopoulos, Chloé 
Papazian, Luigi Pedreschi, Christy Petit, Leticia Diez Sanchez, 
Theodosia Stavroulaki, Marita Szreder, Mikhel Timmerman, 
Zeynep Timocin Cantekin, Vegard Tørstad, Martijn van de Brink, 
Viorica Vita, Jan Zglinski 

Departmental Advisory Board 
Deirdre Curtin, Martijn Hesselink, Urška Šadl, Martin Scheinin 

Website: www.ejls.eui.eu 

Submissions 
The European Journal of Legal Studies invites submissions from professors, practitioners, and 
students. In particular, we welcome articles demonstrating a comparative, contextual and 
interdisciplinary approach to legal scholarship.  
Articles should be submitted in electronic format to Submissions.EJLS@EUI.eu.  
If electronic submission is not practicable, please send a hard copy to: 

Editor-in-Chief 
European Journal of Legal Studies 
Villa Salviati, Via Bolognese 156  
50139 Firenze, Italy 

The name of the author and contact details should appear only on a separate cover sheet to 
facilitate objective, anonymous evaluation. The Journal is committed to multilingualism and 
accepts submissions in any European language within the competence of the Board. 

Published 29 April 2020
Catalogue no.: QM-AZ-20-001-EN-N
ISSN: 1973-2937

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
European Journal of Legal Studies 
Vol. 12 No. 1 (Spring 2020) 

TABLE OF CONTENTS 

EDITORIAL 

Anna Krisztián 
Some Thoughts on the (Un)sustaintability of Academic  
Publishing 

GENERAL ARTICLES 

Riikka Koulu 
Human Control over Automation: EU Policy and AI Ethics 

Luca Leone 
Farm Animal Welfare under Scrutiny: Issues Unsolved by the  
EU Legislator 

Matteo Frau and Elisa Tira 
PESCO and the Prospect of a European Army: The  
'Constitutional Need' to Provide for a Power of Control of the 
European Parliament on Military Interventions   

Michael Ovádek, Wessel Wijtvliet and Monika Glavina  
Which Courts Matter Most? Measuring Importance in the EU 
Preliminary Reference System 

Alexandros Demetriades 
Reconceptualising Extraterritoriality under the ECHR as 
Concurrent Responsibility: The Case for a Principled and  
Tailored Approach 

Pierfrancesco Rossi 
The Role of National Courts for the International Rule of Law: 
Insights from the Field of Migration 

BOOK REVIEWS 

Olga Ceran 
Rob van Gestel and Andreas Lienhard (eds), Evaluating  
Academic Legal Research in Europe: The Advantage of Lagging 
Behind (Edward Elgar 2019) 

Kerttuli Lingenfelter 
Rostam J. Neuwirth, Law in the Time of Oxymora: A  
Synaethesia of Language, Logic and Law (Routledge 2018) 

1 

9 

47 

85 

121 

157 

195 

231 

241 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EDITORIAL 

SOME THOUGHTS ON THE (UN)SUSTAINABILITY OF ACADEMIC 
PUBLISHING 

Anna Krisztian* 

In early February 2020, disturbing news swept across the academic world like 
a shockwave. A few days earlier the Editorial and Advisory Boards of a highly 
respected journal in the field of European law resigned  en masse in protest 
against a reported infringement of the journal’s academic independence by 
the  publishing  house  behind  the  periodical.1  The  (now  former)  Editors-in-
Chief  of  the  said  journal  –  who,  like  a  number  of  other  members  of  the 
Editorial and Advisory  Boards, both happen to be alumni of the European 
University  Institute  (EUI)  –  explain  in  the  blogpost  cited  above  how  they 
consider  certain  actions  of  their  publisher  to  have  been  detrimental  to 
academic  freedom  and  thus  intolerable  for  any  self-respecting  academic 
community. 

This is not the first time such a mass walkout was staged by the editorial board 
of  an  academic  journal  following  rows  with  their  commercial  publishers.2 
Tension between editors of (certain) journals and their publishers has been a 
prominent  issue  in  the  recent  past.  And  yet,  the  reaction  of  the  broader 

* 

1 

2 

Editor-in-Chief of the European Journal of Legal Studies and Ph.D. candidate at 
the Law Department of the European University Institute (Florence, Italy). 
'What  a  Journal  Makes:  As  We  Say  Goodbye  to  the  European  Law  Journal  – 
European  Law  Blog'  <https://europeanlawblog.eu/2020/02/04/what-a-journal-
makes-as-we-say-goodbye-to-the-european-law-journal/>  accessed  4  February 
2020. 
'Journal  Editor  Hopes  Mass  Walkout  Quickens  Open  Access  Progress'  (Times 
Higher 
2019) 
(THE), 
<https://www.timeshighereducation.com/news/journal-editor-hopes-mass-
walkout-quickens-open-access-progress> accessed 18 February 2020. 

Education 

January 

19 

EJLS 12(1), April 2020, 1-7 

doi:10.2924/EJLS.2019.018 

 
 
 
 
2 

European Journal of Legal Studies  

{Vol. 12 No. 1 

academic  community  to  this  mass  resignation  in  the  online  sphere  was 
powerful,  swift,  and  overwhelmingly  supportive.  Individual  scholars3  and 
representatives of other journals4 alike quickly expressed their sympathy and 
extended their support to the affected editors via various digital platforms, 
triggering discussions about questions of the de jure and de facto ownership of 
academic  journals,  and  about  the  (un)sustainability  of  current  models  of 
academic publishing more generally. 

With  much  of  the  invaluable  global  research  output  being  locked  away 
behind paywalls and inaccessible for much of academia and society at large, 
pressure  to  publish  open  access  is  now  coming  from  all  corners  of  the 
academic  world,  including  not  only  authors  in  favour  of  open  access 
publishing,  but  also  libraries,  university  boards,  funding  bodies  and 
governments.  Yet,  the  presence  of  stakeholders  with  competing  interests, 
such as commercial publishers and scholars opposing the idea of open access 
publishing – who also themselves contribute to the kaleidoscope of academic 
publishing – offers no easy solution to this conundrum.5 The emergence of 
disruptive technologies in this field further complicates the picture, raising 
questions beyond the realm of academic publishing in the strict sense.6  

3 

'Mass Resignations at Wiley Journal over Academic Independence' (Times Higher 
2020) 
7 
Education 
<https://www.timeshighereducation.com/news/mass-resignations-wiley-journal-
over-academic-independence> accessed 18 February 2020. 

February 

(THE), 

4  Weiler, Joseph H.H.; de Búrca,  Gráinne,  'Wiley and the European Law Journal' 
<https://verfassungsblog.de/wiley-and-the-european-law-
(Verfassungsblog) 
journal/> accessed 5 February 2020. Comments - 'What a Journal Makes: As we say 
goodbye 
(Verfassungsblog) 
<https://verfassungsblog.de/what-a-journal-makes-as-we-say-goodbye-to-the-
european-law-journal/>  accessed  19  February  2020.  'European  Law  Journal' 
(European 
<http://www.europeanpapers.eu/en/authors/european-law-
Papers) 
journal> accessed 5 February 2020. 

European 

Journal' 

Law 

the 

to 

5  Marcus Düwell, 'Editorial: Open Science and Ethics' (2019) 22 Ethical Theory and 

6 

Moral Practice 1051. 
'A  Librarian  Perspective  on  Sci-Hub:  The  True  Solution  to  the  Scholarly 
Communication  Crisis  Is  in  the  Hands  of  the  Academic  Community,  Not 

 
 
2020} 

Editorial 

3 

In  2007,  when  the  European  Journal  of  Legal  Studies  was  established,  its 
founders cast their votes in favour of open access, and hence over the past 13 
years  the  Journal  has  contributed  completely  free  of  charge  to  the 
enrichment  of  scholarly  knowledge  with  many  excellent  articles  written  in 
the  areas  of  European  law,  international  law,  comparative  law  and  legal 
theory.  'Completely  free  of  charge',  that  is,  without  imposing  article 
processing charges (APC), subscription fees or any other publication fees on 
authors,  readers  or  institutions.  This  does  not  mean,  however,  that  the 
production of the EJLS happens at zero total cost. Quite the contrary: the 
EJLS  has  since  its  establishment  relied  on  the  commitment  and  zeal  of 
generations of EUI researchers, who have, either as reviewers or managers of 
the Journal, dedicated tens of thousands of hours to making the functioning 
of the EJLS possible. Their efforts have continuously improved the Journal’s 
reputation and, I believe, enhanced our authors' publishing experience.  

Peer review conducted on a voluntary basis is of course a widespread practice 
in academic publishing and by no means unique to EJLS. The message I am 
merely trying to convey is that every single editor of the Editorial Board and 
the Executive Board of the EJLS deserves recognition for their hard work. 
Therefore, once again, in my capacity as Editor-in-Chief, I thank you all for 
your  continued  efforts  and  for  making  the  EJLS  a  wonderful  academic 
enterprise!  There 
illustration  of  your  round-the-clock 
commitment than at the time of writing of this Editorial, when the Republic 
of  Italy,  similarly  to  other  countries  affected  by  the  Coronavirus  disease 
(COVID-19)  pandemic,7  is  under  national  lockdown.  With  academic 

is  no  better 

of 

2018) 

Social 

(Impact 

Sciences, 

9  November 

Librarians' 
<https://blogs.lse.ac.uk/impactofsocialsciences/2018/11/09/a-librarian-
perspective-on-sci-hub-the-true-solution-to-the-scholarly-communication-crisis-
is-in-the-hands-of-the-academic-community-not-librarians/> 
20 
February 2020. 
The pandemic has been referred to by different names. At the time of writing, the 
World Health Organisation refers to it as quoted. 'Coronavirus Disease (COVID-
19)  Pandemic'  <https://www.who.int/emergencies/diseases/novel-coronavirus-
2019> accessed 15 March 2020. 

accessed 

7 

 
 
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European Journal of Legal Studies  

{Vol. 12 No. 1 

institutions closed and free movement of persons severely restricted, editors 
and  managers  of  the  EJLS  work  together  remotely  in  order  to  ensure  the 
publication  of  our  Spring  2020  Issue  in  a  timely  manner.  Teamwork  at  its 
best! 

When  it  comes  to  extending  our  gratitude  to  persons  who  make  the 
functioning of the EJLS possible, the invaluable institutional support of the 
European University Institute should not go unrecognised either. Numerous 
organisational  units,  among  them  especially  the  President's  Office,  the 
Library, the Communications Service, and the ICT Service provide excellent 
support  to  the  EJLS  whenever  needed,  which  has  enabled  the  continuous 
professionalisation of the Journal over the years. Admittedly, the EJLS is in a 
privileged position irrespective of the hardships it occasionally faces, and we 
acknowledge that not every law review in the world is fortunate enough to 
enjoy such outstanding institutional support as we do, for which the editors 
of the Journal are immensely grateful.  

Given the engagement of EJLS editors and the institutional support behind 
the Journal, we hope that against all odds we will be able to uphold our open 
access  publishing  policy,  in  whose  value  the  EJLS  Editorial  Board  firmly 
believes. This is notwithstanding the fact that the open access movement has 
also  received  criticism  which,  depending  on  the  discipline,  might  be  well-
founded.8  Considering  the  EJLS'  mission  as  a  law  journal  however,  open 
access remains our preferred solution. Fortunately, there are signs indicating 
that open access journals and publishing houses, at least academic ones, can 
cooperate  in  mutually  beneficial  partnerships.9  Hopefully,  this  marks  the 
dawning of a new era, in which open access publication can be offered as a 
sustainable  model  that  is  truly  beneficial  for  all  stakeholders  involved 

8 

9 

to  Publication' 

'Read-and-Publish  Open  Access  Deals  Are  Heightening  Global  Inequalities  in 
Access 
(Impact  of  Social  Sciences,  21  February  2020) 
<https://blogs.lse.ac.uk/impactofsocialsciences/2020/02/21/read-and-publish-
open-access-deals-are-heightening-global-inequalities-in-access-to-publication/> 
accessed 28 February 2020. 
'The GLJ - Cambridge Partnership' (Cambridge Core) </core/journals/german-law-
journal/information/glj-cambridge-partners> accessed 19 February 2020. 

 
 
2020} 

Editorial 

5 

globally.10 Until this is realised, however, journals will need to keep on relying 
on the solidarity and benevolence of networks of scholars.  

IN THIS ISSUE 

We  are  delighted  to  bring  you  a  Spring  Issue  with  papers  on  a  diversity  of 
topics  in  the  areas  of  European  and  international  law,  as  well  as  two  book 
reviews dealing with topics beyond strict legal doctrine. This is the first ever 
EJLS  issue  that  encompasses  articles  that  had  previously  been  published 
OnlineFirst  in  accordance  with  our  reformed  publication  policy.  Articles 
accepted  for  publication  may  now  be  published  OnlineFirst  ahead  of  the 
publication of the next regular issue, containing a unique and final identifier 
(DOI)  which  enables  the  citation  of  these  articles.  We  were  delighted  to 
receive positive feedback on our new publication policy both from authors 
and our distinguished readership.  

The  EJLS  2020  Spring  Issue  begins  with  Riikka  Koulu's  insightful 
contribution on a rapidly developing yet still under-researched topic, the use 
of algorithmic decision-making applications in various fields. Koulu discusses 
this  matter  from  the  perspective  of  EU  policy  on  trustworthy  artificial 
intelligence,  and  argues  that  human  control  over  automation  does  not 
necessarily do away with the negative consequences data-driven technologies 
may have on existing societal biases.  

The second article of this Issue also falls within the scope of European Union 
(EU) law: Luca Leone explores another emerging field of law, namely animal 
rights  in  the  EU.  Animal  welfare  and  dignity  are  increasingly  recognised 

10  Whether  the  current  global  state  of  emergency  caused  by  the  COVID-19 
pandemic  will  act  as  a  catalyst  or  an  impediment  to  the  spread  of  open  access 
publishing, will have to be seen. ‘Without Stronger Academic Governance, Covid-
19 Will Concentrate the Corporate Control of Academic Publishing’ (Impact of 
Social 
2020) 
<https://blogs.lse.ac.uk/impactofsocialsciences/2020/04/17/without-stronger-
academic-governance-covid-19-will-concentrate-the-corporate-control-of-
academic-publishing/> accessed 17 April 2020.   

Sciences, 

April 

17 

 
 
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European Journal of Legal Studies  

{Vol. 12 No. 1 

values in the Union, yet, as Leone argues, a number of legal hurdles prevent 
welfarism  from  living  up  to  its  full  potential.  The  article  focuses  on  the 
ongoing reform of the common agricultural policy and labelling issues as case 
studies. 

Moving on to contributions that touch upon institutional questions of the 
EU, first, Matteo Frau and Elisa Tira shed light on the constitutional need for 
control by the European Parliament on military interventions, with a focus 
on Permanent Structured Cooperation on security and defence (PESCO) and 
the  prospect  of  a  European  army.  Frau  and  Tira  argue  that  the  European 
Parliament should be directly involved in EU military operations, in contrast 
to the current institutional allocation of tasks, and scrutinise ways in which 
the democratic control of future EU missions could be increased.   

Our 2020 Spring Issue continues with Michal Ovádek's, Wessel Wijtvliet's 
and Monika Glavina's empirical piece on the European Union's preliminary 
reference  system  and,  more  precisely,  on  the  role  of  national  courts 
occupying different levels of hierarchy in that procedure. The authors discuss 
what importance the CJEU attributes to each individual case, depending on 
whether they are referred by 'peak' courts or lower level courts in the national 
legal  system.  The  authors  found,  having  examined  all  preliminary  rulings 
delivered  by  the  CJEU  between  1961  and  2018  including,  that  the  Court 
considers references from 'peak' courts to be more important.   

Staying within the realm of European law but moving beyond the European 
long-standing 
Union,  Alexandros  Demetriades  addresses  two  of  the 
controversies  surrounding  the  extraterritorial  application  of  the  European 
Convention  on  Human  Rights:  the  conceptual  foundations  of  jurisdiction, 
and  the  responsibility  of  respondent  States  concerning  extraterritorial 
violations of rights protected by the Convention. Based on his analysis of the 
Court's case law, Demetriades proposes a 'concurrent and tailored' model of 
extraterritorial State responsibility, making two interesting propositions. 

Moving to  the field of international law, Pierfrancesco  Rossi examines the 
role  of  national  courts  in  the  enforcement  of  international  law,  more 
precisely, in the protection of the international rule of law. Rossi reflects on 

 
2020} 

Editorial 

7 

the recent Diciotti affair, and examines, through this example in the field of 
migration,  to  what  extent  the  Italian  judiciary  is  well-placed  to  compel 
national  authorities  to  comply  with  international  law.  His  findings  are 
undoubtedly worthy of scholarly attention. 

The 2020 Spring Issue closes with two insightful book reviews. Olga Ceran 
shares her intriguing critique of the book Evaluating Academic Legal Research 
in  Europe.  The  Advantage  of  Lagging  Behind,  edited  by  Rob  van  Gestel  and 
Andreas  Lienhard  and  published  by  Edward  Elgar  in  2019.  Perhaps 
surprisingly in light of the usual content of the EJLS' book review section, this 
book does not analyse a distinct topic of black letter law, but rather engages 
with and sheds light on certain systemic shortcomings of legal scholarship at 
large, that is, troubles with current practices of academic legal evaluations. 
Ceran's  to-the-point  comments  give  an  informative  overview  of  both  the 
merits and the weakness of this work.  

Kerttuli  Lingenfelter  reviews  Rostam  J.  Neuwirth's  Law  in  the  Time  of 
Oxymora: A Synaesthesia of Language, Logic and Law, published by Routledge 
in  2018.  Though  not  a  typical  read  for  a  legally  trained  eye,  Lingenfelter 
manages to capture the essence of the book which draws on a diverse array of 
linguistic, religious, legal, and philosophical sources, and explores the impact 
of oxymora in the arts and sciences, as well as law. As Lingenfelter puts it, the 
book is a 'colourful addition to the growing body of literature on questions of 
"law and …" and "law in …"', and hence it provides an important contribution 
to the knowledge on the interplay of law and language, even if it suffers from 
certain limitations.  

On behalf of the EJLS Editorial Board, I wish you pleasant reading in these 
trying times!  

 
 
GENERAL ARTICLES 

HUMAN CONTROL OVER AUTOMATION: EU POLICY AND AI ETHICS 

Riikka Koulu* 

In  this  article  I  problematize  the  use  of  algorithmic  decision-making  (ADM) 
applications to automate legal decision-making processes from the perspective of the 
European Union (EU) policy on trustworthy artificial intelligence (AI). Lately, the 
use  of  ADM  systems  across  various  fields,  ranging  from  public  to  private,  from 
criminal  justice  to  credit  scoring,  has  given  rise  to  concerns  about  the  negative 
consequences  that  data-driven  technologies  have  in  reinforcing  and  reinterpreting 
existing societal biases. This development has led to growing demand for ethical AI, 
often perceived to require human control over automation. By engaging in discussions 
of human-computer interaction and in post-structural policy analysis, I examine EU 
policy proposals to address the problematizations of AI through human oversight. I 
argue that the relevant policy documents do not reflect the results of earlier research 
which  have  undeniably  demonstrated  the  shortcomings  of  human  control  over 
automation,  which  in  turn  leads  to  the  reproduction  of  the  harmful  dichotomy  of 
human versus machine in EU policy. Despite its shortcomings, the emphasis on human 
oversight reflects broader fears surrounding loss of control, framed as ethical concerns 
around  digital  technologies.  Critical  examination  of  these fears  reveals  an inherent 
connection between human agency and the legitimacy of legal decision-making that 
socio-legal scholarship needs to address.  

Keywords: algorithmic governance, AI ethics, automation, human control, 
oversight, EU law, legal theory

* 

Assistant Professor, Director of University of Helsinki Legal Tech Lab, Helsinki. 
I would like to thank Jacquelyn Burkell (U Ottawa) for pointing me in the direction 
of  post-structural  policy  analysis  as  well  as  Jörg  Pohle  (HIIG),  Ida  Koivisto 
(Helsinki), Anne Klinefeldter (UNC), and anonymous reviewers for their valuable 
comments on earlier versions of this article. 

EJLS 12(1), April 2020, 9-46 

doi:10.2924/EJLS.2019.019 

 
 
 
  
 
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European Journal of Legal Studies  

{Vol. 12 No. 1 

TABLE OF CONTENTS 

I. INTRODUCTION: HUMAN CONTROL FOR ALGORITHMIC DECISION-

MAKING? ......................................................................................................... 10 

II. ORIGINS AND LIMITATIONS OF HUMAN CONTROL ...................................... 18 

1. Human-Machine Interaction Research ................................................................... 18 

2. Engaging in Post-Structural Policy Analysis .......................................................... 24 

III. MAKING THE IMPLICIT EXPLICIT: AI PROBLEMATIZATIONS IN EU 

POLICY ............................................................................................................. 28 

1. The Explicit Objectives of EU Policy: Putting People at the Center of AI 

Development ............................................................................................................. 28 

2. Discovering the Implicit: Human Autonomy as the Last Stand against the AI 

Tidal Wave .............................................................................................................. 34 

3. Locating Silences: Promise of Control and Missing Humans .................................. 38 

IV. THE SUPREMACY OF THE HUMAN OVERSEER: HUMAN AGENCY AS 

JUSTIFICATION ................................................................................................ 41 

V. CONCLUSION: IMPLICATIONS FOR AI POLICY AND SOCIO-LEGAL 

RESEARCH ........................................................................................................ 44 

I. INTRODUCTION: HUMAN CONTROL FOR ALGORITHMIC DECISION-
MAKING?  

Algorithmic decision-making (ADM) systems are used across various fields 
either  to  assist  and  facilitate  or  to  completely  automate  processes,  which 
previously  had  mostly  been  conducted  by  human  decision-makers. 
Increasing reliance on algorithms, defined as encoded procedures for solving 
problems  by  transforming  input  data  into  a  desired  output,1  is  said  to 
contribute to the 'algorithmization' of governance, a distinct form of social 
ordering  that  becomes  entwined  with  autonomous  algorithm-driven 
software.2  Algorithmization  has  given  rise  to  concerns  about  the  negative 

1 

2 

Tarleton Gillespie, 'The Relevance of Algorithms' in Tarleton Gillespie, Pablo J. 
Boczkowski and Kirsten A. Foot (eds), Media Technologies: Essays on Communication, 
Materiality, and Society (MIT Press 2014) 167. 
Aneesh  Aneesh,  'Global  Labor:  Algocratic  Modes  of  Organization'  (2019)  27(4) 
Sociological  Theory  27(4)  347;  Karen  Yeung  and  Martin  Lodge,  Algorithmic 
Regulation (Oxford University Press 2019). 

 
 
 
2020} 

Human Control over Automation 

11 

consequences of data-driven digital technologies, artificial intelligence (AI) 
and machine learning (ML), terms which are often used interchangeably to 
refer to the recent phases of the on-going computational turn. In this article, 
I examine the algorithmization of legal decision-making and the need for AI 
regulation  from  a  socio-legal  perspective.3  By  focusing  on  how  AI  use  is 
problematized in the European Union's (EU) emerging AI policy, I explore 
the  problems  associated  with  ADM  that  law  should  respond  to  and  the 
question  whether  human  control  over  automation  is  a  feasible  legislative 
strategy  for  addressing  these  problems.  It  should  be  noted  that  what 
constitutes 
Instead, 
a  policy  problem 
problematizations are created in policy-making. 

straightforward. 

is  not 

The emphasis in current algorithm studies has been on algorithmic bias as the 
most  pressing  issue  related  to  AI,  following  the  realization  that  ADM 
systems reproduce and reinforce existing societal inequalities.4 In May 2015, 
an independent news outlet, ProPublica, published an exposé on algorithmic 
discrimination  posed  by 
software  COMPAS, 
demonstrating how the system systematically produced higher risk scores for 
racialized  defendants  compared  to  white  defendants.5  Since  then, 

the  presentencing 

3 

Some  scholars  distinguish  between  algorithmic  and  automated  decision-making, 
see  e.g.  Maja  Brkan,  'Do  Algorithms  Rule  the  World?  Algorithmic  Decision-
Making and Data Protection in the Framework of the GDPR and Beyond' (2019) 
27(2) International Journal of Law and Information Technology 91, 94. I use these 
terms  interchangeably,  as  I  consider  algorithmic  decision-making  as  data-driven 
automation.  

4  Muhammad Ali et al., 'Discrimination through Optimization: How Facebook's Ad 
Delivery Can Lead to Skewed Outcomes' (2019) arXiv preprint arXiv:1904.02095; 
Bo  Cowgill,  'Bias  and  Productivity  in  Humans  and  Machines'  (2019)  Upjohn 
Institute Working Paper 19-309, <https://ssrn.com/abstract=3433737> accessed 27 
November 2019; Sara Hajian, Francesco Bonchi, Carlos Castillo, 'Algorithmic Bias: 
From  Discrimination  Discovery  to  Fairness-Aware  Data  Mining'  in  Balaji 
Krishnapuram  et  al  (eds),  Proceedings  of  the  22nd  ACM  SIGKDD  International 
Conference  on  Knowledge  Discovery  and  Data  Mining  (Association  for  Computing 
Machinery 2016) 2125-2126; Sandra G. Mayson, 'Bias in, Bias out' (2019) 128(8) Yale 
Law Journal 2122; Betsy Anne Williams, Catherine F. Brooks, Yotam Shmargad, 
'How Algorithms Discriminate Based on Data They Lack: Challenges, Solutions, 
and Policy Implications' (2018) 8 Journal of Information Policy 78. 
Jeff Larson, Surya Mattu, Lauren Kircher and Julia Angwin, 'How We Analyzed 
2016) 
the  COMPAS  Recidivism  Algorithm' 

(23  May 

ProPublica 

5 

 
 
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algorithmic  discrimination  and  other  ADM  concerns  have  been  widely 
discussed topics in research as well as in policy-making and the mainstream 
media.6 The body of academic literature is rapidly growing and researchers 
working at the intersections of data science, AI ethics, law and policy studies 
discuss  algorithmic  fairness  and  different  means  to  secure  sustainability  of 
ADM  systems.  The  discussions  have  not  emerged  out  of  thin  air.  For 
example,  computer  scientists  have  long  engaged  in  discussions  on  what  it 
exactly means for AI systems to be construed as fair.7  

Against this background, it is somewhat surprising that algorithmization has 
mostly  remained  at  the  margins  of  socio-legal  research.8  Karen  Yeung  and 

<https://www.propublica.org/article/how-we-analyzed-the-compas-recidivism-
algorithm> accessed 15 August 2019. The software's compliance with legal norms 
have been adjudicated on in Wisconsin Supreme Court's judgment in 2017 in which 
the court found that the criminal defendant's right to due process was not infringed 
by the ADM use. See State vs. Loomis 881 N.W.2d 749 (2016). See e.g.  Liu Han-Wei, 
Lin  Ching-Fu,  and  Chen  Yu-Jie,  'Beyond  State v Loomis:  Artificial Intelligence, 
Government  Algorithmization  and  Accountability'  (2019)  27(2)  International 
Journal of Law and Information Technology 122. On algorithmic discrimination, 
e.g. Sam Corbett-Davies, Emma Pierson, Avi Feller, Sharad Goel, and Aziz Huq, 
'Algorithmic Decision Making and the Cost of Fairness' (KDD '17 Proceedings of 
the 23rd ACM SIGKDD International Conference on Knowledge Discovery and 
Data Mining 2017 797) <https://arxiv.org/abs/1701.08230> accessed 22 August 2019 
797–806;  Sloane  Mona,  'Inequality  Is  the  Name  of  the  Game:  Thoughts  on  the 
Emerging  Field  of  Technology,  Ethics  and  Social  Justice'  (Weizenbaum 
Conference. DEU, 2019). 
See  e.g.  Ghaffary  Shirin,  'New  York  City  Wants  to  Make  Sure  the  AI  and 
Algorithms  It  Uses  Aren't  Biased.  That's  Harder  Than  It  Sounds'  Vox  (11  April 
<https://www.vox.com/2019/4/11/18300541/new-york-city-algorithms-ai-
2019) 
automated-decision-making-sytems-accountable-predictive-policing> accessed 22 
August 2019; Kevin Roose, 'A Machine May Not Take Your Job, but One Could 
2019) 
Become  Your  Boss'  The  New  York  Times 
<https://www.nytimes.com/2019/06/23/technology/artificial-intelligence-ai-
workplace.html> accessed 22 August 2019.  
See  e.g.  Ben  Hutchinson  and  Margaret  Mitchell,  '50  Years  of  Test  (Un)fairness: 
Lessons  for  Machine  Learning'  (Proceedings  of  the  Conference  on  Fairness, 
Accountability, and Transparency. ACM, 2019) <https://arxiv.org/abs/1811.10104> 
accessed 22 August 2019.  
ADM in the legal domain is by no means a new phenomenon but instead takes place 
against the historical backdrop of automation of legal processes through technical 

June 

(23 

6 

7 

8 

 
 
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Human Control over Automation 

13 

Martin Lodge attribute this underlap of research to doctrinal boundaries that 
contribute  to  siloed  disciplinary  approaches.9  Some  legal  scholars  have 
attempted  to  provide  a  systematic  overview  of  the  ongoing  developments. 
For  example,  Julie  Cohen  draws  attention  to  the  dynamic  reciprocity  of 
technology  adoption  by  noting  how  law  plays  a  core  role  in  shaping  the 
dynamics of change while being simultaneously restructured in the process.10 
In  turn,  Mireille  Hildebrandt  and  Katja  de  Vries  emphasize  the  growing 
importance  of  due  process  and  the  right  to  contestation  in  the  face  of  the 
computational turn.11 The socio-legal perspective can be seen as particularly 
important  as  it  enables  us  to  assess  the  sufficiency  of  existing  legal  and 
procedural safeguards. The existence of adequate safeguards separates legal 
decision-making from the many daily decision-making processes now being 
automated,  as  the  first  needs  to  cater  to  the  overall  expectations  of 
coherence, rule of law, and legitimacy of the legal system. Simply put, there is 
a difference between adequate legal protection when an ADM system is used 
to curate search engine results compared to automated decisions on refugee 
status or citizenship, between profiling and decisions with enforceable legal 
consequences.  But  in  order  to  assess  the  existing  legal  framework    of 
algorithmized governance, we first need to understand what the problems are 
and  what  challenges  these  systems  pose.  In  other  words,  in  the  context  of 

systems that has been discussed extensively since the 1950s. Much of the discussion 
has been framed in terms of AI & Law, although it should be noted that the concept 
of artificial intelligence (AI) is ambiguous at best. On origins of AI research, see 
John  McCarthy,  Marvin  Minsky,  Nathaniel  Rochester,  Claude  Shannon,  'A 
Proposal for the Dartmouth Summer Research Project on Artificial Intelligence, 
August 31, 1955' (2006) 27(4) AI Magazine 12. Also, definitions of AI change over 
time depending on technological advancements as well as the so-called AI effect, 
where  tasks  successfully  simulated  by  machines  are  no  longer  deemed  AI,  see 
Pamela  McCorduck,  Machines  who  Think:  A  Personal  Inquiry  into  the  History  and 
Prospects  of  Artificial  Intelligence  (A  K  Peters  2004)  204.  For  an  overview  of  the 
development of AI & Law field, see Trevor Brench-Capon, 'A History of AI and 
Law in 50 Papers: 25 Years of the International Conference on AI & Law', (2012) 
20(3) Artificial Intelligence and Law 215. 

9  Yeung and Lodge (n 2). 
10 

Julie Cohen, Between Truth and Power (Oxford University Press 2019).  

11  Mireille  Hildebrandt  and  Katja  de  Vries  (eds),  Privacy,  Due  Process  and  the 
Computational  Turn:  The  Philosophy  of  Law  meets  the  Philosophy  of  Technology 
(Routledge 2013).   

 
 
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which  concrete  concerns  are  we  to  evaluate  the  functioning  of  law,  the 
effectiveness  of  existing  accountability  mechanisms,  and  the  sufficiency  of 
procedural safeguards? 

As  a  response  to  the  public  outcry,  governments,  industry  and  non-
governmental  organizations  alike  are  developing  ethical  frameworks  in  the 
hope  of  enabling  fair  and  trustworthy  ADM  applications.  These  AI  ethics 
guidelines provide an opportunity to pose the question above, given that such 
documents unavoidably need to reflect the perceived problems of AI and to 
simultaneously  construct  ethical  standards  as  a  solution.  In  other  words, 
these  documents  encompass  narratives  about  AI  that  justify  the  need  for 
their existence. Sometimes framed as 'ethics-washing', the instruments have 
been  criticized  for  their  non-binding  nature,  the  lack  of  a  clear  scope  of 
application,  and  limited  interpretative  advice  of  fairness  for  programmers 
and administrators of justice alike, all of which contributes to their limited 
ability to regulate the development and use of AI systems.12 In terms of legal 
sources,  these  instruments  can  be  described  as  soft  law13  that  lack  formal 
validity  but  influence  how  policy  issues  are  perceived.  Not  all  soft  law 
instruments  are  alike,  however; 
instruments  created  by  powerful 
supranational  institutions  such  as  the  EU  also  rely  on  the  authority  of  the 
institutions and not simply on the strength of their arguments. In this sense, 
soft  law  may  also  foster  the  creation  of  hard  law  by  providing  early 
conceptualizations  of  relevant  AI  policy  issues  that  allegedly  need  to  be 
addressed.  The  AI  ethics  guidelines  usually  advocate  human  oversight  as  a 
meaningful protection against the negative consequences of technology use. 

12 

13 

See e.g. Thilo Hagendorff, 'The Ethics of AI Ethics: An Evaluation of Guidelines' 
(2019)  <https://arxiv.org/abs/1903.03425>  accessed  22  August  2019;  Brent 
Mittelstadt, Patrick Allo, Mariarosaria Taddeo, Sandra Wachter, Luciano Floridi, 
'The Ethics of Algorithms: Mapping the Debate' (2016) 3(2) Big Data & Society 1; 
Daniel Greene, Anna Lauren Hoffmann, and Luke Stark, 'Better, Nicer, Clearer, 
Fairer: A Critical Assessment of the Movement for Ethical Artificial Intelligence 
and Machine Learning' (Proceedings of the 52nd Hawaii International Conference 
on System Sciences. 2019) DOI: 10.24251/HICSS.2019.258 accessed 22 August 2019.  
See e.g. Alan Boyle, 'Some reflections on the Relationship of Treaties and Soft law' 
(1999) 48(4) International and Comparative Law Quarterly 901, 901-913. According 
to Boyle, soft law is defined by its non-binding nature, focus on general principles 
instead of rules, and lack of direct enforceability. 

 
 
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15 

Does this mean that hard law regulation should also aim to include human 
control as a legal protection?  

This article does not repeat the critique against AI ethics in policy-making, 
although the established shortcomings do form its starting point. I discuss 
one  solution  proposed  in  the  EU's  policy-making,  namely  human  control, 
referred to as Human-in-the-loop (HITL), human oversight or intervention, 
human-on-the-loop (HOTL), or human-in-command (HIC).14 There is also a 
terminological connection between human control and the so-called human-
centric approach, which also poses a similar linguistic focus on human agency.  

Answering the question on legislative strategy for ADM requires us to assess 
the feasibility of human control from a socio-legal perspective, particularly as 
the  EU  is  now  developing  the  structures  and  processes  to  govern  ADM 
systems,  which  are  then  established  as  legal  rights,  obligations,  and 
safeguards. Political choices on regulatory objectives are translated into legal 
concepts and thus operationalized within the legal system. Once employed, 
these  objectives  and  regulatory  choices  can  become  embedded  within  the 
legal  structures  and  cannot  be  fundamentally  contested.  Human  oversight 
may become  a  central procedural  mechanism  for  automated decisions,  but 
once it defines procedural rights and obligations it is more difficult to present 
a fundamental critique of its feasibility. That is the reason why it is important 
to  ask  now  whether  human  control  can  fulfil  its  promise,  requiring  us  to 
consider  the  problems  of  AI  that  call  for  human  control.  A  regulatory 
strategy built on false beliefs about the strengths of human control may fail 
to provide adequate legal protection for those subjected to automated legal 
decision-making.  

'Ethics  Guidelines 

for  Trustworthy  AI' 

14  European  Commission,  Independent  High-Level  Expert  Group  on  Artificial 
(8  April  2019) 

Intelligence, 
<https://ec.europa.eu/digital-single-market/en/news/ethics-guidelines-
trustworthy-ai>  accessed  22  August  2019  (Hereinafter  Guidelines),  16;  see  also 
Communication  COM(2019)  168  final  from  the  Commission  to  the  European 
Parliament, the Council and the European Economic and Social Committee and 
the  Committee  of  the  Regions  on  Building  Trust  in  Human-Centric  Artificial 
Intelligence 
[2019] 
<https://ec.europa.eu/transparency/regdoc/rep/1/2019/EN/COM-2019-168-F1-
EN-MAIN-PART-1.PDF> accessed 22 August 2019, 4. 

 
 
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At first glance, human control seems like a plausible solution, as ultimately it 
aligns with law's anthropocentricity, reflected in the fact that law recognizes 
only human actors as objects of regulation, not machines. At times, law goes 
to great lengths to uphold at least the fiction of this anthropocentricity, for 
example  by  granting  legal  personhood  to  corporations  and  non-human 
organizations.  Hence,  it  is  perhaps  not  surprising  that  the  importance  of 
keeping  humans  in  control  of  automation  is  widely  agreed  upon  in  legal 
scholarship.15 The reasons given may be instrumental, such as of the need to 
allocate  responsibility  to  human  actors  due  to  legal  liability  regimes.16 
However, there seems to be a more fundamental argument that considers the 
human  element  as  being  intrinsically  indispensable,  although  this  is  not 
elaborated  on  in  great  length.  Instead,  human  agency,  participation  and 
control  are  portrayed  as  uncontestable  necessities  that  are  ultimately 
connected with democratic legitimacy. For example, John Danaher contends 
'[l]egitimate  decision-making  procedures  must  allow  for  human 
that 
participation  in  and  comprehension  of  those  decision-making  procedures' 
and  that,  because  reliance  on  ADM  limits  active  human  participation,  the 
systems impose a fundamental threat to legitimacy that he considers difficult 
to  accommodate  or  resist.17  In  her  work  on  the  intersections  of  law, 
technology and philosophy, Mireille Hildebrandt addresses similar issues of 
justification and discusses the need for protection of  'what is uncountable, 
incalculable or incomputable about individual persons', which comes under 
threat in the context of automated decision-making, where contestation by 
those subjected to automation plays a vital role.18 In contrast, others focus on 

15 

See e.g. Woodrow Hartzog, 'On Questioning Automation' (2017) 48 Cumberland 
Law  Review  1;  Michael  Schmitt  and  Jeffrey  Thurnher,  'Out  of  the  loop: 
autonomous  weapon  systems  and  the  law  of  armed  conflict'  (2012)  4  Harvard 
National  Security  Journal  231;  Danielle  Keats  Citron  and  Frank  Pasquale,  'The 
Scored  Society:  Due  Process  for  Automated  Predictions'  (2014)  89  Washington 
Law Review 1. 

16  Madeleine  Elish,  'Moral  Crumple  Zones:  Cautionary  Tales  in  Human-Robot 

17 

Interaction' (2019) 5 Engaging Science, Technology, and Society 40, 41. 
John Danaher, 'The Threat of Algocracy: Reality, Resistance and Accommodation' 
(2016) 29(3) Philosophy & Technology 245, 254.  

18  Mireille  Hildebrandt,  'Privacy  as  Protection  of  the  Incomputable  Self:  From 
Agnostic to Agonistic Machine Learning' (2019) 20(1) Theoretical Inquiries in Law 
83, 83-121. 

 
 
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Human Control over Automation 

17 

the fabricated and performative nature of human intervention. For example, 
Sheila  Jasanoff  draws  attention  to  the  'human  pretensions  of  control  over 
technological systems', which demands for critical re-examination.19  

This article is built on Jasanoff's call for critical examination of the feasibility 
of human control over automation. I argue that the focus on human control 
in policy decisions over automation is insufficient and misguided. I build this 
argument in two steps. In section II, I discuss the origins and limitations of 
human control over automation, considering research conducted on human-
computer  interaction  (HCI).  The  HCI  literature  provides  insight  into  the 
potential  and  shortcomings  of  human  control  and  hence  explains  the 
situations and conditions in which human control may be worthwhile. This 
HCI perspective is often missing in both policy-making as well as in socio-
legal scholarship. In section III, I engage in critical analysis of the EU's three 
policy  documents  on  AI  in  order  to  identify  the  situations  in  which  the 
documents advocate  for  human control  as  a  meaningful precaution. While 
the explicitly expressed problems do form a starting point for this analysis, 
they do not provide an exhaustive overview. Instead, policy documents come 
embedded with implicit assumptions about the problems they aim to target 
and these problematizations are not necessarily the same as those explicated. 
The  acknowledgment  of  how  AI  is  problematized  both  explicitly  and 
implicitly  is  necessary  to  assess  the  feasibility  of  human  control  for  legal 
protection.  By  engaging  in  post-structural  policy  analysis,  described  in 
further detail in section II.2, I aim to reveal the implicit assumptions behind 
the  chosen  approach  to  human  control.  By  contrasting  the  explicit  and 
implicit problematizations, we can provide a more nuanced understanding of 
the perceived problems  with AI that human control  is  thought to  address. 
Finally,  in  section  IV,  I  return  to  the  discussion  of  human  control  as  a 
regulatory  strategy  and  the  role  of  human  agency  in  the  legitimacy  of 
decision-making.  By  incorporating  perspectives  from  legal  theory  and 
European  law,  HCI  and  policy  analysis,  I  hope  to  combine  theoretical 
assessment of the feasibility of human control with a close reading of policy 
lege  ferenda  discussions 
documents  and 
surrounding AI. This approach contributes to a more comprehensive socio-

interconnect  these  with  de 

19 

Sheila  Jasanoff,  'Technologies  of  Humility:  Citizen  Participation  in  Governing 
Science' (2003) 41(3) Minerva 223.   

 
 
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legal  overview  of  the  object  of  AI  regulation  and  the  complex 
interconnections between law, technology, and policy.   

II. ORIGINS AND LIMITATIONS OF HUMAN CONTROL  

1. Human-Machine Interaction Research 

In  this  section,  I  discuss  some  of  the  early  research  in  human-computer 
interaction  in  order  to  demonstrate  the  context  in  which  the  early 
formulations of human control over automation emerged. Such genealogical 
analysis is necessary in order to understand what it means to establish human 
control as the core means of organizing the division of labor, as well as legal 
liability, between the human decision-maker and the ADM system. Human 
control over automation comes with conceptual baggage related to its early 
context and the level of technological development at the time that we need 
to  understand  in  order  to  critically  examine  its  feasibility  as  a  potential 
regulatory  strategy.20  The  early  work  on  human  control  was  built  on 
perception that humans and machines have differing capabilities, requiring a 
separation  between  the  tasks  entrusted  to  humans  and  machines 
respectively. This human/machine dichotomy has since been challenged by 
research focused on collaboration rather than division, but it still provides an 
important  framing.  In  policy  documents,  the  historical  context  of  human 
control is typically not elaborated, meaning that the underlying assumptions 
remain outside the scope of policy debate.  

Originally framed in terms of human-in-the-loop rather than human control, 
early iterations are often traced back to post-war work on aviation security.21 
Some of the early iterations of human-in-the-loop were developed in human 
factors research in relation to aviation security in the US, with the objective 
of  reducing  human  error  and  enhancing  safety  through  a  focus  on  the 
interaction  between  humans  and  computers.  The  early  work  on  human 
factors  was  interested  in  function  allocation,  i.e.  which  tasks  should  be 

20  On conceptual baggage of key concepts see, e.g. Jan Ifversen, 'About Key Concepts 
and How to Study Them' (2011) 6(1) Contributions to the History of Concepts 65, 
73.  
See e.g. Elish (n 16) 40–60.  

21 

 
 
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Human Control over Automation 

19 

automated  by  computers  and  which  ones  should  remain  within  human 
control.  

A starting point for this line of inquiry can be traced back to 1951, which saw 
the  publication  of  the  so-called  Fitts  list,  which  was  meant  to  provide 
background information for policy makers. The list was drafted by Paul Fitts, 
a former US Air Force Lieutenant Colonel and psychologist at the University 
of  Ohio,  who  went  on  to  develop  a  mathematical  model  to  predict  human 
motion called Fitts's law. The so-called HABA-MABA model ('humans are 
better  at,  machines  are  better  at')  included  11  statements  to  describe  tasks 
humans are better at accomplishing and which are more easily performed by 
machines.  According  to  Fitts,  humans  surpass  machines  in  cognitively 
challenging  tasks  such  as  perception,  judgment,  improvisation,  and  long-
term memory, whereas machines are better than humans in tasks that require 
speed, power, computation, replication, simultaneous operations, and short-
term memory.22 Fitts list has remained a seminal work of function allocation 
research  and,  as  will  be  examined  in  further  detail  in  section  III,  the 
foundational assumptions have later been adopted and expanded in broader 
discussions on the necessity of human control over technology, most recently 
in AI ethics discussions.23  

While the HABA-MABA model now seems somewhat outdated, in its time 
it provided an adequate description of which tasks could be automated. The 
model  reflected  the  contemporary  state-of-the-art  of  technological 
development.  In  addition  to  technological  progress,  early  iterations  of 
human control also reflected political and ideological choices of the time, as 

23 

22  Paul  M.  Fitts  (ed),  Human  Engineering  for  an  Effective  Air-Navigation  and  Traffic-
Control  Aystem  (National  Research  Council,  Division  of  Anthropology  and 
Psychology, Committee on Aviation Psychology 1951). 
See  e.g.  Joost  de  Winter  and  Dodou  Dimitra,  'Why  the  Fitts  List  has  Persisted 
Throughout  the  History  of  Function  Allocation'  (2014)  16(1)  Cognition, 
Technology  &  Work  104.  On  criticism,  see  Meg  Leta  Jones,  'The  Ironies  of 
Automation Law: Tying Policy Knots with Fair Automation Practices Principles' 
(2015)  18  Vanderbilt  Journal  of  Entertainment  &  Technology  Law  77,  106:  'The 
Fitts List has been heavily criticized as an intrinsically flawed descriptive list, little 
more than a  useful starting point,  insufficient, outdated, static, and incapable of 
acknowledging the organizational context and complementary nature of humans 
and machines'.  

 
 
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the model was adapted to the highly politicized topic of space travel in the 
Apollo program in 1960-1972. In space aviation, the involvement of a human 
operator  was  also  considered  necessary  for  automated  operations  with  the 
concession that inclusion could take place remotely.24 Due to the geopolitical 
dimension, organization of human control became a question of ideological 
choice.  David  Mindell  describes  how  preference  given  to  human  control 
reintroduced the perceived political differences between the American and 
Soviet approaches.25 Interestingly, the HABA-MABA model still persists as 
a key conceptualization of human-machine interaction and, as such, is often 
referred to in legal discussions on automation, albeit often critically.26 In the 
1980s,  the  human/machine  dichotomy  was  increasingly  superseded  by  the 
notion  of  'human-centered  design',27  although  it  is  unlikely  that  the  latter 
concept  actually  signified  separation  from  the  earlier  doctrine,  despite  the 
terminological shift. Simply put, if everyone still refers to the HABA-MABA 
model, even critically, the model still persists as the locus of discussions on 
the  central  framing  of  human-computer  interaction,  and  consequently 
continues to frame considerations concerning potential solutions.  

Function  allocation  research  and  later  work  on  teleoperations,  human-
machine interaction, and cognitive engineering have demonstrated some of 

24 

25 

26 

27 

'One of the pre-requisites for taking the man out of the systems operation must be 
the capability to describe very carefully, and in some detail, the characteristics of 
the operation before it starts. Of course, in some instances the man can be included 
by leaving him on the ground and providing him with necessary intelligence'. See 
Richard Horner, 'Banquet Address before the first Annual Awards Banquet of the 
Society  of  Experimental  Test  Pilots'  (1957)  2(1)  SETP  Quarterly  Review  1,  7,  as 
referenced  in  David  Mindell,  Digital  Apollo:  Human  and  Machine  in  Space  Flight 
(MIT Press 2008) 19. 
‘Keeping the astronauts ''in the loop,'' overtly and visibly in command with their 
hands  on  a  stick,  was  no  simple  matter  of  machismo  and  professional  dignity 
(though it was that too). It was a well-articulated technical philosophy. It was also 
necessary  to  achieve  the  political  goals  of  the  space  program  and  show  that  the 
classical  American  hero—skilled,  courageous,  self-reliant—had  a  role  to  play  in  a 
world  increasingly  dominated  by  impersonal  technological  systems  (especially  in 
contrast to the supposedly over-automated Soviet enemy)'. See Mindell (n 24) 5. 
See Jones (n 23) 130. In fact, citations on the Fitts list have steadily increased during 
the last decades. See De Winter and Dodou (n 23) 2.  
Jones (n 23) 112. 

 
 
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the  inherent  shortcomings  of  human  control  over  automation.  For  various 
reasons, from boredom at routine monitoring to automation bias and alert 
fatigue,  humans  generally  perform  badly  as  supervisors  of  automated 
technical systems.28 These 'ironies of automation' were discussed in 1983 by 
Lisanne  Bainbridge,  who  explained  how  automation  design  'still  leaves  the 
operator to do the tasks which the designer cannot think how to automate', 
despite the intention to replace human control. These tasks usually include 
monitoring  and  take-over  functions  which  humans  have  been  shown  to 
perform badly.29 Bainbridge argues that 'by taking the easy part of his task, 
automation can make the difficult parts of the human operator's task more 
difficult'.30 Similarly, the notion that accidents related to technical systems 
follow  from  human  error  was  contested  by  sociologist  John  Perrow, 
according  to  whom  systemic  or  'normal  accidents'  follow  from  combined 
effects  of  tightly  coupled  complex  systems  that  have  high  risk  potential.31 
Thus, accidents are unavoidable in the sense that they cannot be prevented 
by  simple  design  choices.  In  light  of  technological  development  and  the 
introduction of the relatively autonomous ADM systems currently in use, the 
recent HCI research discussed above seems to provide a better account of 
the limitations of human control than the human/machine dichotomy. Based 
on  these  insights,  the  scope  for  human  control  over  automation  seems 
relatively narrow in practice.  

28 

'There  is  much  evidence  that  people  are  not  good  monitors  of  automation'  for 
various  reasons,  including  boredom  that  ensues  from  monotonous  tasks,  see 
Thomas  B.  Sheridan,  Skaar  S.  B.,  Ruoff  C.  F.,  'Human  Enhancement  and 
Limitation in Teleoperation' (1994) 161 Progress in Astronautics and Aeronautics 
43, 54; Elish (n 16) 50 'skills atrophy when automation takes over'; on alert fatigue 
in the medical field, see Rush Jess et al., 'Improving Patient Safety by Combating 
Alert Fatigue' (2016) 8(4) Journal Graduate Medical Education 620, 620–621.  
29  Lisa Bainbridge, 'Ironies of Automation' (1983) 19(6) Automatica 775, 775-779.  
30 

Interestingly,  she  considers  human  oversight  as  a  necessity  for  complex 
automation: 
'There  will  always  be  a  substantial  human  involvement  with 
automated systems, because criteria other than efficiency are involved, e.g. when 
the cost of automating some modes of operation is not justified by the value of the 
product,  or  because  the  public  will  not  accept  high-risk  systems  with  no  human 
component'. Ibid 777. 
John  Perrow,  Normal  Accidents:  Living  with  High-Risk  Technologies  (Basic  Books 
1984). 

31 

 
 
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One might expect that AI policy would be informed by these observations. 
Instead, it seems that the early human/machine dichotomy is still reproduced 
in  policy-making  without  including  later  critical  appraisals.  Hence,  policy 
documents  portray  human  control 
in  opposition  to  unstoppable 
technological  change,  rather  than  as  hybridization  of  complex  socio-
technical systems, i.e. seamless collaboration between humans and artificial 
systems. In their critical analysis of AI ethics documents, Greene et al. point 
out that  

the  precise reasons  why  AI/ML  are  matters of  ethical  concern  differ  from 
organisation  to  organisation.  Some  lean  on  the  language  of  distributive 
justice, arguing AI/ML's benefits and penalties will be unevenly distributed.32  

Greene et al. argue that AI ethics guidelines reflect ethical universalism and 
determinism, which means that ethical concerns are seen as a universal, cross-
species  force  of  nature  to  which  humans  can  only  react.  Simultaneously, 
human  agency is advocated as a plausible  solution,  although in  the form  of 
expert oversight instead of public mass movement. Jones draws attention to 
the  arbitrariness  of  policy-making  that  operates  on  the  logic  of  human 
oversight:  'when  presented  with  an  automation-related  problem,  law  and 
policy responses have been to preserve or protect an explicit value by simply 
inserting  or  removing  a  human  from  the  loop,  which  actually  ends  up 
backfiring'.33  

Furthermore, Madeleine Clare Elish suggests, human oversight may be used 
detrimentally to assign guilt and responsibility to humans. Elish introduces 
the concept of 'a moral crumple zone to describe how responsibility for an 
action may be misattributed to a human actor who had limited control over 
the  behavior  of  an  automated  or  autonomous  system'.34  Drawing  on 
investigations of the Three Mile Island nuclear accident in 1979 and the Air 
France Flight 447 crash in 2009, Elish demonstrates how in these two cases, 
the  accidents  were  attributed  to  human  error  despite  the  fact  that  both 
resulted from a complex set of factors related to human-machine interaction, 
as well as to system design. According to Elish, law and policy play a role in 
the  creation  of  moral  crumple  zones,  as  attribution  of  liability  in  aviation 

32  Greene et al. (n 12) 2127.  
33 

Jones (n 23) 81. 
34  Elish (n 16) 40. 

 
 
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demonstrates:  certification  standards  recognize  only  mechanical  failure  to 
give rise to accountability and hence only a human pilot can be the source of 
malfunction in situations of shared control.35 

Limitations  and  problems  of  human  oversight  are  widely  acknowledged  in 
research, leading to  efforts to improve the inherently flawed human-facing 
control  of  automation.  For  example,  Brkan  discusses  the  minimum 
acceptable  level  for  meaningful  human  oversight  in  light  of  EU  legislation, 
thus addressing the issue of 'rubber stamping', when human control becomes 
mostly performative.36 Drawing from the research field of AI & Law and 'by 
design'  approaches,  Almada  proposes 
reinterpretation  of  human 
intervention in a manner that would complement post hoc oversight with an 
ex  ante  approach  he  calls  'contestability  by  design',  through  which  the 
safeguards  and  data  of  the  subject's  rights  stipulated  in  article  22  of  the 
General Data Protection  Regulation (GDPR)37 would be  embedded  in the 
technical design of the ADM system.38 In turn, from the computer science 
perspective, Sirajum et al. argue that HITL should be a central system design 
principle, requiring solutions to certain challenges, most important of which 
is to determine 'how to incorporate human behavior models into the formal 
methodology of feedback control'.39  

35 

36 

Ibid 50.  
See  e.g. Brkan (n  3),  where she  contends  that  rubber  stamping  is  not  enough for 
meaningful intervention necessitated by GDPR article 22 but instead the overseer 
needs to possess authority and capability to change the decision. 

37   Regulation  (EU)  2016/679  of  the  European  Parliament  and  of  the  Council  of  27 
April 2016 on the protection of natural persons with  regard to the processing of 
personal  data  and  on  the  free  movement  of  such  data,  and  repealing  Directive 
95/46/EC. 

and 

38  Marco  Almada,  'Human  Intervention  in  Automated  Decision-Making:  Toward 
the Construction of Contestable Systems' (International Conference on Artificial 
Intelligence 
2019) 
Law 
<https://www.researchgate.net/profile/Marco_Almada/publication/327602212_Hu
man_intervention_in_automated_decision-
making_Toward_the_construction_of_contestable_systems/links/5cc64eb8a6fdc
c1d49b76103/Human-intervention-in-automated-decision-making-Toward-the-
construction-of-contestable-systems.pdf> accessed 23 August 2019.  
Sirajum Munir et al., 'Cyber Physical System Challenges for Human-in-the-Loop 
(8th  International  Workshop  on  Feedback  Computing,  2013) 
Control' 

ICAIL'19, 

39 

 
 
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Others have provided alternative problematizations of, while still advocating 
some form of human control as a potential solution. For example, Liu et al. 
attribute the problem partly to the current focus on the technical perspective 
of  AI  development  that  disguises  the  embedded  heterogenous  power 
relations.40 Rahwan  assigns the  problem to a lack of societal commitment, 
which  could  be  resolved  by  'looping  in'  society.41  Within  the  Human-AI 
Interaction  field,  Amershi  et  al.  identify  the  core  problem  as  being  the 
unpredictability of AI-infused systems, which results from uncertainty and 
leads to false positives and false negatives; the remedy lies, they suggest, in 
improving  user  interface  design  following  generally  accepted  design 
guidelines.42  

In  summary,  decades  of  research  on  human-machine  interaction  have 
developed  nuanced  approaches  to  human  control  and  simultaneously 
demonstrated  its  practical  limitations  over  automated  systems.  But  does 
policy-making reflect these insights? And if not, do AI ethics guidelines end 
up  reproducing  these  'human  pretensions  of  control  over  technological 
systems'?43  Do  the  AI  policy  documents  take  it  for  granted  that  human 
control ensures adequate ethical and legal safeguards?  

2. Engaging in Post-Structural Policy Analysis 

The fact that human control is advocated in AI policy, despite the limitations 
established by HCI, suggests that either the policy-making is built on false 
assumptions  about  the  potential  of  such  control  or,  alternatively,  that  the 
emphasis on human control serves a purpose other than de facto oversight. As 
discussed in section I, this purpose might involve the justification and overall 
legitimacy of decision-making, as some legal scholars suggest. But in order to 

<https://www.usenix.org/system/files/conference/feedbackcomputing13/feedback
13-munir.pdf> accessed 23 August 2019. 

42 

'Society-in-the-Loop:  Programming  the  Algorithmic  Social 

40  Liu et al. (n 5).  
41 
Iyad  Rahwan, 
Contract' (2018) 20(1) Ethics and Information Technology 5, 7.  
Saleema Amershi et al, 'Guidelines for Human-AI Interaction' (Proceedings of the 
2019  CHI  Conference  on  Human  Factors  in  Computing  Systems,  ACM,  2019) 
<https://dl.acm.org/citation.cfm?id=3300233> accessed 23 August 2019.  
Jasanoff (n 19). 

43 

 
 
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substantiate  this  claim,  we  need  to  look  closer  at  the  policy  documents  to 
identify the problems which human control is considered to address.  

What does a problem description in a policy document entail? I proceed from 
the observation that problematizations are fabricated in the course of policy-
making.  In  this  sense,  problem  representations  in  policy-making  are  not 
neutral. Instead, linguistic choices reflect the power to decide which issues 
are worthy of policy action and which issues are not. This perspective aligns 
with the argument presented by Liu et al., namely that the narrow focus on 
technology  diverts  attention  from  the  heterogenous  power  relations  of  AI 
development.44 In a similar vein, I argue that AI policy documents include, in 
addition to the problems they explicitly point to, implicit assumptions about 
the  problems  underlying  the  proposed  solution  of  human  control.  To 
understand the intricacies of problem presentations better, I have employed 
a Foucault-influenced post-structural policy analysis called the  'What's the 
Problem  Represented  to  Be?'  or  WPR  approach  in  order  to  reveal  how 
human control reinforces the old distinction between human and machine 
and attributes legitimacy creation only to human agency.  

What  is  the  added  value  of  this  focus  on  problematizations  for  AI  policy 
analysis?  Foucauldian  sociology  has  been  particularly  interested  in  the 
intricate ways in which power works through language, which often remains 
beyond the scope of more socio-legal approaches to policy analysis. Although 
such  analysis  might  seem  merely  descriptive  from  the  legal  viewpoint,  the 
objective of Foucauldian policy analysis is in fact diagnostic. As Nikolas Rose 
puts  it,  analytics  of  governmentality  'seek  an  open  and  critical  relation  to 
strategies 
for  governing,  attentive  to  their  presuppositions,  their 
assumptions,  their  exclusions,  their  naivities  and  their  knaveries,  their 
regimes of vision and their spots of blindness'.45 Consequently, the focus on 
problematizations  aims  to  broaden  the  space  of  possible  policy  solutions. 
Hence,  this  diagnostic  examination  serves  the  needs  of  the  socio-legal 
perspective as it provides a deeper understanding to support informed policy 
decisions on de lege ferenda. Other socio-legal scholars have conducted similar 
analyses in other fields of law. For example, Dent applies Foucauldian analysis 

44  Liu et al (n 5). 
45  Nikolas Rose, Powers of Freedom: Reframing Political Thought (Cambridge University 

Press 1999) 9. 

 
 
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to  examine  the  copyright  regime  as  a  governmentalist  practice  diffused 
throughout  society.46  At  the  core  of  governing  lies  the  process  of 
subjectification, how subjecthood is not naturally given but created through 
governing practices that contribute to the process in which human persons 
turn themselves into subjects of governing. He argues that the field cannot be 
characterized  by  any  single  problematization  but  rather  is  filled  with 
different  government  rationalities  that  can  be  made  visible  through  a 
complete  genealogical  examination  of  copyright  practices.  In  his  analysis, 
'problematization  is  both  a  process  of  governance  and  a  technique  for 
investigating the acts of governing'.47 To this end, he argues, the advantage of 
problematizations is that it enables us to perceive multiple rationalities and 
purposes  instead  of  a  static  'monolithic,  ahistorical  problematization  of 
(self-) expression'.48  

Similarly  based  on  the  Foucauldian  sociology  of  problematizations,  Carol 
Bacchi has explored how problems are constituted in policy documents and 
how  governance  is  organized  through  these  problematizations,  with  the 
objective  of  exposing  how  the  political  agenda  behind  'chosen'  problems 
insidiously defines what is possible or impossible to ask, which outcomes are 
desired or undesired, which perspectives are included and which excluded – 
in short, what the policy debate is about.49 The WPR approach contests 'the 
common  view  that  the  role  of  governments  is  to  solve  problems  that  sit 
outside  them,  waiting  to  be  "addressed"'  and  provides  step-by-step 

46  Chris Dent, 'Copyright, Governmentality and Problematisation: An Exploration' 

47 

48 

49 

(2009) 18(1) Griffith Law Review 129, 131. 
Ibid 133. 
Ibid 141. 
'To  say  that  policies  create  "problems"  as  particular  sorts  of  problems,  does  not 
mean to suggest that governments set out to produce homelessness or poverty, or 
even to deliberately represent homelessness or poverty in particular ways. Rather, 
the proposition is that the specific policy or policy proposal contains  within it an 
implicit representation of the 'problem', referred to as a problem representation. 
This  proposition  relies  upon  a  simple  idea:  That  what  we  propose  to  do  about 
something  indicates  what  we  think  needs to change  and  hence  what  we  think  is 
problematic – that is, what the 'problem' is represented or constituted to be'. See, 
Carol Bacchi, 'Problematizations in Health Policy: Questioning How 'Problems' 
open 
Policies' 
Are 
<https://doi.org/10.1177/2158244016653986> accessed 23 August 2019. 

Constituted 

SAGE 

(2016) 

in 

 
 
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Human Control over Automation 

27 

instructions  for  elaborating  how  problems  are  made  within  policy-making 
practices.50  The  analysis  involves  'working  backwards'  from  proposed 
solutions  to  problem  representations  and,  following  a  set  of  questions, 
drawing attention to the underlying presuppositions and assumptions as well 
as  the  emergence  and  effects  of  the  said  problem  representation.  In  the 
context  of  the  present  paper,  this  means  working  backwards  from  the 
proposed solution of human control over automation to question what are 
construed  as  the  'problems'  of  ADM  systems  and  AI  in  general.  For  my 
analysis, this means looking at how human control is formulated in the policy 
documents  in  order  to  reveal  the  embedded  assumptions  the  solution 
presupposes.  What  does  human  control  tell  us  about  the  nature  of  AI 
problems  in  the  EU's  policy?  What  history,  context,  and  narrative  are 
generated  in  these  policy  documents?  Do  the  policy  documents  reflect  a 
reasonable  understanding  of  the  possibilities  and  limitations  of  human 
control as they are discussed in HCI research?  

The WPR approach lists potential questions that guide the critical analysis, 
starting by identifying problem representations in search of 'a way to open up 
for  questioning  something  that  appears  natural  and  obvious'.51  I  focus  in 
particular on questions that aim to reveal the hidden ontological assumptions 
behind policy formulations and what is left unsaid (and thus excluded from 
discussion)  by  these  formulations:  what  deep-seated  presuppositions  or 
assumptions  underlie  this  representation  of  the  'problem'?  What  is  left 
unproblematic in this problem representations? Where are the silences? Can 
the  'problem'  be  conceptualized  differently?52  The  last  step  in  Bacchi's 
approach  is  self-problematization,  the  reflexive  application  of  the  critical 
approach to the analyzer's own argumentation to reveal the selective choices 
that motivate it. In line with this approach, I argue that human control as a 

50  Carol Bacchi and Susan Goodwin, Poststructural Policy Analysis: A Guide to Practice 
(Palgrave 2016) 14. WPR approach is not interested in 'how different people might 
problematize the issue but how the policy itself problematizes it' (p. 17). Hence, the 
focus is on how problematizations are created by policy itself, not how individuals 
and  organizations  involved  in  policy-making  processes  perceive  them.  Complex 
policy documents often contain more than one problem presentation (p. 20), as is 
also the case with the EU's AI ethics documents. 
Ibid 20. 
Ibid 20-21.  

52 

51 

 
 
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solution  to  AI  problems  is  built  on  a  premise  not  unlike  that  of 
human/machine  dichotomy  of  HABA-MABA  model,  namely  that  the 
actions  of  humans  and  technological  systems  can  be  clearly  distinguished 
from  one  another  and  the  former  put  in  charge  of  the  latter.  The  policy 
documents  ultimately  build  a  hopeful  narrative:  AI  risks  are  construed  as 
potentially  harmful  for  human  autonomy,  but  with  human  control  these 
harms can effectively be prevented. Although aspirational, the narrative does 
not necessarily hold true in light of HCI research.    

III. MAKING THE IMPLICIT EXPLICIT: AI PROBLEMATIZATIONS IN EU 
POLICY  

1.  The  Explicit  Objectives  of  EU  Policy:  Putting  People  at  the  Center  of  AI 
Development 

In this section, I analyze three documents that reflect the EU's current policy 
on  AI  ethics.  The  first  of  these  documents  is  the  Commission's 
communication on Artificial Intelligence for Europe from spring 2018 ('the 
Strategy'),  mandated  by  the  Council,  which  establishes  the  need  for  a 
European  approach  in  order  to  reap  the  advantages  of  AI.53  The  second 
document is the Ethics Guidelines for Trustworthy AI ('AI HLEG') drafted 
by the Independent High-Level Expert Group set up by the Commission.54 
The  expert  group  delivered  its  first  draft  in  December  2018  and,  after 
stakeholder  consultation,  a  revised  version  in  April  2019.55  The  third 
document  is  the  Commission's  communication  in  April  2019  on  Building 
Trust  in  Human-Centric  Artificial  Intelligence  ('Communication')  that 
incorporates the key points of the AI HLEG guidelines.56 I first discuss how 
AI policy issues are framed and positioned in these documents, considering 

53  Communication  COM(2018)  237  final  from  the  Commission  to  the  European 
Parliament, the European Council, The Council and the European Economic and 
Social Committee and the Committee of the Regions on Artificial Intelligence for 
Europe  [2018]  <https://ec.europa.eu/transparency/regdoc/rep/1/2018/EN/COM-
2018-237-F1-EN-MAIN-PART-1.PDF> accessed 22 August 2019, 2. 
Ibid section 3.3.  
See COM(2019) 168 final (n 14). As soft law, the Guidelines are meant to be adopted 
by stakeholders on a voluntarily basis.  
Ibid.  

54 

56 

55 

 
 
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the  terminological  ambiguity  of  AI  and  what  the  perceived  relationship 
between law and ethics is. In addition, I examine the intended usage and form 
as well as explicit expectations linked with human control. In section III.2, I 
then locate what has been left unsaid in the hope of finding out what remains 
beyond the scope of these policy initiatives.  

To understand better  the  explicit problems  of AI these documents aim to 
address,  we  first  need  to  look  into  what  is  meant  by  AI,  i.e.  from  which 
qualities do perceived problems emerge. Interestingly, AI is not defined in 
technological  terms  in  any  of  the  documents  but  instead  by  reference  to 
digital  transformation  and  the  increasing  autonomy  of  AI  systems. 
According to the Strategy, AI is one of the most strategic technologies of the 
21st century and is transforming the world, society, and industry like the steam 
engine  and  electricity  in  the  past.  AI  is  defined  as  'systems  that  display 
intelligent behavior by analyzing their environment and taking actions – with 
some degree of autonomy – to achieve specific goals'.57 The systems are both 
software-based and embedded in hardware and often require data to improve 
their  performance.  Hence,  AI  is  seen  to  refer  to  relatively  autonomous 
algorithmic  models  that  infer  outputs  from  input  data.  In  short,  AI  is 
perceived  as  a  combination  of  relatively  autonomous  data-driven 
technologies.  This  conception  of  AI  is  unsurprising  given  that  data 
governance is at the core of EU technology policy. Furthermore, the GDPR 
creates a normative basis for automated decision-making that connects data 
subject's  legal  protection  with  human  intervention.  Article  22(1)  of  the 
GDPR  provides  for  the  right  for  a  data  subject  not  to  be  subjected  to  a 
decision based solely on automated data processing. Although exceptions to 
the  main  rule  are  stated  in  article  22(2),  these  may  only  be  applied  with 
suitable  measures  for  the  data  subject's  legal  protection,  the  minimum 
standard  stated  in  22(3)  being  the  data  subject's  'right  to  obtain  human 
intervention on the part of the controller, to express his or her point of view 
and to contest the decision'.58 The existing regulation also forms the basis for 
the development of an AI-specific framework around human intervention.  

What  then  are  the  stated  objectives  of  the  policy  documents?  The 
Communication states that the aim of the emerging AI ethics regime is to 

57  COM(2018) 237 final (n 53) 2. 
58  On GDPR article 22, see e.g. Brkan (n 3). 

 
 
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place people at the center of the development of AI – hence the formulation, 
'human-centric  AI'.59  In  the  Strategy,  the  goals  are  described  somewhat 
differently,  in  terms  of  boosting  the  EU's  technological  and  industrial 
capacity, preparing for socio-economic changes brought by AI, and ensuring 
an appropriate ethical and legal framework.60 Understandably, the focus of 
the  policy  actions  is  on  economic  measures,  given  the  EU's  legislative 
mandate. The Strategy identifies the lack of trust and accountability as  key 
AI-related problems. The new opportunities generated by AI are contrasted 
with the possible uses of AI for 'malicious ends', whereas the challenges and 
risks are located in the 'areas of safety and liability, security (criminal use or 
attacks), bias and discrimination'.61 The proposed solution is to develop AI 
ethics  guidelines  in  collaboration  with  all  stakeholders  following  the 
European Council's original mandate.  

The  Strategy  connects  the  ethical  standards  with  the  EU  Charter  of 
Fundamental  Rights  and  the  values  listed  in  article  2  of  the  Treaty  on 
European Union: respect for human dignity, freedom, democracy, equality, 
the rule of law and respect for human rights, including the rights of persons 
belonging  to  minorities.  The  Guidelines  reflect  the  problems  identified  in 
the  Commission's  Strategy,  i.e.  the  lack  of  trust  and  accountability, 
suggesting people's mistrust would prevent the adoption of AI: 'without AI 
systems – and the human beings behind them – being demonstrably worthy 
of  trust,  unwanted  consequences  may  ensue  and  their  uptake  might  be 
hindered,  preventing  the  realization  of  the  potentially  vast  social  and 
economic benefits that they can bring'.62 It is thus claimed that the crucial 
problem related to AI is that applications would not be used, a problem that 
can be solved by increasing trustworthiness. Trustworthiness, in turn, is seen 
to be achieved by a combination of legal compliance, ethical principles, and 
technical  and  social  robustness.63  The  Guidelines  do  perceive  that  AI 

59  COM(2019) 168 final (n 14) 1. 
60  COM(2018) 237 final (n 53) 4. 
61 

Ibid. 

62  Guidelines (n 14) 4-5.  
63 

Ibid 5. 

 
 
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applications  also  present  other  risks,  although  these  are  not  further 
elaborated on.64   

Ultimately,  it  is  human  autonomy  that  is  seen  to  be  threatened.  Human 
autonomy is constituted as the protected good and the core ethical principle 
that necessitate human oversight as a safeguard: 

The fundamental rights upon which the EU is founded are directed towards 
ensuring respect for the freedom and autonomy of human beings. Humans 
interacting  with  AI  systems  must  be  able  to  keep  full  and  effective  self- 
determination  over  themselves,  and  be  able  to  partake  in  the  democratic 
process.  AI  systems  should  not  unjustifiably  subordinate,  coerce,  deceive, 
manipulate, condition or herd humans. Instead, they should be designed to 
augment,  complement  and  empower  human  cognitive,  social  and  cultural 
skills. The allocation of functions between humans  and AI systems should 
follow human-centric design principles and leave meaningful opportunity for 
human choice. This means securing human oversight over work processes in 
AI systems. AI systems may also fundamentally change the work sphere. It 
should support humans in the working environment, and aim for the creation 
of meaningful work.65 

This means that the perceived threat of AI is the loss of human autonomy, 
particularly  of  those  humans  who  find  themselves  interacting  with  AI 
systems. The proposed solutions are human-centric design and opportunities 
for  human  choice,  which  can  be  realized  through  human  oversight  of  AI 
systems.  This  proposal  implies  that  human  control  is  all  that  is  needed  to 
ensure  ethical  AI  systems.  However,  this  is  contestable  given  the  insights 
from HCI research, which demonstrated the limited capabilities of humans 
as  overseers  of  automated  systems.  Simply  put,  human  control  over 
automation often fails in practice. Furthermore, there is a more fundamental 
challenge  to  this  approach:  imposing  responsibility  for  ethical  AI  on  the 
human  controller  might  be  unreasonable  from  the  perspective  of  the 
controller's legal protection.  

Human control as the solution to AI problems becomes visible particularly 
in  the  HLEG  Guidelines,  which  present  oversight  as  being  necessary  to 

64 

65 

'While offering great opportunities, AI systems also give rise to certain risks that 
must be handled appropriately and proportionately', see ibid 4. 
Ibid 12. 

 
 
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ensure  that  'an  AI  system  does  not  undermine  human  autonomy  or  cause 
other adverse effects'.66 This formulation explicates the problem as follows: 
without  such  oversight,  the  machines  may  be  detrimental  to  human  self-
determination.  Human  control 
to  be 
comprehensive  in  order  to  be  considered  effective  protection.  The 
Guidelines explain different degrees of human oversight from step-by-step 
monitoring  in  the  form  of  human-in-the-loop  to  overall  monitoring  of 
human-in-command, noting that lower levels of human oversight should be 
accompanied by other safeguards:  

seemingly  does  not  need 

Human  oversight  helps  ensuring  that  an  AI  system  does  not  undermine 
human autonomy or causes other adverse effects. Oversight may be achieved 
through  governance  mechanisms  such  as  a  human-in-the-loop  (HITL), 
human-on-the-loop  (HOTL),  or  human-in-command  (HIC)  approach. 
HITL refers to the capability for human intervention in every decision cycle 
of the system, which in many cases is neither possible nor desirable. HOTL 
refers to the capability for human intervention during the design cycle of the 
system and monitoring the system's operation. HIC refers to the capability 
to  oversee  the  overall  activity  of  the  AI  system  (including  its  broader 
economic, societal, legal and ethical impact) and the ability to decide when 
and how to use the system in any particular situation. This can include the 
decision not to use an AI system in a particular situation, to establish levels 
of human discretion during the use of the system, or to ensure the ability to 
override  a  decision  made  by  a  system.  Moreover,  it  must  be  ensured  that 
public  enforcers  have  the  ability  to  exercise  oversight  in  line  with  their 
mandate.  Oversight  mechanisms  can  be  required  in  varying  degrees  to 
support  other  safety  and  control  measures,  depending  on  the  AI  system's 
application  area  and  potential  risk.  All  other  things  being  equal,  the  less 
oversight a human can exercise over an AI system, the more extensive testing 
and stricter governance is required.67  

Finally,  the  Guidelines  bring  forward  a  concrete  assessment  list  targeted 
towards AI practitioners, with questions meant to ensure adequate human 
oversight.  The  list  includes  a  set  of  questions  on  the  level  of  human 
involvement, identification of the human overseer and moments and tools for 
intervention,  existence  of  detection  and  response  mechanisms  for 

66 

67 

Ibid 16. 
Ibid. 

 
 
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autonomous AI systems, and the inclusion of a stop button or procedure for 
safely aborting an operation.68  

The  expert  group's  recommendations  on  human  oversight  were  included 
almost word  for word in the Commission's 2019 communication, 'Building 
Trust  in  Human-Centric  Artificial  Intelligence'.  In  addition  to  formatting 
and slight changes of wording, the Communication connects human control 
measures  with  the  adaptability,  accuracy  and  explainability  of  AI-based 
systems,  which  in  the  Guidelines  were  discussed  in  terms  of  technical  and 
social robustness and data governance.69 The Communication also contains 
a preamble to the description of human oversight as a key requirement for 
trustworthy  AI.  Finally,  the  user's  overall  wellbeing  is  highlighted  as  being 
central to the system's functionality.70 The Communication also sets out the 
next  steps  in  establishing  an  AI  framework,  which  include,  inter  alia, 
stakeholder feedback on the feasibility of the assessment list and potential 
revisions, as well as building the EU's leadership role in international policy 
settings  with  the  objective  of  creating  a  related  assessment  mechanism.  In 
addition,  more  funding  will  be  targeted  to  research  on  explainability  and 
advanced human-machine interaction.  

In  summary,  the  EU's  policy  documents  on  AI  ethics  create  high 
expectations  that  human  oversight  will  safeguard  human  autonomy  in  the 
development  and  use  of  AI  applications.  The  Commission's  Strategy 
considers the lack of trust and accountability as the main concerns associated 
with AI, whereas the expert group's Guidelines present the undermining of 
human  autonomy  as  one  of  the  main  problems  that  can  be  remedied  by 
human oversight. The Communication of 2019 repeats these concerns and, 
unlike  the  earlier  documents,  connects  required  human  control  with 
accuracy  and  explainability.  Interestingly,  the  question  of  interaction 
between humans and machines is only mentioned in the conclusions of this 
most  recent  policy  document.  Based  on  these  observations,  the  policy 
documents  reflect  the  assumption  that  human  control  constitutes  an 

68 

69 

Ibid 27. 
Ibid 17-18. 

70  COM(2019) 168 final (n 14) 4. 

 
 
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effective accountability mechanism for the protection of human autonomy 
in the face of increasing AI use.  

2.  Discovering  the  Implicit:  Human  Autonomy  as  the  Last  Stand  against  the  AI 
Tidal Wave  

As  discussed,  post-structural  policy  analysis  is  particularly  interested  in 
locating  the  silences  created  in  policy-making,  as  these  frame  the  scope  of 
what is construed as possible policy action. Policy documents typically aim to 
justify legislative action by imposing them as the right solutions to identified 
problematizations,  but  these  stances  are  ultimately  opinions  about  what 
needs  to  be  fixed.71  How  does  this  perspective  play  out  with  the  EU's  AI 
policy? What is left unsaid? I address these questions by working backwards 
from the proposed solution of human oversight, with the specific objective 
to follow to which actions and by whom the human control is extended. Who 
is the object of human oversight? 

The Commission's Strategy on Artificial Intelligence for Europe recognized 
the need to 'ensure an appropriate ethical and legal framework', suggesting 
that  the  current  framework 
is  not  sufficient  to  ensure  trust  and 
accountability. In other words, the legal and ethical framework needs fixing. 
What,  then,  are  the  proposed  solutions?  The  Commission's  proposal  is  to 
carry out as soon as possible the Commission's agenda as defined in an earlier 
policy  document,  the  Digital  Single  Market  Strategy,  including  measures 
such as enabling free flow of non-personal data 'that will be a key enabler for 
the  development  of  AI'.72  At  the  same  time,  the  quick  adoption  of  these 
measures is 'essential as citizens and businesses alike need to be able to trust 
the technology that they interact with, have a predictable legal environment 
and  rely  on  effective  safeguards  protecting  fundamental  rights  and 
freedoms'.73  

These statements reveal a two-sided and inherently conflicting perception of 
AI: on the one hand, AI is a good thing and needs to be actively enabled by 
regulatory  measures;  on  the  other,  AI  threatens  fundamental  rights  and 

See n 49. 

71  
72  COM(2018) 237 final (n 53) section 3.3. 
73 

Ibid. 

 
 
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therefore needs to be reined in with legal and ethical guidance. The general 
public's  trust,  in  turn,  is  linked  with  its  understanding  about  the  technical 
underpinnings  of  AI  systems  and  thus  explainability  of  the  system  is  a  key 
measure for solving AI-related problems:  

To  further  strengthen  trust,  people  also  need  to  understand  how  the 
technology works, hence the importance of research into the explainability of 
AI systems. Indeed, in order to increase transparency and minimize the risk 
of bias or error, AI systems should  be developed in a manner which allows 
humans to understand (the basis) of their actions.74  

This statement is built on  the assumptions that, firstly, humans are indeed 
capable of understanding complex technical systems and, secondly, that the 
human  activities  of  seeing  and  understanding  are  enough  to  protect  those 
values that are threatened by AI. Read this way, the problem with AI is also 
about people's lack of understanding that can be solved by human oversight 
which addresses this understanding.  

These  risks  are  portrayed  as  unavoidable  characteristics  of  the  current 
technologies and thus constructed as  'normal' AI-related problems. By the 
use  of  passive  language,  these  problems  are  attributed  to  the  technology 
itself, not to the software developers and system architects, to institutional 
practices or organizational and market structures. In the Strategy, legal and 
ethical  concerns  are  addressed  by  product  liability,  data  protection, 
cybersecurity and intellectual property rights. At the same time, other legal 
mechanisms like competition law, administrative and procedural law, as well 
as tax law are excluded from examination, although these fields do provide 
effective  mechanisms  to  ensure  legal  protection.  Competition  law  in 
particular could be considered, because regulation of markets is a powerful 
tool that can also be used to guide commercial AI development.75 In light of 
these  three  AI  policy  documents,  AI  problems,  it  seems,  are  problems 
created  by  the  technology,  not  by  humans,  and  these  problems  should 
primarily be addressed by product liability and data protection regimes, i.e. 
only certain areas of law. This focus on certain legal fields frames socio-legal 

74 

75 

Ibid. 
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and 
Information (Harvard University Press 2016). 

 
 
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problem solving, pushing us to address AI issues primarily within these legal 
regimes, which then diverts attention from alternative legal remedies.   

The  policy  documents  construe  risks  and  errors  of  AI  not  as  products  of 
human  action  but  of  AI  technology,  attributing  error-creating  agency  to 
technology.  This  becomes  apparent  through  the  language  employed. 
Although the need for ethical and legal frameworks raises concerns regarding 
AI being used for malicious ends, it is noticeable how passive language is still 
used: AI systems 'display intelligent behavior by analysing  their environment 
and  taking  actions  –  with  some  degree  of  autonomy  –  to  achieve  specific 
goals'.76  Similarly,  it  is  AI  technologies  that  'require  data  to  improve  their 
performance',77 not developers employing certain ML techniques; once 'they 
[AI technologies] perform well, they can help improve and automate decision 
making'.78  Active  language  is  used  only  when  technology  is  seen  to  act, 
attributing  a  sort  of  agency  to  AI.  AI  systems  are  thus  established  as 
autonomous agents that need to be controlled by humans. At the same time, 
there is a sense of urgency that reflects technological determinism: these are 
societal problems that  require legislative action immediately. This  urgency 
indicates that this is a new situation, a tidal wave of digital transformation for 
which we need to brace ourselves, dictated by the inevitability of our novel 
historical situation.  This sense of urgency resembles Ifversen's observation 
about the use of words such as 'crisis' or 'terrorism' to create necessity and 
legitimacy for policy action: 'such concepts defined for combat are used to 
frame a situation  – or rather an event  – that risks getting out of control'.79 
Because  problems  are  portrayed  as  created  by  technology  and  not  by 
economic  and  societal  structures,  AI  is  presented  as  a  novelty  and  hence 
separate from the historical continuum of earlier forms of automation. The 
lack  of  acknowledgment  of  history  also  detaches  policy  dialogue  from  the 
lessons  learned  about  the  implementation  of  information  systems  in 
organizational  decision-making  in  the  1960s  and  1980s.  This  detachment 
makes it harder to contextualize AI problems in a meaningful way.  

76  COM(2018) 237 final (n 53) 2.  
77 

Ibid. 
Ibid. 
Ifversen (n 20) 86.  

78 

79 

 
 
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Human Control over Automation 

37 

At  a  textual  level,  the  Guidelines  create  a  contrast  between  human  agency 
and the agency of AI systems, which again is established by the use of active 
language: 'AI systems should support human autonomy and decision making'; 
'AI systems should both act as enablers to democratic, flourishing and equitable 
society  by  supporting  the  user's  agency  and  foster  fundamental  rights,  and 
allow  for  human  oversight'.80  Hence,  there  is  a  silence  in  the  AI  policy 
documents  when  it  comes  to  humans.  Only  abstractions  of  humans  are 
present, the human in control, but not the humans who could be perceived as 
objects of regulation. The abstraction of human control seems to imply that 
it  is  the  closest  human  operator  who  is  implicated  in  legal  and  ethical 
protection.  Simultaneously,  the  technological  focus  ends  up  assigning 
subjectivity to AI and mystifying human capabilities as the last line of defense 
against this tide of foreign intelligence. In any case, attribution of agency to 
technology  seems  to  be  at  the  core  of  AI  problematizations.  It  is  the 
technology that needs to be subjugated.  

In the Guidelines, human agency is presented as being under threat from AI 
systems  and  human  oversight  is  proposed  as  the  solution  to  protect  this 
agency.  The  agency  of  humans  is  threatened  by  the  agency  of  technology, 
signaling that the AI systems need to be forced to allow for human oversight 
to protect the latter's autonomy. Again, the human actors are missing. AI is 
anthropomorphized  into  an  autonomous  agent  that  might  be  malicious 
towards humans: AI systems 'may harness sub-conscious processes, including 
various forms of unfair manipulation, deception, herding and conditioning, 
all  of  which  may  threaten  individual  autonomy'.81  It  is  this  agency  of 
technology that we need to be protected against and which poses a threat to 
fundamental rights and human agency, the latter of which is defined as the 
autonomy  of  the  human  user.  Similarly,  the  Communication  reflects  an 
anthropomorphization of AI systems, locating the problem in the systems' 
ability to learn, which makes them autonomous from humans,82 echoing  the 
deeply-rooted concern for the loss of control. Humans remain out of sight, 
are  hidden  from  sight:  it  is  as  if  the  AI  systems  develop  independently  to 
surpass  humans,  instead  of  programmers,  systems  architects  and  human 

80  Guidelines (n 14) 15 [emphasis added]. 
81 

Ibid 16.  

82  COM(2019) 168 final (n 14) 2. 

 
 
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supervisors actively evaluating and implementing process automation by AI 
methods.  But  ultimately,  the  threat  of  technological  agency  to  human 
autonomy  is  contained  by  human  oversight.  Despite  the  statement  that 
oversight does not need to be total and continuous, there is  no discussion on 
the implications of human oversight, whether and how human overseers are 
able  to  perform  their  oversight  tasks  nor  what  would  be  the  criteria  for 
human intervention or whether an overseer should possess some particular 
expertise.  

3. Locating Silences: Promise of Control and Missing Humans 

To summarize, the policy documents attribute autonomy and agency to AI 
systems and portray this agency as something that needs to be enabled and 
reined  in  at  the  same  time.  The  attribution  of  agency  to  AI  systems  is 
particularly  blatant  in  the  use  of  active  language:  in  the  context  of  the 
problem  representations,  only  AI  systems  are  portrayed  as  actors.  The 
technological agency is contrasted with threatened human values and rights. 
The threat, it seems, comes from the technology itself, not the developers nor 
implementing organizations. Humans remain absent except for the abstract 
formulations of human agency, autonomy and oversight that are the object 
and the subject of legal protection. Similarly, situations of shared control or 
hybridization of decision-making are not discussed, further emphasizing the 
juxtaposition  of  human  and  machines.  In  short,  the  EU  policy  documents 
reintroduce the human/machine dichotomy from the Fitts list into AI policy 
setting.  

In addition, there is an apparent assumption that decision-making has been 
and still is a human exercise, but that this is about to change. The coming of 
AI is like a force of nature and the questions that remain are how to react to 
it and how to safeguard the fundamental values that are apparently in danger. 
It  is  assumed  that  AI  systems  are  advanced  enough  to  take  independent 
action.  The  question  is  not  raised  as  to  what  AI  techniques  can  actually 
accomplish and what they cannot, nor why and how these techniques should 
be evaluated independently from other forms of automation. The fact that 
AI as such is not defined also raises the question of the extent to which these 
problematizations  reflect  the  broader  societal  discussion  on  the  perceived 
existential dangers of 'strong' general AI instead of narrow AI, which most 

 
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Human Control over Automation 

39 

current applications are. At the same time, human understanding is perceived 
to be enough to rein in this powerful technology. In the end, we are absolved 
by the triumph of human cognitive skills, capable of seeing, understanding 
and acting on machine mistakes, demonstrating that these policy documents 
mystify  the  capabilities  of  human  agency.  Ultimately,  humans  trump 
machines.  

There  are  several  silences,  most  importantly  the  surprising  absence  of 
humans,  despite  the  stated  objective  to  place  people  at  the  center  of  AI 
development.  Humans  are  present  only  as  abstractions  as  the  human  in 
control  or  the  human  whose  autonomy  is  at  risk.  These  abstractions, 
however, detach control from context. Give that it is the context that defines 
applicable law and ensuing legal mechanisms to exercise control, it remains 
unclear  how  a  human  controller  would  be  able  to  exercise  meaningful 
oversight. In this sense, it is possible that the technological focus could lead 
to  a  regulatory  standstill,  due  to  the  role  of  technological  neutrality  as  a 
central legislative technique.  

The  focus  on  the  importance  of  ethical  standards  prevents  us  from 
questioning  the  feasibility  of  soft  law  approaches  rather  than  hard  law 
regulation through binding accountability measures and market regulation. 
By  assigning  ethical  concerns  to  technological  agency,  the  discussion  is 
framed  in  terms  of  the  human/machine  dichotomy.  But  do  the  ethical 
concerns described in particular in the Strategy, such as safety and liability, 
discrimination, cyber-attacks, not also exist outside the AI context? To what 
extent are the concerns, challenges and risks described related to particular 
AI  techniques  rather  than  broader  trends  of  datafication,  standardization, 
and  automation?  And,  finally,  how  should  we  conceptualize  and  regulate 
situations of shared control over complex socio-technical systems, those in 
which human labor is inseparable from technological tools, in a way that does 
not unfairly assign responsibility to the closest human operators?83  

As  discussed  above,  the  final  step  in  the  WPR  analytical  approach  is  self-
reflexivity, which aims to make the analyzer's own problem representations 
explicit. I analyzed the three EU documents at a textual level, trying ascertain 

83  As Elish discusses, boundaries of agency become hard to pinpoint in situations of 

shared control over complex socio-technical systems. See Elish (n 16) 54. 

 
 
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whether or not the aforementioned academic discussions reflected in them. 
For example, was the shift from human/machine juxtaposition (the Fitts list) 
to  problems  of  automation  present  in  the  policy  documents  and  to  what 
extent  was  the  policy  influenced  by  the  interaction  approach?  Were  the 
subjective  ideological  roots  of  human  oversight  normalized  into  objective 
knowledge?  Where  were  the  humans  and  technical  systems  at  the  textual 
level and which human agents were recognized as influencing the ethical and 
legal concerns of AI? Where do the vague ethical concerns emerge from and 
who creates them? These questions, although critical, take as a given the fact 
that human oversight often fails in repetitive monitoring tasks84 and that the 
focus on human operators hides other human actors from sight. Based on the 
earlier research, the analysis built on the assumption that human oversight 
refers  primarily  to  operators  not  systems  designers,  architects,  and 
developers. However, the policy documents did not reflect this assumption, 
instead  describing  human  agency  only  in  abstract  terms.  On  close  critical 
reading,  the  absence  of  human  actors  becomes  apparent  and  this  silence 
further  draws  attention  to  the  conspicuous  use  of  passive  language,  which 
emphasizes the agency attributed to technology.  

As my analysis was motivated by the concept of human control as a solution 
to AI problems and the observation of active/ passive language, I focused on 
relations  between  technical  systems  and  human  agents.  Alternative 
approaches might focus on relations between different policy measures and 
their  respective  fields  of  law  or  discuss  the  economic  agenda  advocated 
particularly by the Commission. It should be noted, however, that inevitably 
there are other problem representations in these documents. As Bacchi and 
Goodwin note:  

it is highly likely that a WPR analysis may well need to be applied more than 
once in any particular applications. This is because problem representations 
tend to lodge or 'nest' one within the other.85  

The need for repeated analysis of problematizations may become particularly 
vital  when  the  EU's  approach  to  AI  governance  is  expanded  from  soft  law 
guidelines to hard law instruments.  

84 

See e.g. Bainbridge (n 29). 
85  Bacchi and Goodwin (n 50) 24.  

 
 
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41 

IV. THE SUPREMACY OF THE HUMAN OVERSEER: HUMAN AGENCY AS 
JUSTIFICATION 

Based on these observations, human agency, in the form of varying levels of 
human  oversight,  is  portrayed  as  a  central  tool  for  overcoming  the  ethical 
concerns  and  risks  associated  with  AI  systems,  regardless  of  the  obvious 
limitations of human capabilities in monitoring automation. In the EU's AI 
policy,  human  decision-making  is  contrasted  with  algorithmic  decision-
instead  of 
making,  thus 
invoking  the  human/machine  dichotomy 
collaboration 
in  socio-technical  systems.  Through  the  process  of 
juridification,  the  notion  of  human  oversight  becomes  a  legal  concept, 
binding it to the internal rationality of law. This in turn limits the scope for 
critique: law only accepts critique when it is framed in terms law understands. 
Simply put, the dichotomy becomes embedded in legal doctrine and frames 
future socio-legal discussion.  

The human control approaches reflect the assumed need to engage humans 
in algorithmic decision-making in order to ensure fairness and, ultimately, to 
address fears associated with automation and machines. Human oversight is 
about  controlling  unknowns,  particularly  unknowns  of  the  technological 
variety.  In  this  sense,  human  oversight  as  control  over  technology  reflects 
something  almost  aspirational,  a  source  of  trust  in  the  face  of  uncertainty. 
This promise of control is not simply about the feasibility of human oversight 
over  automation,  which  has  the  obvious  shortcomings  discussed  above. 
Could it be that human oversight carries this promise of control particularly 
because  the  fears  and  risks  are  attributed  to  technology,  not  the  humans? 
This would suggest that humans are 'in the loop' to provide legitimacy, which 
is not necessarily linked to the practical feasibility of human oversight. Given 
this  justificatory  dimension  of  human  agency,  the  feasibility  of  these 
approaches  should  be  critically  assessed  before  they  are  implemented  as 
governance models, given that they may not in reality provide the solutions 
to  the  implicit  problematizations.  Instead,  assigning  problem-solving 
capabilities to human intervention might lead us astray as human oversight 
enables us to maintain law's 'human-facedness'.  

Why then, despite the limitations of human control and its connection with 
the  legal  liability  regime,  do  we  still  maintain  the  expectation  that  human 
input in decision-making is fundamental? It seems that this emphasis reveals 

 
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something relevant about law's self-reflection: a connection between human 
agency, legitimacy of decision-making, and social expectations of fairness.86 
The legal system produces 'human-faced' law, conceptualizing law in terms of 
human agents, which the problematizations around ADM reveal. However, 
by juxtaposing machines and humans we seem to imply that ADM systems 
are somehow fundamentally different decision-making mechanisms. But as 
the  algorithmic  bias  discussion  demonstrates,  human  subjectivity  becomes 
embedded in ADM systems, making them, in many ways, as biased, arbitrary 
and  subjective  as  human-driven  decision-making  albeit  implemented  on  a 
different level. Do we still unconsciously expect our technological tools to be 
less subjective than we are? It seems that we often still assign objectivity to 
technology and feel betrayed when our expectations are not met.  

Ultimately, however, human subjectivity wins against automation, as human 
oversight  seems  to  imply.  The  strong  preference  towards  human  control, 
despite its limitations, suggests a deeper connection between human agency 
and the legitimacy of decision-making. In this sense, the policy documents 
use human control to justify the increase of automation. This reading echoes 
Elish's notion of humans as moral crumple zones and Jasanoff's pretensions 
of control, referred to above. In this sense, the emphasis on human control as 
the  right  policy  solution  for  fundamental  rights  issues  linked  to  ADM 
provides a particularly interesting viewpoint to the presumed socio-legal and 
regulatory challenges of AI.  

There is a sense of urgency about AI presented in the policy documents, a call 
for  action,  which  still  boils  down  to  voluntary  soft  law  instead  of  hard  law 
approaches. The emphasis on soft law may seem surprising, as the limitations 
of  voluntary  implementation  are  obvious.  If  the  urgency  portrayed  in  the 
guidelines is justified, why then only soft law? The chosen soft law strategy 
may be explained by the division of labor, as the President of the European 

86 

Self-evidently  conceptions  of  fairness  are  very  much  dependent  on  individuals, 
contexts,  disciplines,  fields,  and  theoretical  backgrounds.  On  quantitative 
definitions see, Hutchinson and Mitchell (n 7); on human perceptions see e.g. Nina 
'Human 
Grgic-Hlaca,  Khrisna  Gummadi,  Elissa  Redmiles,  Adrian  Weller, 
Perceptions  of  Fairness  in  Algorithmic  Decisions  Making:  A  Case  Study  of 
Criminal Risk Prediction' (Proceedings of the 2018 World Wide Web Conference. 
International  World  Wide  Web  Conferences  Steering  Committee,  2018) 
<https://dl.acm.org/citation.cfm?id=3186138> accessed 23 August 2019.  

 
 
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Commission,  Ursula  von  der  Leyen,  intends  to  propose  a  comprehensive 
European  approach  to  AI  regulation  in  her  first  100  days  in  office  during 
spring 2020.87 Nonetheless, the policy documents suggest that the problem 
with AI is not the lack of a legal framework as such but instead the more vague 
notion  of  an  independent  artificial  agency.  Perhaps  the  importance 
attributed to human input reflects the idea that legal decision making should 
not  be  about  automated  information  processes  but  about  processes  that 
produce justification and legitimacy. Perhaps these policy statements come 
with a promise for renewed interest in the ritualistic elements and societal 
values  present  in  legal  decision  making  or,  put  another  way,  in  conflict 
management, the production of justification through procedural structures.  

Accountability  mechanisms  built  on  the  assumption  of  a  supreme  human 
overseer are inherently flawed, if adopted without criticism. Such approaches 
can embed and reinforce the implicit human/machine dichotomy and mystify 
human agency. But it should be noted that the emphasis on human agency 
may  serve  a  purpose  outside  monitoring  automation,  namely  in  justifying 
legal decisions. The importance attributed to humans in automation is not 
arbitrary  but  instead  reflects  the  legal  system's  foundational  concepts  and 
ideologies that are built on anthropocentricity. In other words, juxtaposing 
algorithmic and human decision-making reveals law's self-reflection on what 
constitutes  legal  decision-making.  Simply  put,  law's  acknowledgement  of 
legal agents capable of decisions is limited to humans or fictions of human 
agents  such  as  organizations  that  are  conceptualized  as  legal  (although  not 
natural)  persons.  Following  this,  justification  of  decision-making  has 
traditionally  been  connected  to  human  agency  even  when,  in  practice, 
decisions are arrived at through intra-organizational processes. In this sense, 
human control over automation can be seen simply as another formulation of 
human justification.  

This  analysis  has  attempted  to  demonstrate  that  problematizations  do 
matter, perhaps more so in discussions concerning technological governance 

87  Ursula  von  der  Leyen,  'A  Union  That  Strives  for  More  My  Agenda  for  Europe' 
<https://ec.europa.eu/commission/sites/beta-political/files/political-

(2019) 
guidelines-next-commission_en.pdf> accessed 27 November 2019. 

 
 
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the  WPR  approach 

than  in  other  fields  less  plagued  by  misplaced  metaphors.88  It  is  not  the 
objective  of 
to  provide  alternative  policy 
recommendations  but  instead  to  provide  tools  for  critical  analysis  and  to 
enable egalitarian politics.89 By employing measures of critique, we are able 
to  open  the  door  to  critical  examination  of  automation  of  legal  decision-
making,  the  role  played  by  human,  non-human  and  hybrid  actors  in 
justification  production,  and  ultimately,  the  feasibility  of  anthropocentric 
legal  concepts  to  address  this  hybridisation.  We  can  call  attention  to  the 
justification  of  decisions  and  the  legitimacy  of  decision-making  processes 
and  examine  what  exactly  changes  through  implementation  of  ADM 
systems.  Finally,  the  promise  of  this  approach  lies  in  a  more  nuanced 
understanding  of  how  decisions  come  about.  After  acknowledging  the 
fabricated  nature  of  the  problems  associated  with  ADM,  we  can  start 
thinking  about  meaningful  partnerships  between  human  agents  and  the 
automation of legal decision-making. 

V. CONCLUSION: IMPLICATIONS FOR AI POLICY AND SOCIO-LEGAL 
RESEARCH  

What implications follow from this analysis of the EU's AI policy focus on 
human control over automation? Two particular future avenues for analysis 
emerge.  Firstly,  what  can  and  should  we  regulate  and  how  can  socio-legal 
scholarship facilitate the development of new effective regulatory strategies? 
As  discussed,  there  is  an  inherent  tension  between  technology-oriented 
policy  and  the  principle  of  technological  neutrality  as  guiding  legislative 
strategy.  This  tension  needs  to  be  addressed  if  we  want  to  pursue 
technological  governance  from  an  AI-specific  perspective.  The  focus  on 
technology may also be problematic due to the terminological ambiguity of 
AI and a significant theoretical issue relates to the legal system's limited focus 
on humans as objects of regulation. Difficult policy choices become entwined 

88 

See  e.g.  Sheldon  Ungar,  'Misplaced  Metaphor:  A  Critical  Analysis  of  the 
"Knowledge  Society"  (2003)  40(3)  Canadian  Review  of  Sociology  331,  331-347; 
Marinus Ossewaarde, 'Digital Transformation and the Renewal of Social Theory: 
Unpacking  the  New  Fraudulent  Myths  and  Misplaced  Metaphors'  (2019)  146 
Technological Forecasting and Social Change 24, 24-30. 

89  Bacchi and Goodwin (n 50) 25.  

 
 
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Human Control over Automation 

45 

with  the  need  for  critical  socio-legal  scholarship:  should  we  forego  the 
principle  of  technological  neutrality  or  should  we  hold  on  to  law's 
anthropocentricity?  What  exactly  would  these  choices  entail?  If  we  stick 
with regulating human behavior, what criteria should be used to identify the 
'human' in  complex  socio-technical systems? In any  case, discussion of the 
objectives of AI regulation is unavoidable. To this end, a careful and context-
specific analysis of the current legislative framework is needed to understand 
better  whether  existing  legal  safeguards  possess  enough  interpretative 
flexibility to address the problems related to AI in the policy context. Such 
an  examination  also  needs  to  address  the  efficiency  of  administrative  and 
procedural safeguards beyond human control and contextualize the current 
debate within the broader historical development from the introduction of 
standards  to  data-driven  automation  of  legal  decision-making  processes 
through  information  systems.  If  regulation  is  pursued,  special  attention 
should be paid to the creation of accountability mechanisms in a manner that 
does  not  impose  unrealistic  expectations  on  human  operators  but  instead 
pursues a more rigorous interaction design. If we ignore the hybridization of 
legal  decision-making  that  ADM  models  impose,  there  is  a  danger  of 
assigning  human  decision  makers  the  role  of  rubber-stampers  with 
problematic consequences for legitimacy and justification. 

Secondly, policy debates around AI ethics provide an interesting context in 
which  to  discuss  the  relationships  between  law,  politics,  and  ethics,  and 
reveals a way to examine the juridification of technological governance from 
soft law to hard law. As discussed, soft law guidelines are bound to frame the 
societal debate concerning AI challenges and their proposed solutions may 
have  normative  consequences  in  shaping  future  hard  law  instruments.  The 
juridification of such concepts, i.e. their translation into binding concepts of 
positive  law,  also  disguises  the  heterogenous  value-laden  and  ideological 
choices  present  in  the  political  creation  of  AI  ethics  guidelines.  The 
juridification  binds  concepts  established  in  policy-making  to  the  legal 
sphere's  internal  perspective.  This  process  reflects  the  long-standing 
distinction between the political and legal systems and their separate societal 
functions,  built  on  the  idea  that  the  political  system  debates  societal 
objectives  and  establishes  a  compromise  in  the  form  of  legislation,  after 
which  the  legal  system  takes  over  its  application  and  interpretation.  This 
means  that  within  the  legal  system  there  is  limited  space  for  fundamental 

 
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{Vol. 12 No. 1 

critique  about  the  acceptability  of  legislative  intent.  In  other  words,  the 
translation from politics to law limits the grounds on which these concepts 
can  be  criticized:  from  the  legal  system's  normative  view,  only  immanent 
critique preserving law's internal rationality is recognized as valid.90  

What  makes human control over automation such a  tempting  solution for 
digital  technologies  is  its  relatively  easy  implementation.  Human  control 
comes with the promise of a relatively simple and operational way to address 
AI-related  issues:  to  operationalize  human  control  both  within  the  legal 
system  and  software  development  requires  relatively  easy  political  choices 
that  can  be  met  by  establishing  a  legal  right  to  human  oversight  and  then 
creating  technical  design  solutions  for  implementing  this  right  within  the 
technological  architecture.  Especially  if  the  alternative  is  to  engage  in 
grueling societal debates over the dynamics of technological change and the 
critical analysis of existing societal power imbalances, such solutions provide 
attractive  and  straightforward  policy  actions.91  But  perhaps  the  latter  is 
exactly what is needed. To better understand the complexities and societal 
issues related to the ongoing algorithmization and to assess different policy 
options, it is necessary to broaden the discussion from the current focus on 
technology and ethics to discussions about societal structures and law.  

90  On immanent critique, see Kaarlo Tuori,  Critical Legal Positivism (Ashgate 2002) 
29–30. See also Riikka Koulu,  Law, Technology, Dispute Resolution: Privatisation of 
Coercion (Routledge 2019) 37.  

91  Cf. Kenneth C. Laudon, Computers and Bureaucratic Reform: The Political Functions 

of Urban Information Systems (John Wiley & Sons 1974) 52-53. 

 
 
 
FARM ANIMAL WELFARE UNDER SCRUTINY: 
ISSUES UNSOLVED BY THE EU LEGISLATOR 

Luca Leone* 

In  the  European  Union  (EU)  innovation  society,  animal  welfare  has  reached  its 
normative  status,  together  with  the  increased  ethical  concerns  of  citizens  and  civil 
society  in  relation  to  animal  welfare  and  dignity.  However,  several  problems  are 
impeding welfarism from gaining full traction on the European stage. This paper aims 
at scrutinizing some of those legal problems, using the ongoing (2019) CAP reform and 
labelling issues as case studies. Is the process of the CAP reform in line with the aim of 
fully integrating farm animal welfare into EU agricultural policy? Is animal welfare 
labelling gaining ground as an ethical-legal tool that certifies the achievement of high 
standards in livestock farming? These are the questions explored in this contribution. 
Both a historical perspective of farm animal welfare in Europe and an evaluation at 
the international level will enrich their analysis. The core argument of this study posits 
that legal answers to the CAP post-2020 and to animal welfare labelling schemes can 
legitimate a more sustainable model of EU agriculture. What is needed is a model of 
agricultural  practices  capable  of  aligning  citizens'  interests  with  the  EU  animal 
welfare strategy 2012-2015, while enhancing and strengthening the Union's normative 
approach to animal dignity. 

Keywords:  Animal  welfare,  CAP,  Labelling,  Private  Standards,  TBT 
Agreement 

TABLE OF CONTENTS 

I. INTRODUCTION .................................................................................................. 48 

II. A MATTER OF WELFARE .................................................................................. 54 

III. TOWARDS THE CAP POST-2020 .................................................................... 59 

IV. ANIMAL WELFARE STANDARDS AND LABELLING ....................................... 65 

* 

Researcher – Università Cattolica del Sacro Cuore – Faculty of Business and Law –  
Piacenza (Italy) – luca.leone@unicatt.it. My thanks go to the anonymous reviewers 
for their precious suggestions and helpful comments, which have further developed 
my thinking in reshaping the content of this paper. All errors are my own. 

EJLS 12(1), April 2020, 47-84 

 doi:10.2924/EJLS.2019.017 

 
 
 
  
 
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1. On the Role of Standards ........................................................................................ 66 

2. Labelling Animal Welfare Standards..................................................................... 71 

V. FINAL REMARKS ................................................................................................ 80 

I. INTRODUCTION 

Since  the  last  decade  of  the  20th  century,  the  institutions  of  the  European 
Union  (EU)  have  always  sought  –  mostly  through  conventions,1  as  well  as 
horizontal2  and  species-specific  legislation3  –  to  efficiently  deal  with  the 
welfare of farm animal species. In doing so, Europe has tried to tackle many 
of  the problems  related to it:  the  protection  of laying  hens  kept in battery 
cages, transport measures, the welfare of chickens kept for meat production, 
housing  conditions,  the  traceability  of  sheep  and  goats  and  so  on.  This 
assortment  of  rules  was  not  included  among  the  EU's  core  values  and 
objectives set out in Articles 2–3 TEU.4 Instead, it was adopted on the basis 

1 

2 

3 

4 

See  The  European  Convention  for  the  protection  of  animals  kept  for  farming 
purposes  (ETS  No.  87)  of  1976,  revised  in  1992  (ETS  No.  145);  the  European 
Convention for the protection of animals during international transport (ETS No 
65)  of  1968,  revised  in  2003  (ETS  No  193);  the  European  Convention  for  the 
protection of animals for slaughter (ETS No 102) of 1979. 
Council Directive 98/58/EC of 20 July 1998 concerning the protection of animals 
kept for farming purposes [1998] OJ L 221/23. 
For  an  overview,  see  Paige  M. Tomaselli,  'Detailed  Discussion  of  International 
Comparative  Animal  Cruelty  Laws'  (Animal  Legal  and  Historical  Center  2003) 
<https://www.animallaw.info/article/detailed-discussion-international-
2019;  Nicholas 
accessed 
comparative-animal-cruelty-laws> 
K. Pedersen,  'Detailed  Discussion  of  European  Animal  Welfare  Laws  2003  to 
Present:  Explaining  the  Downturn'  (Animal  Legal  and  Historical  Center  2009) 
<https://www.animallaw.info/article/detailed-discussion-european-animal-welfare 
-laws-2003-present-explaining-downturn>  accessed  22  February  2019;  Peter 
Stevenson,  'European  Union  Legislation  on  the  Welfare  of  Farm  Animals 
(Compassion 
<https://www.ciwf.org.uk/ 
media/3818623/eu-law-on-the-welfare-of-farm-animals.pdf>  accessed  22  February 
2019. 
This legal gap is discussed by Diane Ryland and Angus Nurse, 'Mainstreaming after 
Lisbon:  Advancing  Animal  Welfare  in  the  EU  Internal  Market'  (2013)  22(3) 
European Energy and Environmental Law Review 101. 

22  February 

in  World 

Farming 

2012), 

 
 
 
 
 
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Farm Animal Welfare under Scrutiny 

49 

of other Treaty objectives, such as the common agricultural policy (CAP), the 
internal  market,  the  environmental  policy  and  the  common  commercial 
policy.  Simultaneously,  animal  sentience  gained  its  normative  status  in 
Protocol No. 33, annexed to the 1997 Treaty of Amsterdam.5 Later, with the 
adoption  of  the  Lisbon  Treaty,  the  recognition  of  non-human  animals 
(hereafter  'animals')  as  sentient  beings  has  been  embedded  in  Article  13 
TFEU.6 

In  spite  of  those  legal  advancements,7  however,  the  institutionalization  of 
cruel practices on farm animals, the scarce regulation of living conditions for 
some widely-kept animal species (e.g. dairy cows, rabbits, ducks, and turkeys), 
and the complex problems of the low enforcement of legislation8 have been 
obstacles for welfarism to gain ground within Member States. The welfare of 
several  farmed  animals,  such  as  broiler  chickens,  cows,  rabbits,  trout  and 
salmon,  continues  to  be  undermined  by  problems  related  to  space  and 
resources,9 while lacking in fulfilment of animals' needs.10  

7 

8 

6 

5  On  this  subject,  see  Tara  Camm  and  David  Bowles,  'Animal  Welfare  and  the 
Treaty of Rome—A Legal Analysis of the Protocol on Animal Welfare and Welfare 
Standards in the European Union' (2000) 2 Journal of Environmental Law 197. 
Article 13 TFEU states: 'In formulating and implementing the Union's agriculture, 
fisheries, transport, internal market, research and technological development and 
space policies, the Union and the Member States shall, since animals are sentient 
beings, pay full regard to the welfare requirements of animals, while respecting the 
legislative or administrative provisions and customs of the Member States relating 
in particular to religious rites, cultural traditions and regional heritage'. 
See Jessica Vapnek and Megan Chapman, 'Legislative and Regulatory Options for 
Animal Welfare' (FAO 2010).  
For a deep analysis of these issues, see European Parliament, 'Animal Welfare in 
the European Union', Policy Department C: Citizens' Rights and Constitutional 
Affairs (European Union 2017). 
Ibid 51ff. 
In this respect, a new set of standards – the Better Chicken Commitment  – has 
been promoted by the Royal Society for the Prevention of Cruelty to Animals (UK 
RSPCA)  and  other  groups  to  spread  across  food  businesses  the  use  of  slower 
growing  breeds  and  to  guarantee  chicken  health  and  welfare  by  assuring  more 
space,  natural  light  and  more  humane  methods  of  slaughter.  See  RSPCA,  'One 
billion  chickens  are  slaughtered  for  meat  in  the  UK  each  year'  (RSPCA  2019) 
accessed  05 
<https://www.rspca.org.uk/getinvolved/campaign/cheapchicken> 
March 2019. 

10 

9 

 
 
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Scholarly  criticism  has  highlighted  three  significant  problems  stemming 
from the EU's progressive legislation on animal welfare. First, a slowdown in 
the period since 2003 in four distinct areas: the failure to initiate bold new 
normative  patterns;  problems  with  the  enforcement  of  existing  laws;  the 
Court  of  Justice  of  the  EU's  (CJEU)  lenient  approach  when  ruling  on 
regulation in the area of animal protection; and EU legislatures' shift towards 
a  crackdown  on  animal  extremists.11  Second,  the  normative  paradox  that 
clearly  emerges  from  the  changes  that  animal  welfare  legislation  has  gone 
through, where rules on the commercial use of animals – relying on the image 
of animals as products12 – coexist with rules conveying moral respect for, and 
protection of, animals as sentient beings.13 Finally, the acknowledgment that 
most  scientific  reports  on  animal  welfare  produced  by  the  European  Food 
Safety Authority (EFSA)14 have not been implemented in legislation.15 

Against this backdrop, this paper aims at scrutinizing further legal problems 
that are affecting the EU's normative approach to farm animal welfare, using 
the  ongoing  (2019)  CAP  reform  and  labelling  issues  as  case  studies.  The 
reasons for focusing on these issues are related to their potential contribution 
to  a  better  implementation  of  Article  13  TFEU  and  the  increased  ethical 
concerns of consumers and civil society in relation to animal sentience and 

11 

Pedersen (n 3). 

12  This  conception  recalls  the  Kantian  thought  of  animals  as  'instruments'  in  the 
hands of humans for human ends (Immanuel Kant, Lectures on Ethics (trans. Louis 
Infield) (Harper Torchbooks 1963). 

13  Katy Sowery, 'Sentient Beings and Tradable Product: The Curious Constitutional 
Status of Animals under Union Law' (2018) 55 Common Market Law Review 55. 
14  On the role played by the Authority in the activities related to animal welfare, see 
Franck  Berthe,  Philippe  Vannier,  Per  Have,  Jordi  Serratosa,  Eleonora  Bastino, 
Donald  Maurice  Broom,  Jörg  Hartung  and  James  Michael  Sharp,  'The  Role  of 
EFSA  in  Assessing  and  Promoting  Animal  Health  and  Welfare'  (2012)  10  EFSA 
Journal 19. 
For  example,  EFSA,  'The  Welfare  Risks  Related  to  the  Farming  of  Sheep  for 
Wool,  Meat  and  Milk  Production'  (2014)  12(12)  EFSA  Journal  1;  EFSA,  'The 
Welfare  of  Cattle  Kept  for  Beef  Production  and  the  Welfare  in  Intensive  Calf 
Farming Systems' (2012) 10(5) EFSA Journal 2669. 

15 

 
 
 
 
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Farm Animal Welfare under Scrutiny 

51 

dignity16  –  as  they  emerge  from  the  End  the  Cage  Age  European  Citizens' 
Initiative.17 

The  new  CAP  post-2020  could  play  a  key  role  in  the  support  for  a  higher 
commitment to animal welfare, in the pursuit of a sustainable production as 
promoted  by  the  United  Nations'  Intergovernmental  Panel  on  Climate 
Change  (IPCC)  in  its  2019  report  on  global  land  use  and  agriculture.18 
Likewise,  using  labels  to  address  the  ethical  factors  surrounding  the 
relationship  between  animal  treatment  and  public  concerns  might  provide 
appropriate  protection  of  the  interests  at  stake  and  reach  higher  levels  of 
standards,  while  increasing  awareness  and  producing  improvements  in 
farming practices, consumer choices and legislation. 

In this respect, it may not come as a surprise that after the experience gained 
through  the  2006-2010  Action  Plan  on  the  Protection  and  Welfare  of 
Animals,19  the  current  EU  2012-2015  strategy20  on  the  matter  is  following 
lines of actions aimed at,  inter alia, optimising synergies with the CAP and 

16  Rebeca  García  Pinillos,  Michael  Appleby,  Xavier  Manteca,  Freda  Scott-Park, 
Charles  Smith  and  Antonio  Velarde,  'One  Welfare-A  Platform  for  Improving 
Human and Animal Welfare' (2016) 179 Veterinary Record 412. 

17  Compassion in world farming, 'End the Cage Age' (Compassion in world farming 

18 

2019) <https://www.endthecageage.eu/> accessed 14 August 2019. 
IPCC, 
'IPCC  Special  Report  on  Climate  Change,  Desertification,  Land 
Degradation, Sustainable Land Management, Food Security, and Greenhouse Gas 
Fluxes  in  Terrestrial  Ecosystems  Summary  for  Policymakers  Approved  Draft' 
(WMO/UNEP  2019)  <https://www.ipcc.ch/site/assets/uploads/2019/08/Edited-
SPM_Approved_Microsite_FINAL.pdf > accessed 14 August 2019. 

19  European Commission, 'Communication from the Commission to the European 
Parliament,  the  Council  on  a  Community  Action  Plan  on  the  Protection  and 
Welfare of Animals 2006-2010' COM(2006) 13 final. 

20  European Commission, 'Communication from the Commission to the European 
Parliament, the Council and the European Economic and Social Committee on the 
European  Union  Strategy  for  the  Protection  and Welfare  of  Animals  2012-2015' 
COM(2012) 6 final/2. The EC’s silence on the repeated requests made by the EP for 
a  new  and  ambitious  animal  welfare  strategy  for  the  2016-2020  period  (see 
European Parliament, ‘Resolution of 26 November 2015 on a New Animal Welfare 
Strategy  for  2016-2020’  (2015/2957(RSP));  European  Parliament,  ‘Report  on  a 
European  One  Health  Action  Plan  against  Antimicrobial  Resistance  (AMR)’ 
(2017/2254(INI)),  Point  57)  is  emblematic  of  the  impasse  underpinning  the  EU 
approach to the matter. 

 
 
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providing the public with appropriate information. Both of them are meant 
and  boosted  as  significant  initiatives  that  can  strongly  enhance  the 
competitiveness of EU agriculture in the near future. Indeed, as the strategy 
itself affirms,  

the  diversity  of  farming  systems,  climatic  conditions,  land  realities  in  the 
different Member States have led to considerable difficulties in agreeing on 
unitary  rules  and  even  more  difficulties 
in  ensuring  their  correct 
implementation.21 

However,  as  intricate  as  these  subjects  can  be,  they  bring  some  significant 
questions to the forefront. Is the process of the CAP reform in line with the 
aim  of  fully  integrating  farm  animal  welfare  into  EU  agricultural  policy?  Is 
animal welfare labelling gaining ground as an ethical-legal tool that certifies 
the  achievement  of  high  standards  in  livestock  farming?  These  are  the 
questions explored in this contribution.  

To  this  end,  a  historical  overview  of  farm  animal  welfare  in  Europe  will 
forerun  the  analysis.  This  outlook  will  help  identify  the  theoretical 
underpinnings of EU legislation, in order to delineate the legal basis that the 
CAP agenda and rules on standards and labelling rely on. In the face of this 
scenario,  section  III  will  scrutinize  the  main  changes  the  CAP  policy  has 
been going through, by showing positive and negative aspects concerning the 
protection  of  farm  animal  welfare  as  they  stem  from  the  European 
Parliament's (EP) ongoing work. 

Section IV will then focus attention on the relationship and the correlated 
problems  existing  between  the  simultaneous  application  of  private  and 
governmental animal welfare standards. In addressing this issue, the extent 
to which private standards have the capacity to fuel a 'race to the top'22 will 
be  analysed,  with  it  now  being  generally  understood  that,  in  certain 
circumstances  at  least,  they  may  become de  facto  mandatory.  Hence,  there 
will be scope to expand the discussion on labelling to the international arena, 
with specific reference to the rules of the World Trade Organization (WTO). 

21 

Ibid 4. 

22  Yoshiko Naiki, 'The Dynamics of Private Food Safety Standards: A Case Study on 
the  Regulatory  Diffusion  of  GLOBALG.A.P.'  (2014)  63  (1)  International  & 
Comparative Law Quarterly 137. 

 
 
 
 
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Farm Animal Welfare under Scrutiny 

53 

In particular, attention will be paid to the potentially confusing plethora of 
animal  welfare  labels,  including  consideration  as  to  whether  harmonising 
measures might be appropriate so as to secure an EU-wide label, akin to that 
for organic produce. As for the international scenario, an elaboration on the 
opportunities  and  constraints  imposed  by  the  Agreement  on  Technical 
Barriers to Trade (TBT) will be presented, given that the distinction between 
'technical regulations' and 'standards' under the TBT Agreement are relevant 
for the present purposes. In the international world trade context, moreover, 
it will be illustrated how the EU has shown a more animal welfare-oriented 
approach there than it has domestically. 

The following discussion will demonstrate that international trade law and 
private  standards  are  beginning  to  encourage  dialogue  on  Union  matters 
related  to  animal  welfare  labelling,  by  building  powerful  "bridges  of 
knowledge"  between  public  authorities  and  civil  society.  To  conclude,  the 
final argument of this contribution posits that legal answers to the CAP post-
2020 and to animal welfare labelling schemes  – as suggested in sections III 
and  IV  of  this  paper  –  can  legitimate  a  more  sustainable  model  of  EU 
agriculture.  Indeed,  the  concept  of  sustainability  entails,  among  its 
multifaceted traits,23 a model of agricultural practices meant as a supplier of 
public goods and characterized by a peculiar relationship with the search for 
quality  –  such  as  the  demand  for  the  spread  of  organic  farming  methods. 
Sustainability, moreover,  is also correlated to  a farming  method capable  of 
aligning  citizens'  interests  with  the  EU  legal  and  policy  framework  on 
welfarism,  while  enhancing  and  strengthening  the  Union's  normative 
approach to animal dignity.24 Such a model of EU agriculture can make the 
humanist and animalist perspectives cohesive in co-producing a more widely 
shared vision of fair and environmentally sustainable livestock farming in the 
years to come. 

23  On the multifaceted nature underpinning the concept of sustainability, see Marc 
A. Rosen, 'Issues, Concepts and Applications for Sustainability' (2018) 3 Glocalism-
Journal of Culture, Politics and Innovation 1. 

24  On  the  potential  underpinning  and  surrounding  the  concept  of  "dignity"  in  its 
relationship  with  animal  welfare  issues,  see  Anne  Lansink,  'Technological 
Innovation and Animal Law: Does Dignity Do the Trick?' (2019) 10(1) European 
Journal of Risk Regulation 80. 

 
 
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II. A MATTER OF WELFARE 

From the 1976 Council of Europe Convention25 to Directive 98/58/EC on the 
protection  of  farm  animals,26  EU  legal  documents  on  animal  welfare  have 
been anchored on a vision of animal welfare science27 that was far from the 
developments successively brought to light by applied ethology,28 cognitive 
science29  and  neuroscience.30  These  various  fields  of  study  have  shaped 
animal ethics  – that is the moral  reflection  concerning animals and  human 
beings – by overcoming the classification of animals as property.31 In the light 
of  the  similarity  among  beings  shown  by  genetics,  biological,  evolutionary 
and  behavioural  sciences,  artificial  classifications  of  species  have  been 
opposed by the consideration that 'the real world consists only of individuals 
who are more or less closely related to each other by virtue of descent from 
one  or  more  common  ancestors'.32  However,  notwithstanding  its  growing 
appeal,  animal  sentience  continues  to  be  the  fulcrum  of  inexhaustible 
quérelles,  which  oppose  the  theories  advocating  against  all  forms  of  animal 
exploitation in favour of arguments supporting the use of animals when they 
are treated humanely.  

This  last  perspective  on  the  animal  condition  comes  from  the  techno-
scientific domain, where the term 'animal welfare' has become an indicator 
of a characteristic of the individual animal as a potentially measurable state 
varying from the good or positive to the poor or negative.33 Defined in these 

25  Council of Europe, 'European Convention for the Protection of Animals kept for 

Farming Purposes' (Strasbourg 1976). 

26  Council Directive 98/58/EC of 20 July 1998 concerning the protection of animals 

kept for farming purposes [1998] OJ L 221/23. 
For some examples in this regard, see European Parliament (n 8) 16. 

27 

28  Harold W. Gonyou, 'Why the Study of Animal Behavior Is Associated with the 

Animal Welfare Issue' (1994) 72(8) Journal of Animal Science 2171. 

29  Marc Bekoff, Colin Allen and Gordon M. Burghardt (eds),  The Cognitive Animal: 

Empirical and Theoretical Perspectives on Animal Cognition (MIT Press 2002). 

30  Robert Francescotti, 'Animal Mind and Animal Ethics: An Introduction' (2007) 11 

The Journal of Ethics 239. 

31  Gary L. Francione, Animals, Property and the Law (Temple University Press 1995). 
32  Robin  I.M.  Dunbar,  'What's  in  a  Classification?'  in  Paola  Cavalieri  and  Peter 

Singer (eds), The Great Ape Project (St. Martin's Press 1993) 110. 
33  Donald M. Broom, Sentience and Animal Welfare (CABI 2014). 

 
 
 
 
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Farm Animal Welfare under Scrutiny 

55 

terms, which take into account animals' feelings and needs, together with the 
possibility for animals to be in harmony with their environment, welfarism 
has acquired its formal affirmation in the ethical and legal domain. As such, 
it acts in today's Europe as an instrument of co-production between a value-
laden science and a science-based ethics.34  

This  has  happened  for  two  reasons.  Firstly,  the  core  structure  of  the  EU 
regulatory framework on animals refers directly to citizens' knowledge and 
values  on  the  matter.  Secondly,  there  has  been  a  rise  of  interest  and 
commitment  to  the  'EU  knowledge  society'35  about  animal  welfare,  which 
includes  the  use  of  expert  knowledge,  increased  ethical  awareness,  and 
increased legal protection of animals. 

This social construction of farm animal welfare36 has turned welfarism into a 
matter of societal choice.37 It finds its roots in the criticism strongly advanced 
in the 1960s by Ruth Harrison's famous book Animal Machine,38 which argues 
against  the  detention,  treatment,  and  suffering  of  food-producing  animals 
used in intensive farming. After the investigation commissioned in 1965 by 
the  British  Government  into  the  problems  related  to  intensive  livestock 
systems,  the  inquiry  committee  suggested  what  would  become  the  best-
known  'Five  Freedoms',  as  later  modified  by  the  Farm  Animal  Welfare 
Council (FAWC).39 The established freedoms from hunger and thirst, from 
discomfort,  from  pain,  injury  or  disease,  to  express  normal  behaviour  and 

34  Mariachiara  Tallacchini,  'Gli  animali  nella  "società  europea  della  conoscenza": 

contraddizioni e prospettive' (2015) 4(12) Animal Studies 9. 

35  Brian Wynne et al., 'Taking European Knowledge Society Seriously', Report of the 
Expert Group on Science and Governance to the Science, Economy and Society 
Directorate (Office for Official Publications of the European Communities 2007). 
36  The welfare of animals used in experimentation, performing in circuses, confined 

in zoos, or of companion animals are beyond the remit of this work. 

37  Bettina Bock and Henry Buller, 'Healthy, Happy and Humane: Evidence in Farm 

Animal Welfare Policy' (2013) 53(3) Sociologia Ruralis 390. 

38  Ruth Harrison, Animal Machine (CABI 2013). 
39 

and  Future' 

FAWC (Farm Animal Welfare Council), 'Farm Animal Welfare in Great Britain: 
Past,  Present 
2009)  <https://assets.publishing. 
(FAWC 
service.gov.uk/government/uploads/system/uploads/attachment_data/file/319292/
Farm_Animal_Welfare_in_Great_Britain_-_Past__Present_and_Future.pdf> 
accessed 27 February 2019. 

 
 
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from fear and distress, have contributed through the years to the genesis and 
legitimization of animal welfare science as recognized in today's 'Innovation 
Union'.40  From  here,  the  inextricable  link  between  facts  and  values  that 
pointed to economic, safety and quality purposes41 has fuelled the normative 
consideration  and  attention  towards  welfarism,  helping  the  establishment 
and evolution of EU regulation and policy on the matter.  

In  the  agri-food  domain,  the  advent  of  the  bovine  spongiform 
encephalopathy  (BSE)  crisis,  which  undermined  public  confidence  in  food 
safety  and  in  policy-making  institutions,42  made  animal  welfare  one  of  the 
'legitimate  factors'  essential  for  EU  food  safety  policy  –  albeit  in  close 
connection with animal health – 'for the health protection of consumers and 
the promotion of fair practices in food trade'.43 From here, the agricultural 
product quality policy44 came to identify welfare among the 'most stringent 
farming  requirements'  for  high  quality  foodstuffs.45  The  EU  Commission 
(EC)46 and the EP47 strongly called for a framework of labelling being suitable 
to identify standardised animal health indicators and to encourage informed 

40  European Commission, 'State of the Innovation Union 2015', Directorate-General 

for Research and Innovation (European Union 2015). 

41  Corrado  Carenzi  and  Marina  Verga,  'Animal  Welfare:  Review  of  the  Scientific 

Concept and Definition' (2009) 8 Italian Journal of Animal Science 21. 

42  Matteo Ferrari, Risk Perception, Culture, and Legal Change. A Comparative Study on 

Food Safety in the Wake of the Mad Cow Crisis (Ashgate Publishing 2009). 

43  European Commission, 'White Paper on Food Safety' COM(1999) 719 final, Points 

15 and 70. 

44  European Commission, 'Communication from the Commission to the European 
Parliament, the Council, the Economic and Social Committee and the Committee 
of the Regions on agricultural product quality policy' COM(2009) 234 final. 
Ibid 4. 

45 

46  Commission of the European Communities, 'Report from the Commission to the 
European Parliament, the Council, the European Economic and Social Committee 
and the Committee of the Regions.  Options for animal welfare labelling and the 
establishment of a European Network of Reference Centres for the protection and 
welfare of animals' COM(2009) 584 final. 

47  European Parliament, 'Resolution on a Community Action Plan on the Protection 
and  Welfare  of  Animals  2006-2010'  (2006/2046(INI)),    Points  26,  39  and  42; 
European Parliament, 'Resolution of 4 July 2012 on the European Union Strategy 
for the Protection and Welfare of Animals 2012–2015' (2012/2043(INI)), Points 49 
and 67. 

 
 
 
 
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Farm Animal Welfare under Scrutiny 

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purchasing decisions consistent with the purposes of the EU’s food policy.48 
Furthermore,  animal  welfare  was  framed  within  the  CAP  agenda  as  a 
statutory  management  requirement  for  the  attribution  of  direct  payments 
and as a high standard to be adopted for support in the framework of rural 
development policy.49 

Article 13 TFEU reflects and summarizes this manifold picture, by balancing 
the common commitment towards animals' welfare needs with the Member 
States' religious rites and cultural preferences.50 From a formal point of view, 
the  disposition  represents  the  mainstreaming  of  regulatory  action  and  a 
parameter  for  the  legitimacy  of  Union  acts.  This  means  that,  when 
interpreting Union acts and guaranteeing the free movement of goods under 
national  laws  on  animal  welfare,  animal  protection  should  be  prevalent,  by 
taking 'legal precedence over all internal market policies'  – as the EP itself 
affirmed.51  

The importance of animal welfare as a point of general interest has also been 
confirmed by several rulings of the Court of Justice of the EU (CJEU).52 In 
February  2019,  for  example,  the  Court  ruled  that  Halal  meat  from  animals 
slaughtered by religious ritual without having first been stunned cannot be 

48 

49 

See Regulation (EC) No 178/2002 of the European Parliament and of the Council 
of 28 January2002 laying down the general principles and requirements of food law, 
establishing the European Food Safety Authority and laying down procedures in 
matters of food safety [2002] OJ L 31/1, Article 5(1). 
See  Eleonora  Sirsi,  ‘Il  benessere  degli  animali  nel  Trattato  di  Lisbona’  (2011)  2 
Rivista di diritto agrario, 220. 

51 

52 

50  For  the  several  interpretations  this  article  conveys,  see  Kea  Ovie,  'Harmonized 
Approaches  in  Intensive  Livestock  Production  Systems  in  Europe'  in  Gabriela 
Steier and Kiran K. Patel (eds), International Farm Animal, Wildlife and Food Safety 
Law (Springer 2017). 
European Parliament 2012 (n 47) Point 2. 
See,  for  instance, Case  C-426/16  Liga  van  Moskeeën  en  Islamitische  Organisaties 
Provincie  Antwerpen  and  Others  EU:C:2018:335;  Case  C-355/11  G.  Brouwer  v 
Staatssecretaris van Economische Zaken, Landbouw en Innovatie ECLI:EU:C:2012:353; 
Case  C-189/01  H.  Jippes,  Afdeling  Groningen  van  de  Nederlandse  Vereniging  tot 
Bescherming van Dieren and Afdeling Assen en omstreken van de Nederlandse Vereniging 
en 
tot  Bescherming  van  Dieren  v  Minister  van  Landbouw,  Natuurbeheer 
Visserij ECLI:EU:C:2001:420. 

 
 
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labelled organic, as it fails to observe the highest animal welfare standards.53 
As  for  national  laws  and  practices,  the  term  'implementation'  in  Article  13 
shall be interpreted as including national regulations affecting the application 
of  Union law.54 In  these terms, a  full implementation of  Article  13 concurs 
with increasing public attitude and sensitivity towards the protection of farm 
animal welfare,55 which has reached levels of deep awareness56 amongst EU 
citizens over the last few years, extending also beyond animal welfare issues 
to embrace the reduction or even elimination of livestock production.57 

However,  the  shift  from  the  idea  and  legal  classification  of  animals  as 
'agricultural  goods'  to  their  recognition  as  sentient  creatures  in  Article  13 
TFEU  does  not  seem  to  have  reached  its  full  and  complete  normative 
guarantee  and  enforcement.  When  dealing  with  ideas  and  concepts 
stemming  from  such  a  multifaceted  issue,  in  fact,  legal  thought  on  animal 
welfare  struggles  to  find  normative  tools  and  ground-breaking  solutions. 
Legislatures still appear stuck on legal anthropocentricism, intertwined with 
the protectionist view preserving present and future human interests rather 
than affirming and recognizing animal dignity.58 In this respect, the analysis 
of  two  fields  affected  by  this  legal  impasse,  namely  the  CAP  reform  and 

53  Case  C-497/17  Oeuvre  d'assistance  aux  bêtes  d'abattoirs  (OABA)  v  Ministre  de 

l'Agriculture et de l'Alimentation and Others ECLI:EU:C:2019:137. 

54  Adelina Adinolfi, 'Il trattamento degli animali nel diritto dell'Unione europea tra 
interessi  commerciali,  protezione  ambientale  e  "benessere":  verso  lo  sviluppo  di 
valori condivisi?' in Scritti per Luigi Lombardi Vallauri (Wolters Kluwer-CEDAM 
2016), 39. 

55  A final report of the first EU-wide citizens' consultation on future priorities of the 
EU showed that 1 out of 7 citizens mentioned animal welfare among their hopes for 
the future EU priorities. 13% of citizens also affirmed that decisions taken at EU 
level  for  the  welfare  of  animals  would  make  them  prouder  to  be  European.  See 
European  Commission,  'Online  Consultation  on  the  Future  of  Europe  Second 
Interim Report' (Kantar Public 2019). 

56  EU  DG  Health  and  Food  Safety,  'Special  Eurobarometer  442  Attitudes  of 

57 

Europeans towards Animal Welfare' (European Commission 2016). 
See,  for  example,  Walter  Willett  et  al.,  'Food  in  the  Anthropocene:  The  EAT–
Lancet  Commission  on  Healthy  Diets  from  Sustainable  Food  Systems'  (2019) 
393(10170) The Lancet 447.   

58  Paola  Sobbrio,  'The  Relationship  between  Humans  and  Other  Animals  in 

European Animal Welfare Legislation' (2013) Relations 33. 

 
 
 
 
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Farm Animal Welfare under Scrutiny 

59 

animal  welfare  labelling,  will  allow  reflection  on  how  the  solution  of  some 
legal aspects pertaining to them could help welfarism to gain full traction in 
the EU's current regulatory strategy.  

III. TOWARDS THE CAP POST-2020 

Despite the several waves of reforms59 that the CAP has undergone since the 
1990s and the huge levels of citizens' involvement and interest in the topic,60 
the CAP has not fully reached effective outcomes on animal welfare issues.61 
Not only is animal welfare not yet perceived as a public good in itself,62 but 
CAP's subsidies have also been criticized for leading to the intensification of 
animal production.63 Yet, the 2003 CAP reform64 resulted in a more animal 
welfare-orientated policy, by introducing the 'meeting standards' payment – 

59 

For  a  deep  and  critical  overview  on  the  matter,  see  Joseph  A.  McMahon  and 
Michael N. Cardwell (eds), Research Handbook on EU Agriculture Law (Edward Elgar 
Publishing 2015). 

60  ECORYS, 'Modernising and Simplifying the CAP. Summary of the Results of the 

Public Consultation' (European Commission-DG AGRI 2017). 

61  Compassion  in  World  Farming,  'Animal  Welfare  Article  of  the  Treaty  on  the 
Functioning  of  the  European  Union  is  Undermined  by  Absence  of  Access  to 
Justice' 
2014) 
<https://www.ciwf.org.uk/media/7427367/article-13-tfeu-undermined-by-lack-of-
access-to-justice-december-2014.pdf > accessed 17 March 2019. 

in  World 

(Compassion 

December 

Farming, 

62  The concept of "public goods" as goods non-excludable and non-rival entered the 
CAP in 2007 in the environmental context through greening under Pillar I. 
63  Eurogroup  for  Animals,  'EU  Citizens  Want  Future  CAP  to  Improve  Animal 
<https://www. 
Welfare' 
eurogroupforanimals.org/eu-citizens-want-future-cap-improve-animal-welfare  > 
accessed 12 March 2019). 
See  Organisation  for  Economic  Co-operation  and  Development  (OECD), 
'Analysis of the 2003 CAP Reform' (OECD Publications 2004). 

for  Animals, 

(Eurogroup 

2017) 

July 

12 

64 

 
 
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to  help  farmers  adapt  to  EU  animal  welfare  standards  based  on  minimum 
legislative requirements65 – and enhanced animal welfare payments.66 

After  the  specific  support  of  Regulation  1257/199967  and  the  2009  Direct 
Payment Regulation68 for the practice of enhanced animal welfare standards, 
farm animal welfare in agriculture emerged in the EC's 2010 Communication 
on the CAP reform.69 The section pertaining to one of the objectives of the 
(then)  future  CAP  stressed  the  obligation  for  farmers  to  respect  the  high 
standards  relating  to  animal  welfare  objectives  requested  by  EU  citizens.70 
One  year  later,  the  EP  called  for  the  new  CAP  to  comply  with  Directive 
98/5871  due  to  the  positive  impact  animal-welfare-friendly  methods  of 
production  have  on  animal  health,  food  quality  and  food  safety.72  The 
reformed CAP instruments adopted for the period 2014-2020, however, have 
been described as an 'opportunity missed […] to continue along the path of 

65 

See  Council  Regulation  (EC)  No.  1783/2003  of  29  September  2003  amending 
Regulation  (EC)  No  1257/1999  on  support  for  rural  development  from  the 
European  Agricultural  Guidance  and  Guarantee  Fund  (EAGGF)  [2003]  OJ 
L270/70. 

66  Reg. 1783/2003. Both of the above-mentioned payments were embedded in Council 
Regulation  (EC)  No.  1698/2005  of  20  September  2005  on  support  for  rural 
development by the European Agricultural Fund for Rural Development (EAFRD) 
[2005] OJ L 277/1, Article 20(c)(i) and Article 40. 

67  Council  Regulation  (EC)  No  1257/1999  of  17  May  1999  on  support  for  rural 
development  from  the  European  Agricultural  Guidance  and  Guarantee  Fund 
(EAGGF)  and  amending  and  repealing  certain  Regulations  [1999]  OJ  L  160, 
Chapter VI. 

68  Council  Regulation  (EC)  No.  73/2009  of  19  January  2009  establishing  common 
rules for direct support schemes for farmers under the common agricultural policy 
and  establishing  certain  support  schemes  for  farmers  [2009]  OJ  L  30,  Article 
68(1)(iv). 

69  European Commission, 'Communication from the Commission to the European 
Parliament, the Council, the Economic and Social Committee and the Committee 
of the Regions. The CAP towards 2020: Meeting the Food, Natural Resources and 
Territorial Challenges of the Future' COM(2010) 672 final. 
Ibid 7. 

70 

71  European  Parliament,  'Resolution  of  23  June  2011  on  the  CAP  towards  2020: 
Meeting  the  Food,  Natural  Resources  and  Territorial  Challenges  of  the  Future' 
(2011/2051(INI)), Point 41. 
Ibid Point 42. 

72 

 
 
 
 
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Farm Animal Welfare under Scrutiny 

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animal welfare reform advocated by Fischler in 2003'.73 Two peculiar aspects 
are  in  dispute  in  this  context:  the  cross-compliance  system  and  the  Rural 
Development Regulation.74 

The  cross-compliance  system,  which  correlates  most  CAP  payments75  to 
compliance  with  other  rules  on  animal  welfare,  includes  provisions  for 
protecting  calves76  and  pigs77  and  the  general  farm  animals  Directive.  One 
concern pertains to the exception stated for those farmers who participate in 
the small farmer's scheme78 under the Direct Payments Regulation.79 In the 
event  of  non-compliance,  this  provision  could  prevent  farmers  who  go 
beyond  the  minimum  statutory  management  requirements  from  taking 
advantage  of  respecting  animal  welfare  standards.80  The  exception  might 
thus negatively affect the welfare of food producing animals. 

As  for  the  CAP  rural  development  policy,  concerns  revolve  around  the 
'animal  welfare  payments'  (measure  14),  which  provide  support  for  high 
standards of animal husbandry. This voluntary measure, renewable annually 

73  Diane  Ryland,  'Animal  Welfare  in  the  Reformed  Common  Agricultural  Policy: 

Wherefore Art Thou?' (2015) 17(1) Environmental Law Review 22, 43. 

74  Regulation (EU) No 1305/2013 of the European Parliament and of the Council of 
17 December 2013 on support for rural development by the European Agricultural 
Fund  for  Rural  Development  (EAFRD)  and  repealing  Council  Regulation  (EC) 
No 1698/2005 [2013] OJ L 347, Article 33. 

75  Direct  payments,  payments  for  restructuring  and  conversion  of  vineyards  and 

green harvesting, and area related payments and animal welfare payments. 

76  Council  Directive  2008/119/EC  of  18 December  2008  laying  down  minimum 

standards for the protection of calves [2008] OJ L10/7, Articles 3 and 4. 

77  Council  Directive  2008/120/EC  of  18  December  2008  laying  down  minimum 

standards for the protection of pigs [2008] OJ L47/5, Articles 3 and 4. 

78  Regulation (EU) No. 1306/2013 of the European Parliament and of the Council of 
17 December 2013 on the financing, management and monitoring of the common 
agricultural policy and repealing Council Regulations (EEC) No. 352/78, (EC) No. 
165/94, (EC) No. 2799/98, (EC) No. 814/2000, (EC) No. 1290/2005 and (EC) No. 
485/2008 [2013] OJ L 347, Article 92 para 2. 

79  Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 
17 December 2013 establishing rules for direct payments to farmers under support 
schemes  within  the  framework  of  the  common  agricultural  policy  and  repealing 
Council  Regulation  (EC)  No 637/2008  and  Council  Regulation  (EC)  No 73/2009 
[2013] OJ L 347, Article 61. 

80  Ryland (n 73) 34. 

 
 
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from one to seven years, has not led Member States to robustly devote their 
budget  to  improving  standards  for  animal  agriculture.81  In  fact,  although 
Article  33  of  Regulation  1305/2013  recognises  payments  to  farmers 
undertaking animal welfare commitments related to areas such as water, feed 
and animal care, housing conditions and outdoor access, in the CAP 2014–
2020 only 35 out of 118 rural development programmes included measure 14.82 

According to the assessment carried out in 2018 by the EU Court of Auditors 
on  compliance  with  animal  welfare  legislation,  the  'Animal  Welfare' 
measure's cost-effectiveness was reduced because  

it supported farms that did not respect certain minimum standards on pig 
welfare, there was a risk of deadweight due to overlap with the requirements 
of  private  schemes,  and  the  common  monitoring  framework  lacked 
indicators for improvements in animal welfare.83 

The  Court  hence  suggested  challenging  Member  States  on  the  use  of  the 
animal welfare measure in sectors where there is evidence of widespread non-
compliance  (such  as  pig  tail  docking),  as  well  as  the  exchange  of  good 
practices  and  impact  indicators  for  animal  welfare  measure  for  the 
programming period post-2020.  

Working on the simplification and modernisation of the CAP, in  2017 the 
EC adopted The Future of Food and Farming policy document,84 which focuses 
on  challenges,  objectives,  and  possible  avenues  for  a  "future-proof"  CAP 
pointing  to  more  sustainable  agriculture.  The  proposed  new  model  of  the 
CAP is expected to be simpler, smarter and more modern, as well as suitable 
for  facing  critical  health  issues,  such  as  those  related  to  antimicrobial 
resistance  (AMR)  caused  by  inappropriate  use  of  antibiotics.  As  regards 
animal welfare, the final aim is related to a better application of EU rules on 

81  Olga  Kikou,  'CAP  and  Animal Welfare:  Simply  Incompatible'  (EURACTIV,  22 
February  2016)  <https://www.euractiv.com/section/agriculture-food/opinion/cap-
and-animal-welfare-simply-incompatible/> accessed 12 March 2018. 

82  European Court of Auditors, 'Animal Welfare in the EU: Closing the Gap between 
Ambitious Goals and Practical Implementation' (2018) Special Report No 31. 
Ibid 50. 

83 

84  Commission, 'Communication from the Commission to the European Parliament, 
the  Council,  the  Economic  and  Social  Committee  and  the  Committee  of  the 
Regions. The Future of Food and Farming' COM(2017) 713 final. 

 
 
 
 
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Farm Animal Welfare under Scrutiny 

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the  matter,  while  bolstering  standards  through  voluntary  initiatives  both 
within and outside Europe.85 After the EP's 2018 Resolution86 supporting this 
scenario  and  –  of  note  –  calling  for  the  recognition  of  animal  welfare  as  a 
'public  good',  on  1  June  2018  the  EC  adopted  a  legislative  proposal87 
delineating the plausible pattern for the CAP after 2020.  

A positive change comes from establishing animal welfare as a clear objective 
under the policy's Pillar I.88 The cross-compliance system is replaced by that 
of conditionality, which links full receipt of CAP support to the compliance 
by  beneficiaries  with  basic  standards  concerning,  inter  alia,  animal  welfare. 
Specifically, under the system of conditionality, Article 11 states that  

an administrative penalty shall be imposed on beneficiaries receiving direct 
payments  […]  who  do  not  comply  with  the  statutory  management 
requirements under Union law and the standards for good agricultural and 
environmental condition of land established in the CAP Strategic Plan […] 
relating to […] animal welfare. 

Despite  improvements  compared  to  the  current  CAP  and  the  public 
involvement requested when creating Member States' CAP Strategic Plans,89 
the  Eurogroup  for  Animals  disapproved  of  the  proposal  as  it  'fails  to 
effectively  promote  animal  welfare'.90  Specific  concerns  stressed  by  the 
NGO  regard:  the  non-mandatory  nature  of  pursuing  animal  welfare 

85 

Ibid 24. 

86  European  Parliament,  'Resolution  of  30  May  2018  on  the  Future  of  Food  and 

Farming' (2018/2037(INI)). 

87  Commission,  'Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the 
Council establishing rules on support for strategic plans to be drawn up by Member 
States under the Common agricultural policy (CAP Strategic Plans) and financed 
by  the  European  Agricultural  Guarantee  Fund  (EAGF)  and  by  the  European 
Agricultural  Fund  for  Rural  Development  (EAFRD)  and  repealing  Regulation 
(EU) No 1305/2013 of the European Parliament and of the Council and Regulation 
(EU) No 1307/2013 of the European Parliament and of the Council' COM(2018) 392 
final. 
Ibid Article 6. 
Ibid Article 94. 

89 

88 

90  Eurogroup for Animals, 'CAP Takes One Small Step for Animal Welfare, When a 
Giant  Leap 
2018) 
(Eurogroup 
<https://www.eurogroupforanimals.org/cap-takes-one-small-step-for-animal-
welfare-when-a-giant-leap-is-required > accessed 13 March 2019. 

for  Animals, 

is  Required' 

June 

5 

 
 
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measures/practices;91 the lack of a defined budgetary allocation; the linkage 
of subsidies to farms' size rather than to farms' contribution towards animal 
and  environment  friendly  production;  and  the  lack  of  sufficient  time  in 
forming and approving National Strategic Plans. Also, the NGO Compassion 
in World Farming criticised the proposal for delivering a mere 'business-as-
usual  approach'  that  ends  up  fostering  intensification  and  the  productivist 
model, which increases flexibility without increasing accountability.92  

Against these criticisms, the amendments voted for on 14 February 2019 by 
the EP's Committee on the Environment (ENVI Committee) went towards 
favouring  welfarism  in  livestock  farming.93  Four  major  aspects  were  in  fact 
addressed:  the  reduction  of  the  density94  of  farms  for  which  beneficiaries 
receive subsidies in order not to keep animals in extreme confinement; the 
ineligibility  of  industrial  farm  animal  production  for  rural  development 
funds; the  adoption  of  a  regulatory  definition  for  'Concentrated  Feeding 
Operations' (CAFOs) as buildings where animals are confined and deprived 
of  outdoor  access;  and  the  inclusion  of  the  poultry  directives  and  the 
regulation  on  slaughter  (for  animals  killed  on  farms)  to  the  mechanism  of 
conditionality.  

Although applauded for boosting the shift towards a 'more humane CAP'95 
inclined  to  promote  animal  friendly  livestock  farming,  this  series  of 
amendments  have  not  been  taken  into  account  by  the  Committee  on 

91 

In  this  regard,  however,  it  is  worth  noticing  that  effectively  mandatory  animal 
welfare obligations are to be imposed by conditionality (albeit on a limited scale). 
92  Four Paws in Europe, 'CAP Proposal Fails EU Citizens on Animal Welfare' (Four 
Paws in Europe, 16 August 2018) <https://www.vier-pfoten.eu/our-stories/eu-press-
releases/cap-proposal-fails-eu-citizens-on-animal-welfare>  accessed  13  March 
2019. 

93  Eurogroup  for  Animals, 

'The  European  Parliament's  Committee  on  the 
Environment Votes for more Humane CAP' (Eurogrup for Animals, 18 February 
2019)  <https://www.eurogroupforanimals.org/the-european-parliaments-commit 
tee-on-the-environment-votes-for-a-more-humane-cap> accessed 15 March 2019. 
94  Density (also called 'stocking density' or 'livestock density') refers to the number of 

animals kept on a given space. 
In this way, Eurogroup for Animals (n 93). 

95 

 
 
 
 
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Farm Animal Welfare under Scrutiny 

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include,  on 

the  one  hand, 

Agriculture (AGRI Committee). Its votes96 adopted in April 2019 still appear 
somewhat  problematic.  They 
an 
amendment enabling good animal welfare practices in the food chain and, on 
the other hand, an eco-schemes incentive programme encouraging farmers 
who  want  to  receive  CAP  subsidies  to  go  beyond  legal  standards  when  it 
comes to the treatment of animals. As they are likely to encourage intensive 
farming  production  across  Europe,  rather  than  fostering  a  smarter 
agricultural sector, a much stronger commitment towards animal welfare is 
hoped for and strongly encouraged97 to foster genuine higher welfare farming 
practices. 

IV. ANIMAL WELFARE STANDARDS AND LABELLING  

Whether  the  current  reforms  to  implement  the  CAP  post-2020  have  the 
potential to strongly support the welfare of animals reared for food, the use 
of  labelling  to  address  animal  welfare  issues  does  represent  a  further  legal 
pathway for overcoming the shortfalls of the CAP agenda. In light of this, the 
two topics explored below concern the increasing use of public and private 
animal  welfare  standards  and  the  correlated  need  to  label  them  on  food 
products. Two main arguments will be posited in this respect.  

The  first  argument  holds  that,  although  private  standards  may  potentially 
undermine  the  "integrity"  and  implementation  of  public  standards,  it  is 
worth noticing, on the other hand, that private initiatives can fuel a quality 
threshold to exceed public standards, leading to what has been termed a 'race 
to  the  top'.98  It  follows  that  public/private-sector  partnerships  have  all  the 
potential to create a two-way dialogue between public and private standards 

96 

Jan Jakubov, 'Protecting Farmers and Quality Products: Vote on EU Farm Policy 
Reform  Plans'  (European  Parliament  News,  01  April  2019)  <https://www. 
europarl.europa.eu/news/en/press-room/20190401IPR34586/protecting-farmers-
and-quality-products-vote-on-eu-farm-policy-reform-plans  >  accessed  09  May 
2019. 

97  Eurogruop for Animals, 'Baby Steps for Animal Welfare in the CAP  – But Boat 
Missed 
for  Animals,  2  April  2019) 
(Eurogruop 
<https://www.eurogroupforanimals.org/baby-steps-for-animal-welfare-in-the-cap-
but-boat-missed-for-systemic-change> accessed 09 May 2019. 

for  Systemic  Change' 

98  Naiki (n 22). 

 
 
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that  is  capable  of  positively  and  efficaciously  impacting  on  the  welfare  of 
food-producing animals in agriculture.  

As for the issue of farm animal welfare labelling, a radical shift may come from 
using labelling as a "citizenship factor", where the reality of animal farming in 
the supply chain would emerge "literally", together with a renovated way of 
informing consumers about animal welfare credentials for animal products. 
Indeed, by conveying the implementation of standards, labels give consumers 
the  opportunity  to  express  their  ethical  considerations  when  making  food 
choices.99  From  here,  the  purposes  underpinning  labelling  schemes  rely  on 
consumer  empowerment  and  information  provision,  while  potentially 
triggering  the  achievement  of  higher  animal  welfare  standards  in  livestock 
production systems. 

1. On the Role of Standards 

Over  the  last  three  decades,  an  assortment  of  private  animal  welfare 
assurance  schemes100  have  been  initiated  by  the  processing  industry 

99  Morven G. McEachern and Gary Warnaby, 'Exploring the Relationship between 
Consumer  Knowledge  and  Purchase  Behaviour  of  Value-based  Labels'  (2008)  32 
International Journal of Consumer Studies 414. 

100  In the light of the proliferation and evolution of private agri-food standards and the 
emergence  of  multiple  organisations  setting  them,  scholarly  work  has 
distinguished four key dimensions of diversity: 1) private company standards versus 
collective private standards; 2) standards for risk management versus standards for 
product  differentiation;  3)  standards  directly  linked  to  brands/symbols  that  are 
communicated  to  consumers  ('visible'  standards)  versus  business-to-business 
standards  ('invisible'  standards);  and  4)  standards  that  are  set  nationally  versus 
standards  that  are  set  internationally  (Spencer  Henson  and  John  Humphrey, 
'Understanding the Complexities of Private Standards in Global AgriFood Chains' 
(2010)  46(9)  Journal  of  Development  Studies  1628).  However,  notwithstanding 
such an assortment of legal instruments, some common features allow to combine 
the vast array of them. Firstly, all standards involve measurements, and all of them 
constitute  points  of  comparison.  Secondly,  they  are  always  interconnected  with 
economic  activity,  involving  judgements  about  acceptability  and  the  economic 
consequences  deriving  from  their  adoption.  Moreover,  they  inevitably  reflect 
social values and policy decisions, including values regarding health, trade, safety 
and  the  environment.  Finally,  standards  provide  norms  for  performance  and 
acceptable  deviations  from  it,  so  as  to  be  associated  with  the  idea  of  excellence 

 
 
 
 
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(slaughterhouses  and  dairy  plants),  primary  producers'  organisations 
(farmers'  organisations),  retailer  chains,  and  various  non-governmental 
organisations.101  The  force  driving  this  normative  flourishing102  is  mostly 
related  to  strategic  considerations  linked  to  retailer  firms'  reputation103  in 
terms of proposing products of a high quality and safety,104 as well as the need 
to respond to consumers' demand for animal-friendly products.105 Examples 
of  private  schemes  span  from  the  Soil  Association  standards,106  to  the 
RSPCA Freedom Food Scheme107 covering every aspect of animals' lives, to 
the  GLOBALG.A.P.  Integrated  Farm  Assurance  (IFA)  Standard,  that 
is built on a system of modules enabling those producers that agree with its 
terms of reference.108  

From  a  legal  stance,  the  "hybrid  nature"  of  animal  welfare  standards  in 
agriculture  relies  on  their  voluntary  status  becoming  de  facto  mandatory  in 

101 

when they are used (Liora Salter, Mandated Science. Science and Scientists in the Making 
of Standards (Kluwer Academic Publishers 1988) 20-24). 
Isabelle Veissier, Andrew Butterworth, Bettina Bock and Emma Roe, 'European 
Approaches  to  Ensure  Good  Animal  Welfare'  (2008)  113 Applied  Animal 
Behaviour Science 279.  

102  For an insightful analysis on the rise of private standards, see Fabrizio Cafaggi and 
Andrea  Renda,  'Public  and  Private  Regulation.  Mapping  the  Labyrinth'  (2012) 
CEPS Working Document No 370. 

103  Nicky  Amos  and  Rory  Sullivan,  'The  Business  Benchmark  on  Farm  Animal 
Welfare'  (BBFAW  2018)  <https://www.agrociwf.fr/media/7435685/bbfaw_report 
_2018.pdf> accessed 06> accessed March 2019. 

104  Carolina T. Maciel, Public Morals in Private Hands? A Study into the Evolving Path of 

Farm Animal Welfare Governance (Wageningen University 2015). 

105  Frauke Pirscher, 'Consuming for the Sake of Others: Whose Interests Count on a 
Market  for  Animal-friendly  Products?'  (2016)  29  Journal  of  Agricultural  and 
Environmental Ethics 67.  

106  Soil  Association, 

'What  are  Organic  Standards?'  (Soil  Association  2019) 

<https://www.soilassociation.org/our-standards/what-are-organic-standards>  
accessed 10 May 2019. 

107  RSPCA  Assured,  'Good  Welfare  is  Good  Business'  (RSPCA  Assured  2019) 

<https://www.berspcaassured.org.uk/> accessed 10 May 2019. 

108  GLOBALG.A.P., 

'A  Modular  Approach  to  Integrated  Farm  Assurance' 
(GLOBALG.A.P. 2019) <https://www.globalgap.org/uk_en/for-producers/globalg. 
a.p./integrated-farm-assurance-ifa/> accessed 10 May 2019. 

 
 
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order  for  producers  to  gain  access  to  the  global  food  market.109  As  such, 
regulatory concerns have emerged as regards to the credibility, multiplicity 
and often lack of transparency of private standards developed so far,110 due to 
the fact that private businesses' main priority is normally stakeholder profit 
rather  than  any  corporate  social  responsibility.  Further  problems  are 
correlated to the added cost implications111 for, on the one hand, small and 
medium sized enterprises and farmers in developing countries to comply with 
private regulations and, on the other, for consumers that have to pay a higher 
price for the final product. 

Moreover, this "normative toolbox" has evolved alongside the science-based 
public standards contained in the World Organisation for Animal Health's 
(OIE)  Terrestrial  Animal  Health  Code112  (TAHC),  which  embeds  general 
guiding principles for the welfare of animals in livestock production systems. 
What characterizes these international standards is their regular update – as 
new scientific information comes to light – through established transparent 
and  democratic  procedures  that  require  the  final  approval  of  the  World 
Assembly of Delegates at the OIE General Assembly.113 

The  co-existence  of  standards  having  a  different  nature  poses  questions  of 
utmost  significance.114  Are  private  standards  all  science-based  or  partly 
market  driven?  Must  public  and  private  types  of  governance  systems  be 

109  Diane  Ryland,  'Animal  Welfare  Standards  in  Agriculture:  Drivers,  Implications, 
Interface?' in Mariagrazia Alabrese, Margherita Brunori, Silvia Rolandi and Andrea 
Saba (eds), Agricultural Law (Springer 2017). 

110  Simon  J.  More,  Alison  Hanlon,  Joanna  Marchewka  and  Laura  Boyle,  'Private 
Animal  Health  and  Welfare  Standards  in  Quality  Assurance  Programmes:  A 
Review  and  Proposed  Framework  for  Critical  Evaluation'  (2017)  Veterinary 
Record doi: 10.1136/vr.104107. 

111  WTO, 'Private Standards and the SPS Sgreement (2007) Note by the Secretariat. 

G/SPS/GEN/746. 

112  OIE, 'International Terrestrial Animal Health Code: Section 7 Animal Welfare' 
(OIE  2016),  <https://www.oie.int/standard-setting/terrestrial-code/>  accessed  10 
May 2019. 
'OIE  Animal  Welfare  Standards' 
See  OIE, 
oie.int/animal-welfare/an-international-network-of-expertise/> 
August 2019. 

(OIE  2019)  <https://www. 
31 

accessed 

113 

114  Elena Fagotto, 'Private Roles in Food Safety Provision: The Law and Economics of 
Private Food Safety' (2014) 37(1) European Journal of Law & Econnomics 83. 

 
 
 
 
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considered  as  complementary  or 
in  competition  with  each  other? 
Explorations  into  such  intricate  quandaries  are  beyond  the  scope  of  this 
contribution. What is worth noticing here is that, although private standards 
may  potentially  impede  OIE  standards  from  being  fully  implemented,  it  is 
also true that private initiatives have the potential to push farmers to reach 
standards that are higher than the public international  ones.115 This sort of 
competition  would  surely  turn  out  to  be  fruitful  for  the  improvement  and 
strengthening  of  farm  animal  welfare.  This  implies  that  for  a  successful 
regulatory diffusion, local contexts must be properly taken into account, to 
preserve diversity and reinforce the scientific basis of OIE standards.  

This could be achieved through some sort of play of balances between private 
and public forces and values that mutually reinforce and re-shape each other, 
in order to effectively and legitimately co-operate within the agri-food chain. 
In  this  way,  the  flexibility  of  market-driven  tools  can  point  to  the  higher 
animal  welfare  standard  agri-produce,  albeit  under  the  standardisation  and 
oversight  of  science-based  public  tools.116  This  bidirectional  relationship 
would be beneficial in preventing private animal welfare assurance schemes 
from  conflicting  with  the  public  standards  of  the  OIE,  thus  allowing  each 
institution’s  values  to  co-exist  and  to  be  properly  and  efficaciously 
protected.117 

in 

found 

the  ISO 

this  may  be 

illustration  of 

An 
technical 
specification 'ISO/TS 34700:2016, Animal  welfare  management  –  General 
requirements  and  guidance  for  organizations  in  the  food  supply  chain'.118 
Following the cooperation agreement signed in 2011 with OIE, this technical 
specification  is  intended  as  a  soft  law  tool  of  governance  for  business 
operators  in  the  food  supply  chain  to  drive  trade  objectives  and  animal 
welfare  in  parallel,  building  a  normative  bridge  of  commitment  on  animal 

115  Naiki (n 22). 
116  Ryland (n 73). 
117  Carsten Daugbjerg and Linda C. Botterilli, 'Ethical Food Standards Schemes and 

118 

Global Trade: Paralleling the WTO?' (2012) 31 Policy 307. 
ISO, ISO/TS 34700:2016. Animal Welfare Management — General Requirements 
and  Guidance  for  Organizations  in  the  Food  Supply  Chain'  (ISO  Technical 
Committee  for  Food  Products,  Dember  2016)  <https://www.iso.org/standard/ 
64749.html> accessed 13 May 2019. 

 
 
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welfare  management  issues.119  It  supports  the  food  and  feed  industry  in 
developing an animal welfare plan that is aligned with the principles of the 
OIE TAHC and ensures the welfare of farm animals across the supply chain. 

Undoubtedly,  the  voluntary  character  of  such  "soft"  (not  legally  binding) 
tools  poses  intricate  problems  concerning  their  implementation  and 
enforcement.120  Nonetheless,  although  their  lack  of  binding  force  may 
reduce the level of enforcement on the short-term, a rigid compliance with 
their prescriptions cannot be prevented, due to the reasons for their creation 
and  spread.  From  this  perspective,  soft  law  can  be  considered  mostly  law 
rather than soft, becoming itself binding for the actors involved. Once it is 
set up in these terms, soft law is no longer in sharp opposition to hard law, but 
is rather bound to it in a complementary function.  

In  such  a  normative  frame,  ISO  compliance  constitutes  a  way  for  food 
business  operators  to  demonstrate  their  commitment  to  animal  welfare 
management,  as  their  products  meet  the  stringent, 
internationally 
recognized  animal  welfare  standards  set  by  the  OIE.  Moreover,  as  ISO 
standards respect the principles of openness, transparency, impartiality and 
consensus  –  as  well  as  those  of  effectiveness,  relevance  and  coherence  – 
agreed to by the WTO's TBT committee, their use do not create obstacles 
to international trade.121 What follows is that higher animal welfare standards 
are  gradually becoming  a  prerequisite  to enhancing business efficiency  and 
profitability, while satisfying international markets and meeting consumers' 
needs and expectations.122 

119  Sandrine  Tranchard,  'New  ISO  Specification  for  Better  Management  of  Animal 
(ISO,  1  December  2016)  <https://www.iso.org/news/ 

Welfare  Worldwide' 
2016/12/Ref2147.html> accessed 13 May 2019. 

120  For  a  general  overview  on  this  matter,  see  Linda  Senden,  Soft  Law  in  European 

121 

Community Law (Hart Pub Ltd 2004). 
IEC/ISO/ITU,  'International  Standards  &  Trade  Agreements'  (IEC/ISO/ITU 
2019)  <https://www.iso.org/files/live/sites/isoorg/files/standards/benefits_of_inter 
national_standards/WSC_International_Standards_%26_trade_agreements_2018
.pdf> accessed 02 September 2019. 

122  William Avis,  'Promotion of  Animal Welfare  in  Commercial  Agriculture'  (2018) 
4KD  Helpdesk  Report  <https://assets.publishing.service.gov.uk/media/5af97 
121ed915d0df19690c6/Promotion_of_animal_welfare_in_commercial_agriculture
.pdf> accessed 31 August 2019. 

 
 
 
 
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2. Labelling Animal Welfare Standards 

Alongside  these  initiatives,  the  simultaneous  rise  of  markets  for  animal 
friendly  products  (including  organic,  freedom  food,  free  range  etc.)  is 
triggering  the  demand  for  regulating  animal  welfare  labelling.123  Indeed, 
animal  welfare  logos  in-store  and  on-pack  that  are  multiplying  in  the 
marketplace often represent the consumer interface of a regulatory scheme.  

At  the  international  level,  the  TBT  Agreement  differentiates  between  the 
"technical nature" of the label124 – which makes it able to interfere with the 
free movement of goods125 – from standards by the fact that compliance with 

123  Mara Miele and John Lever, 'Civilizing the Market for Welfare Friendly Products 
in  Europe?  The  Techno-ethics  of  the  Welfare  Quality  Assessment'  (2013)  48 
Geoforum 63. 

124  According to international (GATT/WTO system) and EU business law, labelling 
rules are 'technical rules,' namely technical specifications 'contained in a document 
which lays down the characteristics required of a product such as levels of quality, 
performance, safety or dimensions, including the requirements applicable to the 
product as regards the name under which the product is sold, terminology, symbols, 
testing  and  test  methods,  packaging,  marking  or  labelling  and  conformity 
assessment procedures' (Directive (EU) 2015/1535 of the European Parliament and 
of the Council of 9 September 2015 laying down a procedure for the provision of 
information  in  the  field  of  technical  regulations  and  of  rules  on  Information 
Society services [2015] OJ L 241, Article 1(c)). According to the TBT Agreement, 
"technical  regulations"  are 
laws  or  provisions  specifying  the 
characteristics  of  products,  the  processes  or  production  methods  for  creating 
products  or  the  terminology,  symbols,  packaging,  marking,  or 
labelling 
requirements  for  products'  (TBT  Agreement,  Annexure  1.1,  Apr.  15  1994,  1868 
U.N.T.S. 120). 

'mandatory 

125  For instance, the dispute on "Beef Hormone" that broke out between the EU and 
the US following the enacting of Directive 96/22, forbade the use of hormones to 
feed cattle, and created a non-tariff barrier for beef-trading countries such as the 
US and Canada. Provided that they labelled beef  to inform the customer on the 
presence of hormones, after losing in appeal, the EU suggested the removal of the 
import ban. In view of the US refusal, the EU decided to keep the ban, facing severe 
commercial sanctions. (On this matter, see Denise Prévost, 'The Role of Science in 
Mediating the Conflict between Free Trade and Health Regulation at the WTO: 
The  EC  –  Biotech  Products  Dispute'  in  Marjolein  B.A.  van  Asselt,  Michelle 
Everson and Ellen Vos (eds), Trade, Health and the Environment. The European Union 
Put to the Test (Routledge Taylor & Francis Group 2014). In 2009, after a series of 
WTO  dispute  consultations,  settlement  panels,  arbitration  proceedings,  and 

 
 
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the former is mandatory, while with the latter it is voluntary.126 In such a view, 
single  national  laws  on  labelling  that  require  non-harmonized  mandatory 
rules might be included in the category of the so-called 'technical barriers to 
trade'. This normative distinction has led the EU to proceed very cautiously 
in implementing animal welfare regulations without violating WTO rules. As 
clear as the distinction between mandatory versus voluntary compliance may 
appear, however, the question of when a measure is a technical regulation and 
when it is a standard remains an open and controversial issue. Two disputes 
concerning  the  WTO's  approach  to  animal  welfare  are  exemplary  in  this 
respect. 

In the US – Tuna I127 and II128 cases, a threshold issue was whether the US 
measure that monitored and enforced a private voluntary label on tuna, the 
'dolphin-safe'  label,129  fell  within  the  definition  of  a  'technical  regulation'. 
While, in the first case, the Panel took a pro-trade approach, by considering 
the  US  measure  as  a  technical  regulation  because  it  contained  some 
mandatory  features,  in  2012  the  Appellate  Body  held  that  the  dolphin  safe 
label was consistent with the TBT. Significantly, not only did the Appellate 
Body  determine  that  intentionally  setting  nets  on  dolphins  is  'particularly 
harmful' to them,130 it also found that the measure's goal to protect dolphins 
was  legitimate  and  as  such  could  justify  restricting  trade.131  Put  differently, 

formal appeals, the EU signed a memorandum of understanding (MOU), granting 
market access to US exports of beef raised without the use of growth promotants. 
The  United  States,  instead,  have  suspended  higher  duties  for  imported  EU 
products  listed  under  the  dispute  (see  Renée  Johnson,  'The  U.S.-EU  Beef 
Hormone  Dispute'  (2015)  CRS  Report  <https://fas.org/sgp/crs/row/R40449.pdf> 
accessed 09 May 2019). 

126  See the TBT Agreement, Annex I. 
127  WTO United States: Measures Concerning the Importation, Marketing and Sale of Tuna 

and Tuna Products – Report of the Panel (2011) WT/DS381/R, para 2.12. 

128  WTO United States: Measures Concerning the Importation, Marketing and Sale of Tuna 
and Tuna Products - Report of the Appellate Body (2012) WT/DS381/AB/R, para 303-
06. 

129  Dolphin  Protection  Consumer  Information  Act,  16  U.S.C.  §  1385(d)(1)  (1999) 
(providing for the use of a voluntary "Dolphin Safe" label if certain criteria are met, 
such as prohibiting intentional setting on dolphins for tuna harvested in the ETP). 

130  See US—Tuna Report of the Appellate Body, para. 289, 297. 
131 

Ibid para 341-42. 

 
 
 
 
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the  TBT  Agreement  recognised  the  possibility  for  governments  to  set 
labelling schemes with technical requirements to meet the (non-exhaustive) 
list of 'legitimate objectives', which include measures to protect animal life or 
health  or  the  environment.132  Although  referring  to  wildlife,  this  line  of 
reasoning  –  permitting  countries'  laws  to  distinguish  between  production 
methods as they relate to animals – may also be considered applicable to farm 
animal  practices  and  measures  prohibiting  certain  practices  that  are  more 
harmful to animals.133 

Certainly, the interrelation of lay knowledge in this field with the everyday 
practices of eating and shopping constitutes a big challenge to the emergence 
of  labelling  as  a  method  of  farm  animal  welfare  governance.134  The  use  of 
ethical labels is in fact connected to motivation and understanding, which are 
inevitably  affected  by  tacit  ethical  imperatives  (such  as  shopping,  eating, 
cooking,  and  care  of  self),135  demographic  characteristics,  and  country 
differences.136  It has been  shown, for instance,  that animal welfare labelled 
products – such as meat and dairy products communicating animal welfare 

132  However,  it  was  not  until  2018  that  the US-Tuna  II case  was  finally  resolved  in 
favour of the full WTO-compatibility of the 'dolphin-friendly' label, after a 2015 
appeal by Mexico concerning the US regime establishing the conditions (namely, 
the  'eligibility  criteria,'  the  'certification  requirements'  and  the  'tracking  and 
verification requirements') for labelling tuna products as 'dolphin safe' (See WTO, 
'United  States  —  Measures  Concerning  the  Importation,  Marketing  and  Sale  of 
Tuna  and  Tuna  Products'  (WTO  2019)  <https://www.wto.org/english/tratop_e/ 
dispu_e/cases_e/ds381_e.htm> accessed 27 June 2019). 

133  Andrew Lurié and Maria Kalinina, 'Protecting Animals in International Trade: A 
Study of the Recent Successes at the WTO and in Free Trade Agreements' (2015) 
30(3) American University International Law Review 431. 

134  Adrian B. Evans and Mara Miele, 'Enacting Public Understandings: The Case of 

Farm Animal Welfare' (2019) 99 Geoforum 1. 

135  Adrian Evans and Mara Miele, 'Between Food and Flesh: How Animals Are Made 
to  Matter  (and  not  matter)  within  Food  Consumption  Practices'  (2012)  30(2) 
Environment and Planning D-Society and Space 298. 

136  Klaus  G.  Grunert,  Sophie  Hieke  and  Josephine  Wills,  'Sustainability  Labels  on 
Food  Products:  Consumer  Motivation,  Understanding  and  Use'  (2014)  44  Food 
Policy 177. 

 
 
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standards – can lead to positive consumer reactions,137 in spite of the socio-
economic constraints pertaining to the costs associated with labels.138 

At  the  same  time,  however,  it  is  also  true  that  an  overload  of  information 
could  negatively  affect  the  adequacy  of  the  information  itself,139  which  is 
particularly  true  in  cases  where  an  EU  animal  welfare  labelling  scheme 
overlaps  with  other  quality  standards  (such  as  organic  farming  or 
environmental  protection).  Simplification  and  the  framing  of  information 
are instead considered as adequate and useful tools through which to provide 
citizens  with  clear  and  meaningful  information,  in  the  light  of  the  insights 
coming  from  behavioural  sciences  literature.140  Yet,  to  date,  a  plethora  of 
animal welfare labelling schemes – variously focusing on animal welfare only 
(e.g.  Freedom  Food,  Neuland),  on  aspects  including  animal  welfare  (e.g. 
organic certification, Label Rouge), or on aspects with positive side effects of 
animal  welfare  (e.g.  Protected  Designation  of  Origin  Certification)  – 
continues to proliferate across Europe.  

The German Animal Welfare Association, for instance, has developed a two-
level (basic  and premium) voluntary animal  welfare  label for  fattening  pigs, 
with the aim of strengthening consumer confidence in livestock farming and 
ensuring openness and transparency along the entire production chain.141 In 
alliance with partners from industry, academia and the extension services, the 
label – used throughout Germany – is based on high standards that provide 

137  Carolien Hoogland, Joop de Boer and Jan J. Boersema, 'Food and Sustainability: 
Do  Consumers  Recognize,  Understand  and  Value  On-package  Information  on 
Production Standards?' (2007) 49 Appetite 47. 

138  While the costs of mandatory labelling are generally passed on to all consumers, in 

a voluntary scheme, those who wish to have the information pay for it. 

139  To  address  this  issue,  the  UK  charity  Compassion  in  World  Farming  is 
campaigning for clear food labelling, by providing consumers with a quick guide on 
how  to  read  the  labels  available  on  animal  products.  See  Compassion  in  World 
Farming, 
farming  2019) 
<https://www.ciwf.org.uk/your-food/know-your-labels/> accessed 13 May 2019. 
140  Cass  R.  Sunstein  and  Lucia  A.  Reisch  (eds),  The  Economics  of  Nudge  (Routledge 

'Know  Your  Labels' 

(Compassion 

in  World 

2017).  

141  Federal Ministry of Food and Agriculture, 'The BMEL supports introduction of an 
independent animal welfare label' (Federal Ministry of Food and Agriculture 2019) 
<https://www.bmel.de/EN/Animals/AnimalWelfare/_Texte/Tierschutzlabel.html
> accessed 13 May 2019. 

 
 
 
 
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Farm Animal Welfare under Scrutiny 

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better animal welfare for housed animals. Likewise, voluntary  labelling and 
registration  systems have  been  developed  by  Agrarmarkt  Austria  Marketing 
GmbH (AMA-Marketing)  for animal  production.142  Their  hallmark  lies  on 
the  three  pillars  of  high  quality,  transparent  origin  and  independent 
inspections.  

Against this unharmonized landscape, moreover, a further issue comes from 
the fact that the EU has been showing over the years a more animal welfare-
oriented  approach  on  the  international  stage  than  it  has  domestically.  In 
1998, for instance, the CJEU ruled that a Member State observing the 1988 
Recommendation concerning cattle143 could not  

rely on Article 36 of the Treaty and, in particular, on the grounds of public 
morality, public policy and/or the protection of the health or life of animals 
laid down therein, in order to justify restrictions on the export of live calves 
with  a  view  to  preventing  those  calves  from  being  reared  in  the  veal  crate 
systems used in other Member States.144  

This ruling is clearly emblematic of how, at least in that period, the EU took 
trade  interests  as  its  point  of  departure,  thus  limiting  the  possibility  for 
Member  States  to  address  non-economic  interests  as  opposed  to  the 
objectives of free trade.145 

In  2009,  in  contrast,  the  EU  law  banning  the  import  and  export  of  most 
products made from seals146 was aimed in part at improving animal health and 
welfare,  while  grounding  animal  protection  on  widely  held  ethical  beliefs 
about  the  nature  of  cruelty  towards  animals.  Specifically,  Regulation 
1007/2009 was justified by the acknowledgment that the hunting of seals had 
generated  concerns  among  EU  citizens  and  governments  due  to  the  'pain, 

142  See  ANCO,  'ANCO  Knowledge:  What  Matters  to  Quality  Pork  Producers' 
July  2016)  <https://www.anco.net/pig-production-quality-pork-

11 

(ANCO, 
producers/> accessed 15 May 2019. 

143  Council of Europe, Recommendation concerning cattle adopted by the Standing 

Committee on 21 October 1988. 

144  Case  C-1/96  The  Queen  v  Minister  of  Agriculture,  Fisheries  and  Food,  ex  parte 

Compassion in World Farming Limited ECLI:EU:C:1998:113. 

145  For  an  analysis  of  the  judgment,  see  Katrin Vels,  'Trade  Restrictions on Animal 

Welfare Grounds in the European Union' (2004) RGSL Working Papers No 18. 
146  Regulation (EC) 1007/2009 of the European Parliament and of the Council of 16 

September 2009 on Trade in Seal Products [2009] OJ L 286/36. 

 
 
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distress, fear and other forms of suffering which the killing and skinning of 
seals' impose.147 In the WTO dispute settlement process148 (EC-Seal Products) 
that  arose  on  this  matter,  Canada  and  Norway  contested  the  EU  ban  as  a 
trade  restrictive  measure  violating  WTO  law  since  it  was  based  on  anti-
cruelty  concerns.  The  Panel,  however,  recognised  it  as  a  measure  falling 
within the ambit of public morals under Article XX(a) of the 1994 General 
Agreement  on  Tariffs  and  Trade  (GATT).149  It  also  affirmed  that  the 
protection of public morals related to seal hunting is a legitimate objective 
pursuant to the TBT Agreement.150 

With  animal  welfare  thus  acknowledged  as  a  matter  of  public  morals,  the 
"relative character" attributed to the concept of public morals itself has been 
key to base the former on traditions, values, or sensitivities of public opinion, 
rather than on scientific tests.151 In this way, the 'animal turn' – namely, the 
phenomenon in the natural and social sciences that has focused intellectual 
attention on the status of animals and on human relationships with them  – 
has made its way into international law.152 

As a consequence, in light of the EU's unharmonized labelling framework and 
the  potential  pathway  that  occurred  at  an  international  level,  a  stronger 
commitment  towards  animal  welfare  labelling  could  represent  a  turning 
point for governance system and market regulation in the EU. As early as in 
2007, the Council acknowledged the need to introduce 'a label to recognise 
compliance with EU and/or recognised equivalent animal welfare standards, 

147 

Ibid Recital 4. 

148  WTO European Communities: Measures Prohibiting the Importation and Marketing of 
(2014)  WT/DS400/AB/R, 

the  Appellate  Body 

Seal  Products  –  Report  of 
WT/DS401/AB/R, para 2.196, 5.138. 
Ibid para 7.639 
Ibid para 7.419-.420. 

149 

150 

151  Xavier Fernández-Pons and Carolina Lembo, 'The Case EC – Seal Products: The 
WTO  Dispute  Settlement  System  Before  a  "Trilemma"  Between  Free  Trade, 
Animal Welfare, and Rights of Indigenous Peoples' in Alberto do Amaral Júnior, 
Luciana de Oliveira Sá Pires and Cristiane Lucena Carneiro (eds), The WTO Dispute 
Settlement Mechanism (Springer 2019). 

152  Katie Sikes, 'Globalization and the Animal Turn: How International Trade Law 
Contributes  to  Global  Norms  of  Animal  Protection'  (2016)  5(1)  Transnational 
Environmental Law 55. 

 
 
 
 
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Farm Animal Welfare under Scrutiny 

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including  the  possibility  of  voluntary  animal  welfare  labelling'.153  The 
following impact assessment,154 carried out in 2009 by what was then known 
as  the  Directorate-General  for  Health  and  Consumers155  (DG  SANCO), 
identified the harmonised requirements for voluntary animal welfare claims 
and/or a Community animal welfare label as the most feasible options to be 
implemented. As the EC acknowledged,  

improved  information  among  consumers  offers  the  prospect  of  a  virtuous 
cycle where consumers create a demand for food products sourced in a more 
animal  welfare  friendly  manner,  which  is  transmitted  through  the  supply 
chain back to the primary producer.156  

Perhaps  the  establishment  of  the  new  'Platform  on  Animal  Welfare'157  to 
(among  other  things)  share  information  and  encourage  dialogue  on  Union 
matters  related  to  animal  welfare might  contribute  to  build  "bridges  of 
knowledge" between authorities and civil society. This is because innovation 
–  understood  in  its  broad  meaning  –  entails  a  comprehensive  and 
evolutionary approach to food information, aimed at 'covering information 
provided also by other means than the label'.158 It must be said, however, that 

153  Council  of  the  European  Union, 
Agriculture and Fisheries' (2007) 15. 

'Press  Release.  2797th  Council  Meeting 

154  European Commission, 'Commission staff Working Document accompanying the 
Report  from  the  Commission  to  the  European  Parliament,  the  Council,  the 
Economic and Social Committee and the Committee of the Regions-Options for 
animal  welfare  labelling  and  the  establishment  of  a  European  Network  of 
Reference Centres for the protection and welfare of animals' SEC(2009) 1432. 
155  The  current  name  is  Directorate-General  for  Health  and  Food  Safety  (DG 

SANTE). 

156  European Commission, 'Commission staff Working Document accompanying the 
Report  from  the  Commission  to  the  European  Parliament,  the  Council,  the 
Economic and Social Committee and the Committee of the Regions – Options for 
animal  welfare  labelling  and  the  establishment  of  a  European  Network  of 
Reference Centres for the protection and welfare of animals' COM(2009) 584 final, 
2. 

157  Commission  Decision  of  24  January  2017  establishing  the  Commission  Expert 

Group "Platform on Animal Welfare" [2017] OJ C 31/61. 

158  Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 
October  2011  on  the  provision  of  food  information  to  consumers,  amending 
Regulations  (EC)  No  1924/2006  and  (EC)  No  1925/2006  of  the  European 
Parliament and of the Council, and repealing Commission Directive 87/250/EEC, 

 
 
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labelling  still  remains  the  most  useful  means  through  which  to  make  an 
informed choice in the agri-food market. 

To date, the only EU-wide system of compulsory labelling on animal welfare 
is that for table eggs, based on the EU legislation for laying hens.159 Although 
the  EU  strategy  2012-2015  on  animal  welfare  does  not  plan  to  extend 
compulsory labelling on animal welfare beyond eggs, several proposals160 have 
been advanced for mandatory animal-welfare labelling, also in light, from a 
legal  viewpoint,  of  its  compatibility  with  WTO  rules,161  as  the  US-Tuna  II 
dispute exemplifies.  

Against  the  lack  of  clarity,  credibility  and  standardization  that  animal-
welfare disclosure seems to be affected by, a harmonised labelling program 
within market regulation162 is considered suitable to, first, reduce transaction 
costs  in  consumers'  search  for  high-welfare  animal  products;  second,  offer 
retailers attractive logistical simplicity; and third, improve consumers' ability 
to  compare  information,  while  increasing  their  valuation  of  enhanced-
welfare  animal  products.  Harmonization,  additionally  –  be  it  reached  at 

Council  Directive  90/496/EEC,  Commission  Directive  1999/10/EC,  Directive 
2000/13/EC  of  the  European  Parliament  and  of  the  Council,  Commission 
Directives  2002/67/EC  and  2008/5/EC  and  Commission  Regulation  (EC)  No 
608/2004 [2011] OJ L 304, Recital 14. On this Regulation, see Alessandra Di Lauro, 
'Labels,  Names  and  Trade  Marks'  in  Luigi  Costato  and  Fernando  Albisinni, 
European and Global Food Law (Wolters Kluwer 2016); Silvia Bolognini, 'Linee-guida 
della nuova normativa europea relative alla "fornitura di informazioni sugli alimenti 
ai consumatori"' (2012) 4 Le nuove leggi civili commentate 613. 

159  Council Directive 1999/74/EC of 19 July 1999 laying down minimum standards for 

the protection of laying hens [1999] OJ L 203. 

160  Sean P. Sullivan, 'Empowering Market Regulation of Agricultural Animal Welfare 

through Product Labeling' (2013) 19 Animal Law 391. 

161  RSPCA, 'Responding to the Government's Consultation on Health and Harmony: 
The Future for Food, Farming and the Environment in a Green Brexit' (2004) 9 
<https://www.rspca.org.uk/webContent/staticImages/Downloads/RSPCA_Respo
nses_Brexit.pdf> accessed 13 May 2019. 

162  Paul T.M. Ingenbleek, David Harvey, Vlatko Ilieski, Victor M. Immink, Kees de 
Roest and Otto Schmid, 'The European Market for Animal-Friendly Products in a 
Societal Context' (2013) 3(3) Animals (Basel) 808. 

 
 
 
 
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Farm Animal Welfare under Scrutiny 

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national (as requested by the Italian NGO Legambiente163) or supra-national 
level (as suggested by the Federation of Veterinarians of Europe164 (FVE)) – 
may provide through its organisational structure a continuous monitoring of 
claim compliance through the enhanced-welfare producers' pursuit of their 
own self-interests.165 

To  this  end,  the  Farm  Animal  Welfare  Forum166  (FAWF)  has  called  for 
mandatory,  clear  and  unambiguous  labelling  of  all  animal-derived  products 
according to method of production, so as to give consumers information on 
the potential for high welfare that the farming system offers when the system 
is  well-managed.  Such  universal  and  harmonised  labelling  would  ensure 
maximum transparency about the provenance of animal-based foods and the 
welfare  of  the  animals  that  produced  them.  Others  suggested,  instead,  the 
adoption  of  a  labelling  scheme  in  the  form  of  a  certified  logo  or  a  rating 
system  to  align  consumers'  consumption  habits  with  their  farm  animal 
welfare  preferences.167  Further  proposals168  supported  the  design  of  a  label 

163  CIWF  Italia,  'Metodo  di  allevamento  in  etichetta:  una  bussola  per  acquisti 
consapevoli' 
(CIWF  Italia  2019)  <https://action.ciwf.it/page/36021/data/1? 
supporter.appealCode=CAPWE_IT0119&utm_campaign=labelling&utm_source
=link&utm_medium=media > accessed 31 August 2019. 

164  According to FVE, the introduction of EU-wide Animal Welfare Labelling should 
involve essential basic principles, such as higher ranked labels for animal friendly 
housing, the promotion of this labelling by the market, and the widespread of this 
information  to  consumers.  See  FVE,  'Recommendations  of  the  FVE  on  Animal 
Welfare  Labelling',  FVE/08/doc/036  <https://www.fve.org/cms/wp-content/ 
uploads/fve_08_036_concept_paper_aw_labeling_jan09.pdf>  accessed  31  August 
2019. 

165  Brian  Roe  and  Ian  Sheldon,  'Credence  Good  Labeling:  The  Efficiency  and 
Distributional  Implications  of  Several  Policy  Approaches'  (2007)  89  American 
Journal of Agricultural Economics 1020. 

166  FAWF,  'Labelling  Food  from  Farm Animals.  Methods  of Production  Labels for 
the  European  Union',  A  Paper 
for  Consultation  with  Stakeholders 
<http://www.fawf.org.uk/sites/default/files/2018-09/FAWF_Labelling_Food_FIN 
AL.pdf> accessed 13 May 2019. 

167  Ariane  Kehlbacher,  Richard  Bennett  and  Kelvin  Balcombe,  'Measuring  the 
Consumer  Benefits  of  Improving  Farm  Animal  Welfare  to  Inform  Welfare 
Labelling' (2012) 37 Food Policy 627. 

168  Paola  Fossati,  'Labeling  Animal  Welfare,  Empowering  Citizens'  Ethics'  (2011) 
Intervention at the International Conference Innovating Food, Innovating the Law. An 

 
 
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providing the maximum amount of animal welfare information, for example 
about animal-treatment practices.  

All  these  ideas  exemplify  the  potentiality  for  animal  welfare  labelling  to 
restore a more trustworthy relationship between consumers and foods and 
food companies, as well as to rethink and reshape the concept of traceability. 
The  flourishing  of  a  (sort  of)  "ethics  traceability"  could  allow  EU  citizens' 
ethical considerations to surface, contributing to enhancing and reinforcing 
awareness of animal distress, while fostering technological changes towards 
more welfare-friendly forms of husbandry.  

V. FINAL REMARKS 

Animals  deserve  protection  according  to  two  criteria,  namely  value  and 
subjectivity.169  In  spite  of  much  more  attention  than  in  the  past  towards 
animals'  feelings  and  needs,  the  EU  legal  framework  currently  in  force 
remains paradoxical in its facets. Due to a form of compassion approach to 
the  matter  –  largely  focused  on  human  sentiment  and  the  importance  of 
animals  for  citizens'  well-being  –  EU  animal  law  does  not  yet  rely  on  an 
innovative  model  of  human-animal  relationship  that  might  favour  human 
moral responsibility and agency toward animals.170 Although animal welfare 
emerges in the EU regulatory framework as a recognised legal obligation, it is 
neither  fully  meant  as  an  alignment  between  science  and  society  nor  fully 
guaranteed by a complete implementation of Article 13 TFEU.171 From this 

Interdisciplinary  Approach 
Sector 
<https://www.slideshare.net/FondazioneBassetti/06-innovating-food-innovating-
the-law-paola-fossati> accessed 06 March 2019. 

the  Challenges 

the  Agrifood 

in 

to 

169  Value-based  protection  is  part  of  the  broader  framework  of  biodiversity 
protection; subjectivity is ascertained through the study of central nervous systems 
and  behaviours  (biology,  neurology,  and  ethology).  Luigi  Lombardi  Vallauri,  'La 
questione animale come questione filosofico-giuridica' (2014) 2 Rivista di filosofia 
del diritto 521, 523. 

170  Richard  L.  Cupp,  'Moving  Beyond  Animal  Rights:  A  Legal/Contractualist 
Critique' (2009), Legal Studies Research Paper Series Paper Number 2009/11, 27-
84. 

171  Mariachiara  Tallacchini,  'Dignità,  etica  science-based,  democrazia:  la  tutela 
animale  nella  società  europea  della  conoscenza' in  Giuseppe  A.    Chizzoniti  and 
Mariachiara Tallacchin (eds), Cibo e religioni: diritto e diritti (Libellula 2010). 

 
 
 
 
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Farm Animal Welfare under Scrutiny 

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perspective, intellectual and practical efforts of dialogue with public powers 
may give animal welfare those forms of civic accreditation it still lacks. 

The  domains  our  analysis  has  focused  on  may  fruitfully  contribute  to  the 
prosperity  and  resilience  of  future  farming  practices  in  their  approach  to 
animal dignity. As regards the future "CAP architecture", the ongoing work 
by  the  EP  is  hoped  to  foster  a  smarter  and  more  sustainable  agricultural 
sector,  taking  into  full  consideration  the  knowledge  value  of  animal 
sentience. In particular, there is scope for optimising synergies between the 
future CAP and the overall animal welfare legislation, by boosting the system 
of conditionality and making animal welfare one of the specific objectives of 
rural development between 2021 and 2027.172 These actions will permit efforts 
to 'improve the response of EU agriculture to societal demands on […] animal 
welfare,'173 as set forth by the proposals for the CAP's post-2020 period. As 
for  welfarism-related  information,  a  paradigm  shift  may  come  from  using 
labelling as a matter of "ethical citizenship", suitable to reflect the ethical and 
critical nature of food consumption, while bolstering compliance by farmers 
and food business operators with high animal welfare standards. 

In this respect, for instance, the new 2018 Regulation on organic farming174 
appears  to  suitably  fit  in  with  the  perspective  of  enhancing  animal  welfare 
standards  in  EU  farming,  supporting  farmers  in  adopting  sustainable 
agricultural practices and empowering citizens through labelling. Indeed, as 

172  See European Court of Auditors (n 82) 9. 
173  European Commission, 'The Future Is Rural: The Social Objectives of the Next 
CAP' 
2019)  <https://ec.europa. 
eu/info/news/future-rural-social-objectives-next-cap-2019-feb-15_en>  accessed  21 
December 2019. 

(European  Commission, 

18  February 

174  Regulation  (EU)  2018/848  of  the  European  Parliament  and  of  the  Council  of  30 
May 2018 on organic production and  labelling of organic products and repealing 
Council  Regulation  (EC)  No  834/2007  [2018]  OJ  L  150.  The  new  Regulation 
represents solely the 'Basic Act' on organic agriculture, as the details of the legal 
text  are  planned  to  be  developed  in  2019  and  2020  throughout  delegated  and 
implementing acts. For its genesis and analysis, see Luca Leone, Organic Regulation–
A  Legal  and  Policy  Journey  between  Europe  and  the  United  States  (Libellula  2019); 
Nicola Lucifero, ‘Il regolamento (UE) 2018/848 sulla produzione biologica. Principi 
e  regole  del  nuovo  regime  nel  sistema  del  diritto  agroalimentare  europeo’  (2019) 
Rivista di diritto agrario, 477. 

 
 
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Recital 3 of the new Regulation 2018/848 explicitly affirms, 'the objectives of 
the organic production policy are embedded in the objectives of the CAP'. 
By depicting the organic field as 'an overall system of farm management and 
food production that combines best environmental practices, a high level of 
biodiversity, the preservation of natural resources and the application of high 
animal  welfare  standards,'175  the  reformed  legal  framework  allows  for  the 
health  and  well-being  of  farm  animals  to  gain  terrain  within  the  agri-food 
domain.  In  fact,  the  legal  text  recognises  the  need  to  take  any  'preventive 
measures at every stage of production, preparation and distribution, where 
appropriate […] to avoid negative effects on […] animal health'.176 

From  the  ban  of  chemically  produced  allopathic  medicinal  products 
(including  antibiotics),177  to  the  promotion  of  housing  conditions  and 
husbandry  practices  satisfying  animals'  behavioural  needs,  up  to  the 
guaranteeing of permanent access to open-air areas for exercise,178 the new 
rules aim at avoiding or keeping to a minimum any suffering, pain or distress 
at all stages of animals' lives.179 In such a perspective of 'contributing to high 
animal welfare  standards and,  in  particular,  to meeting the species-specific 
behavioural needs of animals,'180 the EU organic logo181 comes as the symbol 
that brings and embeds peculiar guarantees about high standards of animal 
welfare. 

Certainly,  problems  in  the  regulation  exist  and  may  neglect  animal  welfare 
considerations.  The  perpetuation  of  poor  animal  management  practices  – 
such as breeding, tethering and mutilation – can end up undermining, rather 
than  ensuring,  consumer  confidence  in  organic  animal  products  across  the 
EU. At  the  same time, though,  the specific  conditions  requested for those 

175 

176 

177 

178 

179 

180 

181 

Ibid Recital 1. The general principles which organic production relies on are listed 
in Article 5. 
Ibid Recital 24 and Article 3(4). 
Ibid Recital 43. 
Ibid Recital 44. 
Ibid Annex II, Part II. 
Ibid Article 4, let. e. 
Ibid Article 33. 

 
 
 
 
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Farm Animal Welfare under Scrutiny 

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practices182 – together with the quest for additional rules183 for bovine, ovine, 
caprine, and equine animals (as well as for poultry, rabbits and bees)184 – are 
emblematic of the increasing attention the EU legislator is devoting towards 
achieving  higher  animal  welfare  standards  in  more  sustainable  farming 
practices.  

Beyond the field of organics, as this contribution has explored, the definition 
– at national or communitarian level – of a unique, voluntary, species-specific 
labelling that makes the husbandry method explicit is strongly supported as 
a further proactive step towards the welfare of animals reared for food. It is 
meant  as  a  compass  that  can  orient  consumers'  purchases  and  facilitate 
informed  choices,  by  promoting  those  farming  systems  that  are  more 
respectful of animals and provide them with better living conditions. Such a 
form of labelling – in the Italian NGO Legambiente's words – is what puts 
citizens in contact with what occurs at the first step of the agri-food chain, as 
well as with the animal from which food comes from.185 Regulation on food 
information  is  emblematic  in  this  regard.  It  suggests  providing  Union 
consumers,  in  the  context  of  a  future  Union  strategy  for  the  welfare  of 
animals,  with  information  on  the  stunning  of  animals,  because  of  the 
increasing interest in implementing the animal welfare rules  at the time  of 
slaughter.186 

In conclusion, addressing the legal issues related to the CAP post-2020 and 
labelling could permit animal welfare questions to be properly addressed and 
integrated  into  the  EU  food  policy  (or  'Common  Food  Policy'?187),  in  the 
pursuit of more sustainable methods of husbandry in EU agriculture. A well-

182 

Ibid Recital 44. 

183  For  example,  requirements  for  stocking  density,  minimum  surfaces  and 

characteristics, as well as technical requirements for housing. 

184  Reg. 2018/848, Recital 45. 
185  This  vision  is  at  the  core  of  the  petition  launched  by  the  NGOs  Compassion  in 
World  Farming  (CIWF)  and  Legambiente  in  January  2019.  See  CIWF  Italia  (n 
161). 

186  Reg. 1169/2011, Recital 50. 
187  Olivier De Schutter, 'Towards a Common Food Policy for the European Union. 
The Policy Reform and Realignment that is Required to Build Sustainable Food 
Systems  in  Europe'  (IPES  FOOD  Panel-International  Panel  of  Experts  on 
Sustainable Food Systems 2019). 

 
 
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structured  CAP  framework,  together  with  harmonized  labelling  rules,  can 
definitely help define the "normative identity" of EU philosophy on animal 
welfare,  allowing  the  humanist  and  animalist  perspectives  to  converge  and 
interact  with  each  other.  Both  citizens'  faith  in  legislators  and  animal 
industry's  competitive  advantage  can  only  benefit  from  EU  legislation  and 
policy that are positively constructive in approaching farm animal welfare and 
dignity. 

 
 
 
PESCO AND THE PROSPECT OF A EUROPEAN ARMY:  
THE 'CONSTITUTIONAL NEED' TO PROVIDE FOR A POWER OF CONTROL 
OF THE EUROPEAN PARLIAMENT ON MILITARY INTERVENTIONS 

Matteo Frau* 

 and Elisa Tira† 

The  article  examines  the  implications  of  the  creation  in  2017  of  a  'Permanent 
Structured  Cooperation  on  security  and  defence'  (PESCO),  that  could  lead  to  the 
gradual construction of a European Army. In particular, it focuses on the institutional 
issues linked to the possibility of deploying European armed forces in conflict scenarios 
and analyses the governance of the European common security and defence policy. In 
this respect, the decision-making power in matters of common defence and PESCO is 
concentrated in the hands of the Council and of the High Representative of the Union 
for  Foreign  Affairs  and  Security  Policy,  without  the  European  Parliament  being 
directly  involved  in  the  relevant  decision-making  processes.  The  article  aims  to 
illustrate the constitutional reasons in favour of greater involvement of the European 
Parliament in this area. Moreover, it will evaluate the ways in which the democratic 
control on future EU military missions could be increased. 

Keywords: PESCO, European army, Common Security and Defence Policy, 
European Parliament 

TABLE OF CONTENTS 

I. INTRODUCTION .................................................................................................. 86 

II. DEMOCRATIC CONTROL VERSUS MILITARY EFFICIENCY: THE DIFFICULT 

SEARCH FOR BALANCE ................................................................................... 90 

III. THE CURRENT REGULATION OF PESCO AND THE ABSENCE OF AN 

ADEQUATE FORM OF DEMOCRATIC CONTROL ........................................... 93 

IV. CONSTITUTIONAL REASONS FOR THE INVOLVEMENT OF THE EUROPEAN 

PARLIAMENT IN THE COMMON DEFENCE POLICY ..................................... 99 

* 

Assistant Professor of Comparative Public Law at the Department of Law of the 
University of Brescia (Italy). 

†  Assistant Professor of Public Law at the Department of Economics of e-Campus 

University (Italy). 

EJLS 12(1), April 2020, 85-119 

doi:10.2924/EJLS.2019.013 

 
 
 
  
 
 
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1. The Need to Respect the Democratic Principle ....................................................... 99 

2. The Need to Respect Principles of Institutional Balance and Loyal Cooperation 102 

3. Response to Possible Objections to Greater Parliamentary Involvement .............. 107 

V. MEMBER STATES' REQUIREMENT OF PARLIAMENTARY INVOLVEMENT IN 

MILITARY MISSIONS ABROAD .................................................................... 108 

VI. THE PROSPECTS OF ESTABLISHING A POWER OF CONTROL OF THE 

EUROPEAN PARLIAMENT OVER EU MILITARY MISSIONS ........................ 114 

1. Reform Based on Existing Regulation ................................................................... 114 

2. Reform Based on Future Regulation ..................................................................... 116 

VII. CONCLUSIONS ............................................................................................... 117 

I. INTRODUCTION 

A new event, which had the potential to be of extraordinary importance in 
the  process  of  European  integration  within  the  Common  Security  and 
Defence  Policy,  occurred  at  the  end  of  2017.  This  was  the  creation  of  a 
'Permanent  Structured  Cooperation  on  security  and  defence'  (PESCO), 
pursuant to Article 42, paragraph 6, of the Treaty on European Union (TEU). 
The permanent structured cooperation involves, as Article 42(6) TEU states, 
'Member  States  whose  military  capabilities  fulfil  higher  criteria  and  which 
have made more binding commitments to one another in this area with a view 
to  the  most  demanding  missions'.  PESCO  was  originally  conceived  as  a 
'locomotive'  designed  to  drive  the  entire  common  security  and  defence 
policy,1 the latter of which constitutes, within the meaning of Article 42, 'an 

1  On the European security and defence policy, see, among the others: Alyson J. K. 
Bailes,  'The  EU  and  a  Better  World:  What  Role  for  the  European  Security  and 
Defence  Policy?'  (2008)  84  International  Affairs  115;  Anne  Deighton,  'The 
European  Security  and  Defence  Policy'  (2002)  40  Journal  of  Common  Market 
Studies 719; Tuomas Forsberg, 'Security and Defense Policy in the New European 
Constitution:  A  Critical  Assessment'  (2004)  3  Connections  13;  Jolyon  Howorth, 
Security  and  defence  policy  in  the  European  Union (Palgrave  2007);  Jolyon Howorth, 
'European  Defence  and  the  Changing  Politics  of  the  European  Union:  Hanging 
Together  or  Hanging Separately?'  (2001)  39  Journal of  Common  Market  Studies 
765; Chris J. Bickerton, Bastien Irondelle, Anand Menon, 'Security Co-operation 
beyond the Nation-State: The EU's Common Security and Defence Policy' (2011) 
49 Journal of Common Market Studies 1; Hanna Ojanen, 'The EU and Nato: Two 

 
 
 
 
 
 
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integral  part  of  the  common  foreign  and  security  policy'  of  the  European 
Union.2  As  such,  PESCO  seems  able  to  facilitate  the  achievement  of  the 
various stages of the integration process outlined in the second paragraph of 
Article  42:  'The  common  security  and  defence  policy  shall  include  the 
progressive framing of a common Union defence policy. This will lead to a 
common  defence,  when  the  European  Council,  acting  unanimously,  so 
decides'.  The  leap  in  quality  made  by  PESCO  lies  precisely  in  the  binding 
nature  of  the  commitments undertaken by  the Member  States  in  this  very 
delicate area. 

The overarching aim of the integration process set out in Article 42 is very 
ambitious and ultimately consists in the gradual construction of a European 
supranational  military  power  able  to  intervene  in  conflict  scenarios  on  a 
mandate and under the aegis of the European Union. The achievement of this 
goal would allow the Union to express a unified stance in matters of common 
foreign  and  defence  policy  and  to  become  one  of  the  main  actors  on  the 
international scene, being the bearer of an EU Global Strategy. Thus, Europe, 
with its own European Army, could become a decisive player in the context 
of NATO and the UN. Additionally, it could enter into direct dialogue with 
national  military  superpowers,  which  until  now  have  been  the  undisputed 
protagonists  both  in  armed  conflicts  and  in  subsequent  'reconstruction' 
policies. 

The implications of PESCO are many and concern, not only the future, but 
also the present. First of all, PESCO sets the foundation for unprecedented 
cooperation  in  the  fields  of  military  industry,  training  and  mobility  of  the 
armed  forces,  sharing of strategic  information  and so on. Moreover,  in the 
Community  tradition  the  common  market  has  always  been  a  driver  of 
integration.  This  is  why  the  drive  to  achieve  ever  more  ambitious  military 

Competing Models for a Common Defence Policy' (2006) 44 Journal of Common 
Market Studies 57. 

2  On the common foreign and security policy, see, among the others: Douglas Hurd, 
'Developing  the  Common  Foreign  and  Security  Policy'  (1994)  70  International 
Affairs  421;  Maria-Gisella  Garbagnati  Ketvel,  'The  Jurisdiction  of  the  European 
Court of Justice in Respect of the Common Foreign and Security Policy' (2006) 55 
The International and Comparative Law Quarterly 77; Nadia Klein and Wolfgang 
Wessels,  'CFSP  Progress  or  Decline  after  Lisbon?'  (2013)  18  European  Foreign 
Affairs Review 449. 

 
 
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industrial  projects  at  the  European  level  could  facilitate  the  gradual 
formation  of  a  European  army  and,  consequently,  the  basis  for  a  strong 
common foreign and defence policy. On the other hand, this cooperation also 
affects  the  relevant  issues  pertaining  to  the  relationship  between  the  EU, 
NATO and the UN, and to the internationalist profiles of military missions. 
However, as this strictly relates to international law, it falls outside the scope 
of this work.  

Each of these aspects raises a series of questions that are of great legal – and 
non-legal – interest and hence it is necessary to carefully delimit the context 
of the present research. This article focuses on the institutional issues linked 
to  the  future  prospect,  now  less  distant  than  in  the  past,  of  the  birth  of  a 
strong  common  defence  policy  of  the  European  Union,  based  on  the 
possibility of deploying European armed forces in operational scenarios. 

The extensive literature on the European security and defence policy (ESDP) 
mainly  deals  with  describing  and  analysing  the  activities  of  the  European 
Union in relevant crisis areas and the connected foreign policy missions,3 the 
impact of the ESDP,4 or the institutional framework developed to support 
the ESDP.5 With specific reference to PESCO, the literature focuses above 
all on the concrete implications and on the effectiveness and efficiency of the 
Permanent  Structured  Cooperation,6  with  particular  regard  to  the  legal 
nature  and  enforceability  of  the  binding  commitments  agreed  to.7  In 
contrast,  relatively  little  attention  is  paid  to  whether  or  not  the  internal 
management  of  the  EU  defence  governance  is  adequate  with  respect  to 

3 

4 

5 

6 

7 

See, for example, Alessia Biava, 'The Emergence of a Strategic Culture within the 
Common Security and Defence Policy' (2011) 16 European Foreign Affairs Review 
41. 
See, among the others, Anand Menon, 'Empowering Paradise? The ESDP at Ten' 
(2009) 85 International Affairs 227. 
See, for example, Hans-Georg Ehrhart, 'The EU as a Civil-Military Crisis Manager: 
Coping with Internal Security Governance' (2006) 61 International Journal 433. 
See, for example, Sven Biscop, 'Permanent Structured Cooperation and the Future 
of the ESDP: Transformation and Integration' (2008) 13 European Foreign Affairs 
Review 431. 
See Steven Blockmans, 'The EU's Modular Approach to Defence Integration: an 
Inclusive, Ambitious and Legally Binding PESCO?' (2018) 55 Common Market Law 
Review 1785. 

 
 
 
 
 
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PESCO and the Prospect of a European Army 

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general legal principles like democracy. The latter issue is the subject of the 
present research. 

Adopting  a  constitutional  approach,  this  article  aims  to  analyse  the 
governance of the European common defence policy, looking specifically at 
the  prospect  of  military  interventions  carried  out  under  the  aegis  of  the 
European Union.8 The crux of the matter is the lack of involvement of the 
European  Parliament  (EP)  in  the  decision  of  the  EU  to  set  up  a  military 
mission involving the sending of European armed forces in conflict scenarios. 

Constitutional law generally does not provide an exhaustive regulation of the 
power to intervene militarily in conflict scenarios. However, the institutional 
practice of contemporary democracies and the interpretation of the relevant 
constitutions normally seek to achieve a difficult balance between the need 
to  guarantee  the  effectiveness  and  efficiency  of  military  missions  and  the 
need  to  subordinate  the  exercise  of  the  power  of  military  intervention  to 
democratic-parliamentary  control 
(section  II).  In  contrast,  on  the 
supranational  level,  the  decision-making  power  in  matters  of  common 
defence and PESCO is concentrated in the hands of the Council and of the 
High  Representative  of  the  Union  for  Foreign  Affairs  and  Security  Policy, 
without  the  European  Parliament  being  directly  involved  in  the  relevant 
decision-making processes (section III). 

The  present  article  aims  to  verify  whether  or  not  the  current  legislative 
framework of the TEU contradicts some basic constitutional principles that 
are part – or have now become part – of the 'constitutional' heritage of the 
EU  (section  IV).  The  principles  with  which  the  current  governance  of  the 
European common defence could conflict belong to two main categories: 1) 
those  that  emerge  directly  from  the  Treaties,  such  as  the  principle  of 
institutional  balance  and  the  principle  of  representative  democracy,  which 
can no longer be relegated to the scope of the old  'first pillar'; and 2) those 
that  emerge  from  the  common  constitutional  traditions  of  the  Member 
States. In this respect, in many EU Member States the need to subordinate 
the sending of the armed forces in conflict scenarios to specific parliamentary 

8 

For a review of the literature on EU governance, see, among others, John Peterson, 
'The  choice  for  EU  theorists:  Establishing  a  common  framework  for  analysis' 
(2001) 39 European Journal of Political Research 289. 

 
 
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authorization  or  to  prior  parliamentary  debate  has  in  recent  years  been 
affirmed. Indeed, this principle has been expressly sanctioned or interpreted 
by the constitution of those Member States, with the exception of cases of 
urgency and necessity (section V). 

the  EU 

This paper assumes that the EP is an essential organ for ensuring a minimum 
level of institutional balance, transparency, open political confrontation and 
democratic  method  in  the  supranational  decision-making  processes  and  in 
the  formation  of  the  Union's  policies.  This  is  so  within  the  delimited 
framework  of 
'European 
institutional 
constitutionalism', even if the EP is not comparable to national parliaments.9 
Moreover, since the Lisbon Treaty has sanctioned the removal of the pillar 
structure  and  determined  the  definitive  fusion  of  the  Communities  within 
the European Union, the current governance of common foreign and security 
policy  can  no  longer  be  considered  completely  detached  from  the  real 
Community dimension. On the contrary, the common foreign and security 
policy is now partly integrated into the Union legal order and, consequently, 
can no longer take shape fully as a form of intergovernmental cooperation.  

and  of 

set-up 

On  this  basis,  at  the  end  of  the  present  analysis  we  will  evaluate  how  the 
redistribution  of  powers  could  be  made  in  order  to  establish  a  power  of 
effective  control  of  the  EP  on  future  EU  military  missions  and  to  increase 
democratic control of the latter (section VI). 

II. DEMOCRATIC CONTROL VERSUS MILITARY EFFICIENCY: THE 
DIFFICULT SEARCH FOR BALANCE 

Normally, constitutional law does not provide an exhaustive regulation of the 
power  to  intervene  militarily  in  conflict  scenarios.  This  is  because 
constitutional texts have often not been updated in this area and therefore 
are influenced by the now obsolete concept of war in the formal sense, namely 
war  'lawfully  waged',  based  on  constitutional  and  international  rules. 

9 

Because of the issue of the democratic deficit referred to it. See, for example, Jean 
Blondel,  Richard  Sinnott,  Palle  Svensson,  People  and  Parliament  in  the  European 
Union:  Participation,  Democracy,  and  Legitimacy  (Oxford  University  Press  1998); 
Michael  Goodhart,  'Europe's  Democratic  Deficits  through  the  Looking  Glass: 
The  European  Union  as  a  Challenge  for  Democracy'  (2007)  5  Perspectives  on 
Politics 567. 

 
 
 
 
 
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Furthermore, it is inevitable and even appropriate that a written constitution 
leaves  much  of  the  regulation  of  this  complex  subject  to  organic  laws 
implementing  the  constitutional  provisions,  to  parliamentary  rules,  to 
constitutional conventions and application practices. 

In any case, the institutional practice of contemporary democracies and the 
interpretation  of  the  respective  constitutions  generally  seek  to  achieve  a 
difficult  balance  between  the  need  to  guarantee  the  effectiveness  and 
efficiency of military missions and the need to subordinate the exercise of the 
power  of  military  intervention  to  democratic-parliamentary  control.10  In 
many  constitutional  democracies,  this  balance  has  been  found  in  the 
allocation  of  the  decision-making  power  to  commence  a  military  action  to 
the executive body, and of the power of prior authorization/approval of such 
decision  to  the  parliamentary  body  (see  below,  section  V).  Among  the 
countries that have developed this solution, by means of conventions and/or 
legislative acts, there are some – such as Belgium, Germany and Italy – which 
are particularly relevant for the present research. They represent a significant 
constitutional  parameter  capable  of  influencing  the  evolution  of  the 
European Union's legal system in this matter. 

Apart  from  some  exceptions,  in  the  evolution  of  democratic  states  the 
parliament's power to approve or authorize the declaration of war in a formal 
sense established itself across all the main forms of government  (see below, 
section V). Although in the practice of the main constitutional democracies 
this principle has not had continued application, the power in question must 
be  considered  as  a  sort  of  unavoidable  parliamentary  attribution,  like 
legislative and budgetary power.11 

As war in the formal sense has become mostly obsolete, it seems reasonable 
that even the power of war in a substantial sense, namely the power to deploy 

10 

11 

See  Dirk  Peters  and  Wolfgang  Wagner,  'Between  Military  Efficiency  and 
Democratic  Legitimacy:  Mapping  Parliamentary  War  Powers  in  Contemporary 
Democracies, 1989–2004' (2011) 64 Parliamentary Affairs 175. 
See  Tapio  Raunio  and  Wolfgang  Wagner,  'Towards  Parliamentarisation  of 
Foreign and Security Policy?' (2017) 40 West European Politics 1; Daan Fonck and 
Yf  Reykers,  'Parliamentarisation  as  a  Two-Way  Process:  Explaining  Prior 
Parliamentary  Consultation  for  Military  Interventions'  (2018)  71  Parliamentary 
Affairs 674. 

 
 
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the  armed  forces  in  conflict  scenarios  with  or  without  an  'international 
coverage',12 should be subject to parliamentary authorization. Indeed, similar 
to arguments justifying the conferral  to parliament of  legislative functions, 
also  with  reference  to  the  decision-making  processes  related  to  military 
missions  the  involvement  of  the  parliamentary  body  would  allow  the  full 
participation  of  all  the  represented  political  forces.  It  thus  allows  the 
opposition to give its contribution to the discussion, whatever the majority 
decides.13 In contrast, the executive cannot guarantee the complexity, depth 
and  transparency  of  the  decision-making  processes  ensured  by  the 
parliamentary  body, both within  parliamentary committees and within the 
plenary assembly. 

However,  these  greater  guarantees  of  the  decision-making  procedures  of 
parliamentary bodies are sometimes incompatible with the needs pertaining 
to  the  exercise  of  military  and  war  powers,  which  for  this  reason  are 
traditionally  conferred  to  the  executive.14  In  many  cases,  the  political 
decision  to  start  a  military  action  requires  speed  and  unity  of  purpose; 
moreover, the secrecy of operational plans is often a necessary condition for 
their effective realisation. These needs can certainly justify a proportionate 
and  reasonable  limitation  of  the  supervisory  power  of  parliament  over  the 
military powers of the executive, but can never lead to its complete exclusion. 

In  principle,  the  complete  exclusion  of  parliament  and  of  the  relevant 
parliamentary committees from the decision-making process related to the 
commencement  of  a  military  action  can  only  be  justified  by  the  need  to 
respond to a serious and immediate threat to national security. However, this 
is on the understanding that the problem of the executive's wide discretion 
in the assessment of that need persists.  

The assessment of the needs related to military-defensive efficiency requires 
a great deal of balance and consideration which, by necessity, focuses on the 

12  War  in  a  substantial  sense  includes  the  different  types  of  military  missions  that 

13 

14 

cannot be defined as 'war' in a formal sense.  
See Patrick A Mello and Dirk Peters, 'Parliaments in security policy: Involvement, 
politicisation,  and  influence'  (2018)  20  The  British  Journal  of  Politics  and 
International Relations 3. 
See J. Locke, 'Two Treatises of government', in  The Works of John Locke (vol. II, 
London, printed for John Churchill 1714) 199, sec. 147. 

 
 
 
 
 
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PESCO and the Prospect of a European Army 

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discretion of the executive. Of course, the executive may consider that, due 
to higher requirements related to national security, it is necessary to sacrifice 
the prior parliamentary control of the power to intervene militarily. In such 
cases, the only guarantee of democratic control remaining would consist, ex 
post,  in  the  political  accountability  of  the  government  to  the  parliament 
and/or to the voters, depending on the form of government.  

In  fact,  such  decision  could  hardly  be  subject  to  control  by  the  ordinary 
courts15 and in this respect the case law of the United Kingdom and of the 
United States is particularly significant.16 As we will try to illustrate, recent 
developments in the European Union's common security and defence policy 
suggest  that  many  of  these  issues  could  arise,  mutatis  mutandis,  even  in  the 
European supranational context. 

III. THE CURRENT REGULATION OF PESCO AND THE ABSENCE OF AN 
ADEQUATE FORM OF DEMOCRATIC CONTROL 

As a preliminary point, it is worth briefly recalling the main steps that led to 
the creation of PESCO in December 2017. An important impulse was given 
by  the  conclusions  adopted  by  the  European  Council  on  22/23  June  2017, 
which promoted the need to create an 'inclusive and ambitious' Permanent 
Structured Cooperation. The European Council's mandate was to draw up, 
within three months, 

a common list of criteria and binding commitments fully in line with Articles 
42(6) and 46 TEU and Protocol 10 to the Treaty - including with a view to 
the  most  demanding  missions  […],  with  a  precise  timetable  and  specific 

15  Rather, if provided for in the single legal system in question, a possible appeal to 
the Constitutional Court could be involved. In that case, the possible breach of the 
duty of prior consultation of the parliamentary body could be established only after 
the military intervention. Such a control could nevertheless be useful both for the 
purpose of clarifying the constitutional interpretation, and to enforce, in the most 
serious  cases,  the  legal  and  institutional  liability  of  the  members  of  the 
Government for an illegitimate exercise of their functions. 
For example, on the position of the Supreme Court and on the role of the Courts 
in  deciding  whether  the  President  has  overstepped  his  power  in  conducting 
warfare,  see  Jules  Lobel,  'The  Commander  in  Chief  and  the  Courts'  (2007)  37 
Presidential Studies Quarterly 49. 

16 

 
 
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assessment  mechanisms,  in  order  to  enable  Member  States  which  are  in  a 
position to do so to notify their intentions to participate without delay.17 

On  13  November  2017  the  Foreign  and  Defence  Ministers  of  23  countries, 
since  increased  to  25  –  all  Member  States  except  the  United  Kingdom, 
Denmark  and  Malta  –  signed  a  common  notification  regarding  their 
intention to participate in Permanent Structured Cooperation.18 At the third 
point of Annex I (Principles of PESCO) it states:  

PESCO is a crucial step towards strengthening the common defence policy. 
It could be an element of a possible development towards a common defence 
should the Council by unanimous vote decide so (as provided for in article 
42.2 TEU). A long term vision of PESCO could be to arrive at a coherent full 
spectrum  force  package  -  in  complementarity  with  NATO,  which  will 
continue to be the cornerstone of collective defence for its members.19 

Despite the latter reassuring concession to NATO, the creation of a 'future' 
European  army  will  be  primarily  functional  as  an  independent  foreign  and 
defence  policy  of  the  Union.  Indeed,  this  seems  to  be  precisely  the  idea 
underlying the following point 8 of Annex I:  

An inclusive PESCO is as a strong political signal towards our citizens and 
the outside world: Governments of EU Member States are taking common 
security  and  defence  seriously  and  pushing  it  forward.  For  EU  citizens  it 
means more security and a clear sign of willingness of all Member States to 
foster common security and defence to achieve the goals set by EU Global 
Strategy. 

A European army and its use in conflict scenarios will therefore be not only 
an instrument to be made available to the Atlantic Pact or the UN resolutions 
authorizing an armed intervention. In fact, it will primarily be an instrument 
that may be used in the EU Global Strategy, although at present the political 
conditions for this common strategy seem to be some time away. 

Finally, with the decision of 11 December 2017, the Foreign Affairs Council 
of the European Union, following the common notification of 13 November 

17  European Council meeting, 22 and 23 June 2017, Conclusions. 
18  Notification on Permanent Structured Cooperation (PESCO), 13 November 2017. 
19 

Ibid, Annex I (Principles of PESCO). 

 
 
 
 
 
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PESCO and the Prospect of a European Army 

95 

and acting by qualified majority (Article 46.2 TEU), sanctioned the official 
birth of the 'Permanent Structured Cooperation on security and defence'.20 

The creation of a European military force that can be deployed in operational 
scenarios  is  a  possibility  already  fully  shaped  by  Article  43  TEU,  which 
clarifies the content of the missions 'in the course of which the Union may 
use civilian and military means', to which Article 42(1) refers. They include, 
inter  alia,  'conflict  prevention  and  peace-keeping  tasks,  tasks  of  combat 
forces  in  crisis  management,  including  peace-making  and  post-conflict 
stabilisation'. Article 43 also states that '[a]ll these tasks may contribute to 
the  fight  against  terrorism,  including  by  supporting  third  countries  in 
combating  terrorism  in  their  territories'.  This  is  clearly  confirmed  by 
Protocol 10 relating to PESCO. Indeed, Article 1 of this Protocol established 
the achievement in 2010 of the ambitious objective of forging supranational 
battlegroups to be used for the purposes of Article 43 TEU. 

As  regards  the  regulation  of  the  decision-making  processes  related  to 
PESCO,  first  of  all  it  must  be  considered  that  the  'common  security  and 
defence policy', regulated in Section 2 of Chapter 2 of Title V of the TEU, is 
part of the wider 'common foreign and security policy'. The latter is regulated 
in the whole of Chapter 2, which is in turn included in the general subject of 
the 'Union's external action' treated by the whole Title V. Chapter 1 of Title 
V contains 'general provisions on the Union's external action', while Chapter 
2 contains 'specific provisions on the common foreign and security policy', 
which  includes  the  'common  security  and  defence  policy'.  It  follows  that 
many of the rules of the whole Title V, being general rules, apply also to the 
more specific subject of the 'common security and defence policy'. 

If  we  examine  the  general  provisions  on  the  Union's  external  action 
contained in Chapter 1 of Title V, it is possible to immediately find a general 
prevalence accorded by the TEU to the European Council and to the High 
Representative of the Union for Foreign Affairs and Security Policy in the 
matters falling under the former second pillar. Pursuant to Article 22, in fact, 
the European Council 'shall identify the strategic interests and objectives of 
the  Union'  relating  to  the  external  action  and  to  the  common  foreign  and 

20  Council Decision establishing Permanent Structured Cooperation (PESCO) and 

determining the list of Participating Member States, 11 December 2017.  

 
 
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defence policy. The High Representative may instead 'submit joint proposals 
to the Council' for the area of common foreign and security policy, while the 
Commission  can  submit  joint  proposals  to  the  Council  'for  other  areas  of 
external action'. 

Chapter 2 broadly confirms this general approach. Article 24 establishes that 
the common foreign and security policy is 'defined and implemented by the 
European  Council  and  the  Council  acting  unanimously,  except  where  the 
Treaties  provide  otherwise'.  As  better  specified  in  Article  26,  while  the 
European  Council  must  establish  the  general  guidelines  for  the  common 
foreign  and  security  policy,  the  Council  must  define  and  implement  it  in 
concrete terms.  

On the other hand, Article 24 gives the High Representative of the Union, 
who also chairs the Foreign Affairs Council, the power to 'put into effect' the 
common  foreign  and  security  policy.  This  'executive'  function  is  better 
defined in Articles 26 and 27, which assign to the High Representative the 
important function of external representation of the Union that is connected 
to their appellative.  

A very marginal position is therefore left to the European Parliament and to 
the Commission. Firstly, because in this matter  'the adoption of legislative 
acts  shall  be  excluded'  (Article  24,  first  paragraph).  Secondly  because,  with 
regard to the functions of the European Parliament and of the Commission, 
Article 24 merely states that their specific role 'in this area is defined by the 
Treaties'.  As  such,  the  scope  for  action  of  the  EP  and  the  Commission  is 
limited to the powers specifically granted by the Treaties. 

The  Court  of  Justice,  then,  is  completely  excluded  from  any  possibility  of 
intervention,  with  the  exception  of  its  jurisdiction  to  monitor  compliance 
with  Article  40  of  TEU  and  to  review  the  legality  of  certain  decisions  as 
provided  for  by  the  second  paragraph  of  Article  275  of  the  Treaty  on  the 
Functioning  of  the  European  Union  (TFEU).  Article  40,  in  particular, 
contains a 'residual' clause, according to which  

the  implementation  of  the  common  foreign  and  security  policy  shall  not 
affect the application of the procedures and the extent of the powers of the 
institutions  laid  down  by  the  Treaties  for  the  exercise  of  the  Union 
competences referred to in Articles 3 to 6 of the Treaty on the Functioning 
of the European Union.  

 
 
 
 
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Despite the apparent narrowness of this concession, it must be disclosed that 
such  a  general  clause  could  theoretically  allow,  in  the  future,  significant 
creative judgments. Indeed, it could allow some kind of re-evaluation of the 
role that the EP and the Commission could play in this matter, through an 
interpretation of the Treaty of which the Court of Justice should take charge 
(see below, section VI).21 

With  regard  to  the  limited  competences  that  are  specifically  attributed  to 
the  EP  by  Title  V  on  the  common  foreign  and  security  policy,  the  most 
relevant  provision  is  Article  36.  This  concerns  the  duty  of  the  High 
Representative to inform and regularly consult the European Parliament on 
the main aspects and the basic choices of the common foreign and security 
policy  and  the  common  security  and  defence  policy.  The  High 
Representative must also ensure that the views of the European Parliament 
are duly taken into consideration. Article 36 then states that the European 
Parliament can address questions and make recommendations to the Council 
or to the High Representative, and that a debate on progress made in this area 
must be held twice a year. Apart from the right to be informed and consulted, 
the  EP  has  no  direct  decision-making  power  to  prevent  the  Council  from 
assuming certain choices of common foreign and security policy. Conversely, 
a certain influence could be exercised indirectly on the High Representative, 
who has the task, on the one hand, to implement the Council's decisions, but, 
on the other hand, also has to take care that the views of the EP are duly taken 
into consideration. However, we still remain in the field of moral suasion. 

Also  with  regard  to  the  regulation  of  the  Union's  common  security  and 
defence  policy,  the  Council  and  the  High  Representative  of  the  Union 
remain the undisputed protagonists of the decision-making processes. It is 
indeed the Council which, acting unanimously, decides to start a mission on 
the proposal of the High Representative or of a Member State. In short, the 
Council  holds  the  power  to  decide  the  entry  of  the  European  Union  in  an 
armed conflict. 

21  After all, the history of the Union is one of founding acts and deliberate institution-
building,  as  well  as  informal  and  gradual  institutional  evolution  where  common 
practices  have  been  codified  into  formal-legal  institutions;  see  Johan  P.  Olsen, 
'Reforming European Institutions of Governance' (2002) 40 Journal of Common 
Market Studies 581. 

 
 
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In addition, under Article 44, the Council may entrust the implementation 
of a task to a group of Member States which are willing and have the necessary 
capability for such a task. These Member States, in association with the High 
Representative,  shall  then  agree  among  themselves  on  the  management  of 
the task. This means that some delicate operational decisions related to the 
management  of  military  missions  carried  out  in  the  name  of  the  European 
Union will be taken only by the governments of the states entrusted together 
with the High Representative.  

Finally, it is still the Council that, as already mentioned, decides by qualified 
majority  the  constitution  of  PESCO  after  consulting  the  High 
Representative.  It  remains  then  the  protagonist  of  the  related  decision-
making processes, as emerges from Article 46 TEU.  

This  succinct  and  unexhaustive  description  suffices  to  demonstrate  the 
substantial  exclusion of  the European Parliament from the determinations 
that the EU can adopt in the area of the common security and defence policy. 
However, the need to provide for some forms of control on the part of the 
supranational Parliament, in such a delicate matter, is undeniable.  

It  must  be  considered  that  the 
'Community  method'  has  partially 
contaminated the decision-making processes relating to the former second 
pillar,22  especially  for  the  following  two  aspects.  First  of  all,  the  High 
Representative, who chairs the Foreign Affairs Council and who is also Vice-
President  of  the  Commission,  is  fully  involved  in  the  decisions  and  in  the 
implementation of decisions concerning the Union's tasks.23 Secondly, there 

22  The  'Community  method'  is  characterised  by  the  sole  right  of  the  European 
Commission to initiate legislation, by the co-decision power between the Council 
and the European Parliament and by the use of qualified majority voting in Council. 
It  contrasts  with  the  intergovernmental  method  of  operation  used  in  decision-
making,  according  to  which  the  Commission's  right  of  initiative  is  confined  to 
specific areas of activity, the Council generally acts unanimously and the EP has a 
purely consultative role.  
For  a  partially  different  opinion,  see  Leendert  Erkelens  and  Steven  Blockmans, 
'Setting up the European External Action Service: an act of institutional balance' 
(2012)  8  European  Constitutional  Law  Review  246,  for  which  the  post-Lisbon 
arrangements in the field of EU external action have resulted in a small move away 
from  the  'Community  method'  towards  a  more  intergovernmental  way  of  EU 
foreign policy. 

23 

 
 
 
 
 
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is limited openness to the rule of qualified majority instead of unanimity with 
regard to Council decisions. 

In any case, this partial contamination of the intergovernmental method that 
traditionally  reigned  in  matters  of  the  Union's  foreign  and  defence  policy 
barely hides the deep divide that still today, despite the progress made with 
the  Lisbon  Treaty,  separates  the  old  first  pillar  from  the  other  two.  In 
particular, the clear exclusion of the EP from the decision-making processes 
in  the  field  of  foreign  and  security  policy  represents  an  evident  break  with 
Community  method  and  contents.  Therefore,  the  governance  of  the 
common  security  and  defence  policy  has  a  series  of  problems  of  a 
'supranational constitutional' nature which are of crucial importance for the 
very  fate  of  the  European  Union  and  for  its  evolution  in  an  authentically 
democratic and federalist sense. 

IV. CONSTITUTIONAL REASONS FOR THE INVOLVEMENT OF THE 
EUROPEAN PARLIAMENT IN THE COMMON DEFENCE POLICY 

The  constitutional  reasons  for  the  European  Parliament's  involvement  in 
political  decisions  regarding  possible  Union  interventions  in  conflict 
scenarios are to be found first of all in the need to guarantee the values and 
general  principles  of  EU  law.  More  specifically,  these  reasons  concern  the 
need  to  respect:  1)  the  principle  of  representative  democracy  in  the 
organization  and  action  of  the  European  Union;  and  2)  the  principles  of 
institutional balance and of loyal cooperation between institutions. 

These  principles,  moreover,  are  closely  linked  to  other  fundamental 
constitutional principles, such as freedom, human dignity, equality, respect 
for human rights, including the rights of persons belonging to minorities, the 
rule of law and pluralism. These are values common to the Member States on 
which  the  European  Union  is  founded,  according  to  Article  2  TEU. 
Therefore,  compliance  with  the  former  may  also  have  effects  on  the 
guarantee of the latter. 

1. The Need to Respect the Democratic Principle  

Firstly, the European Parliament's lack of effective powers of control could 
seriously undermine the democratic principle, one of the values on which the 

 
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European Union is founded (Article 2 TEU). The Preambles and the general 
principles enshrined in  the Treaties, starting from the Single European Act 
and the Maastricht Treaty, contain a strong reference to the attachment to 
democracy,  the  commitment  to  strengthen  the  democratic  functioning  of 
the institutions, and the need to build a Europe where decisions are taken as 
close  as  possible  to  the  citizens.24  In  fact,  even  before  the  democratic 
principle found explicit recognition in the Treaties, it had been indicated as 
the foundation of the Community's constitutional system in the Declaration 
on  European  Identity  adopted  in  Copenhagen  in  December  1973  by  the 
Heads of State or Government. That Declaration affirmed the intention to 
'defend  the  principles  of  representative  democracy,  of  the  rule  of  law,  of 
social  justice  and  of  respect  for  human  rights',  which  'are  fundamental 
elements of the European Identity'.25 

Furthermore, the promotion of democracy has had strong recognition in the 
case  law  of  the  Court  of  Justice  of  the  European  Union,  starting  with  the 
Roquette  Frères  judgment  of  1980.26  In  that  sentence,  the  Luxembourg 
Court annulled a Council regulation for lack of a EP opinion, because the EP 
consultation  provided  for  by  the  Treaty  'is  the  means  which  allows  the 
Parliament to play an actual part in the legislative process of the Community'. 
The Court emphasized that, 'although limited, it reflects at Community level 
the  fundamental  democratic  principle  that  the  peoples  should  take part  in 
the exercise of power through the intermediary of a representative assembly'. 
Accordingly, 'due consultation of the Parliament in the cases provided for by 

24  On the democratic principle in the EU, see, among the others: Jos de Beus, 'Quasi-
National  European  Identity  and  European  Democracy'  (2001)  20  Law  and 
Philosophy  283;  Lindsay  Lloyd,  'European  approaches  to  democracy  promotion' 
(2010)  65  International  Journal  547;  Kalypso  Nicolaïdis,  'We,  the  Peoples  of 
Europe...' (2004) 83 Foreign Affairs 97; Joseph H. H. Weiler, 'The European Union 
Belongs to its Citizens: Three Immodest Proposals' (1997) 7 The Good Society 26; 
Elisabeth  Zoller,  'The  Treaty  Establishing  a  Constitution  for  Europe  and  the 
Democratic  Legitimacy  of  the  European  Union'  (2005)  12  Indiana  Journal  of 
Global Legal Studies 391. 

25  Declaration on European Identity, Copenhagen, 14 December 1973. 
26  Case 138/79 Roquette Frères v Council EU:C:1980:249. 

 
 
 
 
 
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the Treaty […]  constitutes an essential formality  disregard of which  means 
that the measure concerned is void'.27 

As is known, in the matter of common foreign and security policy, ruled by 
Title V TEU, there is no room for legislative acts.28 This could lead one to 
believe  that  it  is  not  also  essential  in  this  context  to  ensure  an  effective 
involvement of the EP in the decision-making process in order to respect the 
democratic  principle.  Nevertheless,  political  decisions  aimed  at  allowing  a 
military  action  imputable  to  the  European  Union  will  always  have  an 
enormous  impact  not  only  on  the  interests  of  all  Member  States  but  also, 
directly,  on  the  interests  of  European  citizens.  This  means  that,  in  the 
common  foreign  and  security  policy,  the  effective  involvement  in  the 
decision-making process of the European Parliament – the only institution 
democratically representative of the Europeans citizens – is the only way to 
ensure, albeit in a minimal form, respect for the principle of representative 
democracy. 

Moreover,  the  democratic  principle  today  finds  a  clear  and  explicit 
recognition in Article 10 TEU, according to which '[t]he functioning of the 
Union  shall  be  founded  on  representative  democracy'  and  '[c]itizens  are 
directly  represented  at  Union  level  in  the  European  Parliament'.  The 
democratic principle is also referred to in Chapter 1 of Title V of the TEU, 
concerning the 'General provisions on the Union's external action'. Article 
21, paragraph 1, TEU states that  

The  Union's  action  on  the  international  scene  shall  be  guided  by  the 
principles  which  have  inspired  its  own  creation,  development  and 
enlargement, and which it seeks to advance in the wider world: democracy, 
the  rule  of  law,  the  universality  and  indivisibility  of  human  rights  and 
fundamental freedoms, respect for human dignity, the principles of equality 
and solidarity, and respect for the principles of the United Nations Charter 
and international law.  

Paragraph  2(b)  of  Article  21  indicates  among  the  objectives  of  the  Union's 
external action the aim  to  'consolidate and support democracy, the rule  of 

27 

Ibid para 33.  

28  According to Article 24, paragraph 1, TEU '[…] The common foreign and security 
policy is subject to specific rules and procedures. […] The adoption of legislative 
acts shall be excluded […]'.  

 
 
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law,  human  rights  and  the  principles  of  international  law'.  And  again, 
paragraph 3 provides that:  

The Union shall respect the principles and pursue the objectives set out in 
paragraphs 1 and 2 in the development and implementation of the different 
areas of the Union's external action covered by this Title and by Part Five of 
the Treaty on the Functioning of the European Union, and of the external 
aspects of its other policies. 

It  follows  from  the  rules  of  the  Treaty  on  European  Union  that  the 
democratic  principle  is  one  of  the  constituent  values  of  the  common 
constitutional heritage capable of defining the common European identity. 
Furthermore,  it  is  one  of  the  objectives  pursued  by  the  European  Union 
through its external action and it is explicitly indicated by the Treaty as one 
of the principles that the Union must respect, including in the context of its 
external action.  

This demonstrates the presence of a contradiction between, on the one hand, 
the  abstract  affirmation  of  the  principle  of  representative  democracy  as  a 
fundamental  value  of  the  Union  and,  on  the  other  hand,  the  failure  to 
implement the principle in question in the part of the TEU concerning the 
common foreign and security policy. 

2. The Need to Respect Principles of Institutional Balance and Loyal Cooperation 

A similar conclusion can be reached by considering two other EU principles, 
closely  related  to  each  other  and,  for  this  reason,  worthy  of  being  treated 
together:  the  principle  of  institutional  balance  and,  above  all,  that  of  loyal 
collaboration  between  institutions,  both  provided  for  by  Article  13, 
paragraph  2,  of  the  TEU.29  Indeed,  both  these  principles  seem  to  impose, 
irrespective  of  the  need  for  'democracy'  mentioned  above,  a  greater 
involvement  of  the  European  Parliament  in  the  decision  to  intervene 
militarily. 

29  According  to  Article  13,  paragraph  2,  TEU  'Each  institution  shall  act  within  the 
limits  of  the  powers  conferred  on  it  in  the  Treaties,  and  in  conformity  with  the 
procedures,  conditions  and  objectives  set  out  in  them.  The  institutions  shall 
practice mutual sincere cooperation'.  

 
 
 
 
 
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The principle of  institutional balance states  that  every  institution  shall  act 
within  the  limits  of  the  powers  conferred  on  it  in  the  Treaties  and  must 
respect the competences attributed by the Treaties to the other institutions. 
This principle was clearly outlined by the Court of Justice in its judgment of 
22 May 1990, European Parliament v. Council, with which the right to bring an 
action for annulment was recognized to apply also to the EP. For the Court, 
the Treaties  

set  up  a  system  for  distributing  powers  among  the  different  Community 
institutions,  assigning  to  each  institution  its  own  role  in  the  institutional 
structure of the Community and the accomplishment of the tasks entrusted 
to the Community.30  

Moreover, '[o]bservance of the institutional balance means that each of the 
institutions must exercise its powers with due regard for the powers of the 
other institutions' and it 'also requires that it should be possible to penalize 
any breach of that rule which may occur'.31 Therefore the Court stated that:  

The absence in the Treaties of any provision giving the Parliament the right 
to  bring  an  action  for  annulment  may  constitute  a  procedural  gap,  but  it 
cannot  prevail  over  the  fundamental  interest  in  the  maintenance  and 
observance of the institutional balance laid down in the Treaties establishing 
the European Communities.32  

So  far,  the  institutional  balance  seems  mainly  aimed  at  preserving  the 
competences of the single institutions by imposing the observance of an ideal 
division of powers adapted to the sphere of the European Union. This first 
impression  could  give  rise  to  the  doubt  that  the  principle  of  institutional 
balance mainly concerns the former first pillar. In this context, indeed, the 
division  of  competences  between  the  institutions  crosses  the  issue  of  the 
distinction  between  the  legislative  and  the  executive  function.  Parliament, 
through the exercise of the important functions attributed to it, has a role of 

30  Case C-70/88 European Parliament v Council EU:C:1990:217, para 21.  
31 

Ibid para 22. 
Ibid para 26. 

32 

 
 
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primary  importance  in  the  formation  of  acts  and  therefore  also  of  the 
political will of the Union.33  

In contrast, in the governance of the subject referred to in Title V TEU, the 
distinction of functions operates within a completely different scheme (see 
Articles  24-26  TEU),  in  which  the  European  Council,  the  Council  and  the 
High  Representative  are  the  protagonists  of  a  basically  unitary  decision-
making  process.  The  latter  is  structured,  roughly,  on  three  levels:  in  a  first 
phase,  it  is  up  to  the  European  Council  to  set  the  general  objectives  and 
guidelines for the EU's action; in a second phase, it is up to the Council to 
take  concrete  decisions  in  accordance  with  those  general  guidelines;  and 
finally,  in  a  third  phase,  it  is  primarily  up  to  the  High  Representative  to 
implement  these  decisions.  Therefore,  in  the  context  of  Title  V  TEU, 
considering the very limited role played by the EP in this matter, it could be 
assumed  that  the  principle  of  institutional  balance  guarantees  only  the 
European  Parliament's  right  to  be  informed  and  consulted  by  the  High 
Representative on the basis Article 26 TEU.34 

However, such an interpretation appears reductive for at least three reasons. 
First of all, the principle of institutional balance has a dynamic, rather than a 
static,  nature.  This  is  evidenced  by  the  fact  that  this  principle  was  not 
originally  codified  and  that  its  evolution  went  hand  in  hand  with  the 
evolution  of  the  functions  of  the  European  Parliament,  legitimizing  the 
expansion of the attributions of the latter beyond the letter of the Treaties.35 
Indeed,  this  principle  is  firmly  linked  to  both  the  principle  of  loyal 

34 

33  On the evolution of the institutional balance between Council, European Council, 
Commission and European Parliament, see Paul Craig, 'The Community Political 
Order' (2003) 10 Indiana Journal of Global Legal Studies 79. 
See above, section III. 
Suffice it to mention what happened with reference to the budgetary procedures. 
In this context, the powers of the European Parliament have gradually expanded, 
until The Lisbon Treaty put the EP on an equal footing with the Council in the 
annual budgetary procedure. 

35 

 
 
 
 
 
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collaboration36 and the democratic principle,37 so that the evolution of these 
three fundamental constitutional elements of the EU is simultaneous.  

Secondly, the principle of institutional balance, which has also been defined 
'normative,  actionable  formal  principle',38  works  with  a  clear 
as  a 
constitutional  vocation.  Although  this  principle  is  not  comparable  to  the 
principle  of  division  of  powers  as  it  has  evolved  and  transformed  in  the 
constitutional  state  experiences,  it  is  inspired  by  state  traditions.  This 
implies that the area of the common foreign and security policy cannot be 
totally extraneous to the possibility for the EP to really influence the most 
important decisions, such as launching EU military missions in situations of 
armed  conflict.  This  would  breach  the  general  principle  of  the  balance  of 
powers understood as a general criterion of a constitutional nature, referable, 
at least in theory, to the entire governance of the Union.  

Finally, it must be considered that the Lisbon Treaty has strengthened the 
implications  and  the  dynamic  dimension  of  the  principle  of  institutional 
balance.  It  increasingly  draws  inspiration  from  the  model  of  the  state 
parliamentary  democracies,  as  demonstrated,  for  example,  by  the  new 
formulation  of  the  provisions  concerning  the  procedure 
for  the 
Commission's  formation  and  the  regulation  of  legislative  acts,  where  the 
powers of the EP have been expanded. It is very difficult to believe that the 
governance of the subjects related to in Title V is completely extraneous to 

36 

37 

In this sense see the position of Roland Bieber, 'The Settlement of Institutional 
Conflicts on the Basis of Article 4 of the EEC Treaty' (1984) 21 Common Market 
Law  Review  505,  which  criticizes  the  aleatory  character  and  the  rigidity  of  the 
principle  of  institutional  balance  outlined  by  the  Court  of  Justice,  while 
emphasizing  the  importance  of  the  principle  of  autonomy  of  the  institutions  in 
synergy  with  the  principle  of  cooperation  and  the  dynamic  character  of  the 
institutional system. Without reaching Bieber's conclusions, however, the idea of 
a  dynamic  dimension  of  the  balance  of  powers,  as  evidenced  by  the  close 
connection with the principle of loyal cooperation, is nevertheless shareable. In the 
writers' opinion, this dynamic evolution has long been (slowly) proceeding in the 
direction  of  a  continuous  expansion  of  parliamentary  attributions  towards  the 
model (for now far) represented by the parliamentary State democracies. 
See  Götz  Von  Hippel,  La  séparation  de  pouvoirs  dans  les  communautés  européennes 
(Nancy, Publications du Centre européen universitaire 1965) 4-5. 

38  Case C-101/08 Audiolux and Others EU:C: 2009:626, Opinion of AG Trstenjak, para 

105.  

 
 
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this  progressive  adoption  of  solutions  inspired  by  the  state  models  of 
organization of powers, especially if we consider that the Lisbon Treaty has 
removed the pillar structure. 

The principle of institutional balance is, as mentioned, closely linked to that 
of  loyal  collaboration.  The  latter  was  originally  provided  for  only  with 
reference  to  the  relationships  between  Member  States  and  the  European 
Community,  being  imposed  by  the  then  Article  10  TEC  (now  Article  4, 
paragraph  3,  TEU)  on  the  Member  States  towards  the  Community. 
Progressively, the Court of Justice derived from it also the principle of sincere 
cooperation between the European institutions, today explicitly enshrined in 
Article 13(2) TEU. In particular, in the judgment of 27 September 1988, Greece 
v. Council, the Luxembourg Court affirmed that  

the operation of the budgetary procedure, as it is laid down in the financial 
provisions of the Treaty, is based essentially on inter-institutional dialogue. 
That  dialogue  is  subject  to  the  same  mutual  duties  of  sincere  cooperation 
which, as the Court has held, govern relations between the Member States 
and the Community institutions.39 

Concerning  the  relationship  between  the  EP  and  the  Council  in  the 
consultation  procedure,  in  its  ruling  of  30  March  1995,  case  C-65/93,  the 
Court held that, even  in this  circumstance, the same  mutual obligations of 
sincere cooperation governing the relationships between Member States and 
the  Community  institutions  prevail.40  Furthermore,  in  its  judgment  of  24 
November 2010, C-40/10, the Court of Justice stated that the Commission 
'must observe the duty of cooperation in good faith between the institutions, 
recognised by the caselaw […] and, since the entry into force of the Treaty of 
Lisbon, expressly enshrined in the second sentence of Article 13(2) TEU'.41 

In  the  case  of  military  interventions  in  conflict  scenarios  decided  by  the 
Union, the respect for the principle of institutional balance and for the duty 
of sincere cooperation between institutions could undoubtedly establish an 
obligation to involve the EP in the relevant political decision.  

39  Case 204/86 Greece v Council EU:C:1988:450, para 16. 
40  Case C-65/93 European Parliament v Council EU:C:1995:91, para 23.  
41  Case C-40/10 Commission v Council EU:C:2010:713, para 80. 

 
 
 
 
 
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3. Response to Possible Objections to Greater Parliamentary Involvement 

Having clarified the constitutional arguments for a greater EP involvement, 
the possible objections should also be considered. Among these objections, 
the  following  must  be  addressed.  First  of  all,  in  many  cases,  the  political 
decision to start a military action requires speed and unity of purpose, and the 
secrecy of operational plans is often a necessary condition for their effective 
realization.  Secondly,  the  alleged  democratic  deficit  of  the  supranational 
decision-making processes could be considered filled by the fact that, since 
in this matter the rule of unanimity is mainly applied, a military mission of the 
Union would presuppose a complete sharing by all the governments involved 
and, indirectly, also by the national parliaments exercising control over them. 
Thirdly, the exclusion of the European Parliament from the decision-making 
processes outlined in Title V could be considered balanced by the presence 
of other forms of parliamentary control,  such as the power to be informed 
and consulted, the power of the purse and the power of no-confidence.  

However, these objections do not invalidate the thesis of the necessary EP 
involvement  in  the  decision-making  processes  related  to  future  military 
missions of the EU. As for the first, it must be highlighted that the executive 
can  always  undertake  military  actions  without  the  prior  involvement  of 
parliament  in  emergency  cases.  In  any  case,  the  need  to  guarantee  the 
effectiveness  and  efficiency  of  military  missions  can  certainly  justify  a 
proportionate  and  reasonable  limitation  of  the  supervisory  power  of 
Parliament, but can never lead to its complete exclusion. 

With  respect  to  the  second  argument,  any  provision  for  parliamentary 
scrutiny  within  the  Member  States  is  not  enough  to  solve  the  problem  of 
democratic  deficit  caused  by  a  lack  of  parliamentary  control  at  the 
supranational  level.  On  the  basis  of  Article  46  TEU,  when  decisions 
concerning PESCO are to be taken – by a qualified majority or by unanimity, 
as  the  case  may  be  –  only  members  of  the  Council  representing  the 
participating  Member  States  shall  take  part  in  the  vote.  This  means  that, 
within  PESCO,  some  important  decisions  do  not  involve  all  the  Union's 
Member  States,  but  only  the  participating  members.  Despite  this,  such 
decisions  are  taken  in  the  name  of  the  European  Union  and  may  have 
significant  effects  on  the  interests  of  the  entire  Union  itself,  of  all  its 
members  and  of  European  citizens.  This  means  that,  according  to  the 

 
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principle of subsidiarity,42 by reason of the scale and effects of such decisions, 
the  involvement  of  national  parliaments  is  not  sufficient  and  an  effective 
involvement of the European Parliament is necessary. 

As for the third argument, first of all it must be observed that, although it is 
true that the power to be informed and consulted facilitates transparency and 
debate  on issues, it nevertheless  turns  out  to be  a  blunt weapon  if it  is  not 
accompanied by the power of  prior authorization to the use of  force or by 
other  possible  forms  of  indirect  control  of  military  power.  Regarding  the 
Parliament's power to control military spending through the approval of the 
budget  and of the  spending laws,  in  the  current EU  framework and  within 
PESCO, the possibility of an effective control of military expenditure by the 
EP seems to be excluded.  

As  for  the  power  of  no-confidence  towards  the  executive,  the  EP  has  no 
power to politically undermine the Council by voting on a motion of censure. 
The  motion  of  censure  under  Article  234  TFEU  can  affect  the  High 
Representative as a member of the Commission; in that case, however, the 
latter  resigns  only  with  regard  to  the  functions  exercised  within  the 
Commission.  Consequently,  with  reference  to  the  executive  and 
representation powers exercised in the field of common foreign and defence 
policy, the High Representative seems not to be parliamentary accountable.  

V. MEMBER STATES' REQUIREMENT OF PARLIAMENTARY 
INVOLVEMENT IN MILITARY MISSIONS ABROAD 

Another reason in support of the European Parliament's involvement in EU 
defence  and  military  policies  is  related  to  the  existence  of  a  constitutional 
tradition common to the Member States that could be applicable also to the 
Union's legal system. We refer to the progressive framing, in the context of 
European constitutional law, of a constitutional principle that requires prior 

42  According to Article 5, paragraph 3, TEU, 'Under the principle of subsidiarity, in 
areas which do not fall within its exclusive competence, the Union shall act only if 
and in so far as the objectives of the proposed action cannot be sufficiently achieved 
by the Member States, either at central level or at regional and local level, but can 
rather, by reason of the scale or effects of the proposed action, be better achieved 
at Union level'. 

 
 
 
 
 
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parliamentary  involvement  in  the  decision  to  participate  in  a  military 
mission. 

The  comparative  analysis  carried  out  by  various  scholars  and  research 
institutes  clearly  demonstrates  that  the  principle  of  prior  parliamentary 
approval of significant military missions is prevalent in the  Member States' 
legal  systems,  as  a  constitutional  rule  explicitly  stated  or  as  an  implicit 
constitutional principle.43  

In some legal systems, such as Denmark, the Netherlands and Sweden, the 
necessary  parliamentary  authorization  for  the  use  of  military  force  is 
expressly provided for. In Germany the Bundesverfassungsgericht, with a ruling 
of 1994, established that from the Grundgesetz a constitutional principle can 
be derived,  according  to  which the  use of  the armed forces abroad, even  if 
decided  by  the  government,  is  subject  to  the  prior  authorization  by 
parliament.  Following  this  and  a  subsequent  similar  ruling,  the  German 
legislator  has  accepted 
(implicit)  constitutional  principle  of 
parliamentary  authorization  for  the  actions  of  the  German  armed  forces 
abroad.44  Thanks  to  this,  in  Germany 
'the  Bundestag  has  been  an 

the 

43 

See,  for  example,  Roman  Schmidt-Radefeldt,  Parlamentarische  Kontrolle  der 
internationalen Streitkräfteintegration (Duncker und Humblot 2005); Hans Born and 
Heiner Hänggi (eds), The "Double Democratic Deficit": Parliamentary Accountability 
and  the  Use  of  Force  under  International  Auspices  (Ashgate  2004);  Hans  Born,  Axel 
Dowling, Teodora Fuior and Suzana Gavrilescu, Parliamentary Oversight of Civilian 
and Military ESDP Missions: The European and National Levels (European Parliament 
2007), study requested by the European Parliament Subcommittee on Security and 
Defence;  Sandra  Dieterich,  Hartwig  Hummel,  Stefan  Marschall,  'Strengthening 
Parliamentary  "War  Powers"  in  Europe:  Lessons  from  25  National  Parliaments' 
(2008)  DCAF  Policy  Paper  n.  27.  Conversely  Wolfgang  Wagner,  Dirk  Peters, 
Cosima Glahn, 'Parliamentary War Powers Around the World, 1989-2004. A New 
Dataset' (2010) DCAF Policy Paper n. 22, claim that 'There is no discernible trend 
towards a parliamentarisation of war powers' and note that 'When existing rules 
are changed, parliaments are usually the losers' because 'several central and eastern 
European states have abolished parliament ex ante veto powers in the process of 
Nato  accession';  however  these  authors  could  not  consider  the  subsequent 
parliamentary powers evolution in some European countries, like France, Britain 
and Italy (see below in this section). 

44  BVerfGE 90, 286. The principle that requires a prior parliamentary authorization 
of  the  Bundestag  for  the  use  of  armed  forces  was  subsequently  expanded  and 

 
 
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exceptionally powerful and active parliament in controlling the deployment 
of  armed  forces'.45  In  Italy,  Article  78  of  the  Constitution  states  that 
'Parliament has the authority to declare a state of war and vest the necessary 
powers  into  the  Government'.  As  such,  it  does  not  contain  the  explicit 
provision  of  a  power  of  authorization  of  the  parliament  concerning  the 
military  missions  that  cannot  be  defined  as  'war'  in  the  formal  sense.  Yet, 
following the correct interpretation of the constitutional dictate, law no. 145 
of  2016  ('Provisions  concerning  the  participation  of  Italy  in  international 
missions') provides, in Article 2, that the government deliberations regarding 
participation in international missions are transmitted to the Chambers. The 
latter shall 'promptly discuss and [...] authorize for each year the participation 
of  Italy  in  international  missions,  possibly  defining  commitments  for  the 
Government, or deny the authorization'. 

Moreover, with the new millennium, a tendency to strengthen parliament's 
influence on the exercise of military power has emerged, albeit in different 
forms and sizes, in other European states. Even if it refers to a state that is set 
to leave the European Union, the example of what happened in the United 
Kingdom  is  extremely  significant.  In  the  UK,  the  Cabinet  Manual  of  2011 
recognized  the  existence  of  a  new  constitutional  convention  that  imposed 
the  rule,  albeit  not  'justiciable',  of  the  prior  involvement  of  the  House  of 
Commons  in  the  decision-making  process  concerning  the  use  of  military 
force in conflict situations.46 As such, a full debate and a substantive vote by 
the lower House today seem to have become necessary steps – at least on the 
conventional  level  –  to  undertake  any  significant  military  action,  with  the 
exception of emergency cases.47 In France, although the decision to intervene 

strengthened  by  the  Bundesverfassungsgericht  itself  on  the  occasion  of  another 
important ruling of 7 May 2008 (BVerfGE 121, 135). 

45  Wolfgang  Wagner,  'The  Bundestag  as  a  Champion  of  Parliamentary  Control  of 

Military Missions' (2017) 35 Sicherheit und Frieden 60. 

46  The Cabinet Manual. A Guide to Laws, Conventions and Rules on the Operation 

47 

Of Government, paragraph 5.38.  
See Philippe Lagassé, 'Parliament and the War Prerogative in the United Kingdom 
and  Canada:  Explaining  Variations  in  Institutional  Change  and  Legislative 
Control' (2017) 70 Parliamentary Affairs 280; Gavin Phillipson, Parliament's Role in 
the Use of Military Action after the Syria Vote (presentation at The Constitution Unit, 
University College London 2014); James Strong, 'Why Parliament Now Decides on 

 
 
 
 
 
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belongs  to  the  executive,  the  loi  constitutionnelle  no.  2008-724  amended 
Article 35 of the Constitution, adding three new paragraphs to strengthen the 
parliament's role in the determinations concerning the employment of the 
French  armed  forces  abroad.  In  particular,  it  introduced  a  duty  of  timely 
information on the part of the  government and, above all, the  parliament's 
power to authorize the extension of a military action lasting more than four 
months. Finally, in 2003, in the Cyprian presidential system a veto power of 
parliament  concerning  the  deployment  of  the  armed  forces  abroad  was 
introduced. 

It is not possible to describe here the different constitutional and legislative 
procedures related to  the  decision to intervene militarily in  all 28  Member 
States of the European Union. However, the abovementioned comparative 
analysis shows that, in the European context, a constitutional principle – in 
some cases implicit, in other explicit – for which, outside of emergency cases, 
the involvement of the national parliament in the decision to use the armed 
forces  in  conflict  scenarios  is  necessary,  seems  to  have  gradually  been 
established at the level of the legal systems of the Member States. 

The  few  exceptions  that  exist  concern  almost  exclusively  those  Member 
States that do not have a parliamentary form of government, such as France48 
or Poland, which have a semi-presidential system, or Cyprus (where, as said, 
in 2003 a parliamentary veto power was introduced), which has a presidential 
system.49 

In  some  countries,  such  as  Hungary  and  other  Eastern  European  states,  a 
distinction between international mandatory operations (including NATO 
and  EU  missions)  and  other  operations  is  made,  in  order  to  exempt  the 
former  from  the  requirement  of  parliamentary  approval.  This  means  that 
parliamentary  approval  is  necessary  for  'other  operations',  while  it  is  not 
necessary  for  international  mandatory  operations,  including  EU  missions. 
This demonstrates, from a different point of view, the need to involve at least 

War: Tracing the Growth of the Parliamentary Prerogative through Syria, Libya 
and Iraq' (2015) 17 British Journal of Politics and International Relations 604. 
48  However,  as  said,  the  loi  constitutionnelle  no.  2008-724  has  given  parliament  an 

49 

increased role. 
See Article 136 of the Polish Constitution, Article 35 of the French Constitution 
and Article 50 of the Constitution of Cyprus. 

 
 
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the European Parliament in the defence policy-making process, in order to 
ensure parliamentary control also on these interventions.  

It should be noted that some scholars are skeptical towards the hypothesis of 
a  progressive  parliamentarisation  of  war  powers 
in  contemporary 
democracies.  However,  most  of  them  recognise  that  state  systems  always 
establish,  if  not  a  veto  power,  at  least  an  involvement  of  parliament  in  the 
decision-making  processes,  for  example  through  the  consultation  of  the 
whole Parliament or of individual MPs within the defence councils.50  

In  addition  to  those  general  principles  of  European  Union  law  originating 
from  the  case-law  of  the  Court  of  Justice  and  belonging  to  the  primary 
sources  of  law,  there  are  also  those  principles  which  are  derived  from  the 
parallel  examination  of  the  national  legal  systems,  and  which  are  therefore 
borrowed  from  the  'common  constitutional  traditions'  of  the  Member 
States. The Treaty on European Union explicitly mentions them in Article 6, 
paragraph 3, where it states that  

Fundamental  rights,  as  guaranteed  by  the  European  Convention  for  the 
Protection of Human Rights and Fundamental Freedoms and as they result 
from  the  constitutional  traditions  common  to  the  Member  States,  shall 
constitute general principles of the Union's law.  

Even  the  Treaty  on  the  Functioning  of  the  European  Union  cites  them  in 
Article 340, paragraph 2:  

In the case of non-contractual liability, the Union shall, in accordance with 
the general principles common to the laws of the Member States, make good 
any damage caused by its institutions or by its servants in the performance of 
their duties. 

Although  Article  6 TEU  refers  only to fundamental rights and Article  340 
TFEU  has  a  scope  limited  to  the  non-contractual  liability  of  the  EU,  the 
Court of Justice has made use in many cases – and also in different matters – 
of  the  principles  common  to  the  national  legal  systems,  both  in  the 

50  Wagner, Peters, Glahn (n 44) 26: 'Taking a closer look at the deployment rules in 
all countries, it becomes clear that both the complete exclusion of parliament from 
decision-making over military deployments and full-blown parliamentary veto over 
all military operations are only two extreme cases; in between there is a wealth of 
different forms of parliamentary inclusion'. 

 
 
 
 
 
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interpretation  of  written  law  and  to  fill  the  gaps  in  the  Treaties.  The 
reference  to  the  principles  which  are  generally  accepted  in  the  national 
systems is in fact constant in the jurisprudence of the European Court. 

The Court has expressly underlined that, in pursuance of the tasks conferred 
on it by the Treaty, it can rule  

in  accordance  with  generally  accepted  methods  of  interpretation,  in 
particular by reference to the fundamental principles of the Community legal 
system and, where necessary, general principles common to the legal systems 
of the Member States.51  

It has also affirmed that  

the second paragraph of Article 215 of the Treaty [now Article 340 TFEU] 
refers,  as  regards  the  non-contractual  liability  of  the  Community,  to  the 
general principles common to the laws of the Member States, from which, in 
the absence of written rules, the Court also draws inspiration in other areas 
of Community law.52 

Furthermore, it is not necessary that these common principles are in force in 
all Member States. The construction of the 'synthesis' between the various 
legal  systems  by  the  Court  and  the  identification  of  the  solution  to  be 
transposed at the supranational level are not subordinated to the number of 
convergent systems, but to the quality of the solution to be chosen. In other 
words,  the  comparative  elements  deriving  from  the  examination  of  the 
national  legal  systems  constitute  a  source  of  inspiration  within  which  the 
Court selects the instruments that are most suitable for the objectives and 
structure of the European legal order. 

In  light  of  the  elements  referred  to,  the  principle  of  prior  parliamentary 
authorization of armed interventions – which is today provided for by many 
European  countries  –  could  be  considered  as  a  'common  principle  for  the 
Member  States'.  This  constitutes  a  further  and  independent  reason,  in 
addition  to  those  indicated  in  section  IV,  for  justifying  the  need  for 
involvement of the EP in the decision of an EU military intervention. 

51 

52 

Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur and Factortame EU:C:1996:79, 
para 27. 
Ibid para 41. 

 
 
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VI. THE PROSPECTS OF ESTABLISHING A POWER OF CONTROL OF THE 
EUROPEAN PARLIAMENT OVER EU MILITARY MISSIONS 

At  present,  two  perspectives  can  be  glimpsed  for  the  involvement  of  the 
European  Parliament  in  the  decision-making  processes  related  to  the 
possible  future  EU  military  missions:  the  first  on  the  basis  of  existing 
regulation, the second on the basis of regulation that could be approved in 
the future. 

1. Reform Based on Existing Regulation 

According to the current legislation, the power of  control of the European 
Parliament could already be affirmed by way of interpretation, as shown by 
the analysis carried out in the previous section. In this regard, we must also 
consider the possibility of an intervention by the EU Court of Justice, which 
could affirm this principle with a binding ruling, thus completing the EU law 
under this specific aspect. Article 275 TFEU does indeed state that the Court 
of Justice 'shall not have jurisdiction with respect to the provisions relating 
to the common foreign and security policy nor with respect to acts adopted 
on  the  basis  of  those  provisions'.  However,  pursuant  to  paragraph  2  of  the 
same article, 'the Court shall have jurisdiction to monitor compliance with 
Article  40  of  the  Treaty  on  European  Union'  and  to  rule  on  certain 
proceedings. In accordance with Article 40 TEU:  

The  implementation  of  the  common  foreign  and  security  policy  shall  not 
affect the application of the procedures and the extent of the powers of the 
institutions  laid  down  by  the  Treaties  for  the  exercise  of  the  Union 
competences referred to in Articles 3 to 6 of the Treaty on the Functioning 
of the European Union.  

Using this competence established by Article 275 TFEU, the Court of Justice 
could 're-evaluate' the role of the EP and resolve by means of interpretation 
what – otherwise – would appear to be a serious illogicality of the EU legal 
system.53  Something  similar  happened  in  Germany,  where,  as  already 

53  The  Court  of  Justice  has  already  had  occasion  to  deal  with  the  EP's  role  in  the 
external action of the Union, even if with regard to the conclusion of international 
agreements concerning also the CFSP and not to the specific area of defence and 
military  missions.  The  EU  Court  in  two  cases  has  partly  accepted  the  European 
Parliament's claims, annulling two Council's decisions because of the infringement 

 
 
 
 
 
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mentioned,  the  principle  involved  was  first  introduced  by  the  Federal 
Constitutional Court54 and then developed by the legislator.55 

Regardless of the possible intervention by the Court, institutional practice 
can  always  compensate  for  the  lack  of  parliament's  'constitutional  war 
powers', as demonstrated by the constitutional tradition of several Member 
States. Even in these contexts, constitutional law often does not provide an 
exhaustive regulation of parliamentary powers of war. Firstly, this is because 
constitutional  texts  have  not  been  updated  in  this  area  and  therefore  are 
influenced by the now obsolete concept of war in the formal sense. Secondly, 
it  is  inevitable  and  even  appropriate  that  the  written  constitutions  leave 
much  of  the  regulation  of  this  complex  subject  to  the  organic  laws 
implementing 
rules, 
conventions and application practices. The example of Belgium is significant 
in this regard. In the silence of the  constitution, which deals only with the 
king's  power  to  declare  war,56  a  practice  developed  that  provides  for  the 
allocation  to  the  parliament  of  the  power  to  authorize  the  government's 

constitutional  provisions,  parliamentary 

the 

of the information requirement laid down in Article 218(10) TFEU. According to 
this rule, Parliament must be 'immediately and fully informed at all stages of the 
procedure'  with  reference  to  all  international  agreements  concluded  by  the 
European Union, including those within the scope of the CFSP. This obligation 'is 
prescribed  in  order  to  ensure  that  the  Parliament  is  in  a  position  to  exercise 
democratic  scrutiny  of  the  European  Union's  external  action'  (Case  C-658/11 
European  Parliament  v  Council  EU:C:2014:2025,  para  79).  Therefore,  '[w]hile, 
admittedly, the role conferred on the Parliament in relation to the CFSP remains 
limited, since the Parliament is excluded from the procedure for negotiating and 
concluding agreements relating exclusively to the CFSP, the fact remains that the 
Parliament  is  not  deprived  of  any  right  of  scrutiny  in  respect  of  that  European 
Union  policy'  (Case  C-263/14  European  Parliament  v  Council  EU:C:2016:435,  para 
69).  Indeed  'participation  by  the  Parliament  in  the  legislative  process  is  the 
reflection, at Union level, of a fundamental democratic principle that the people 
should  participate  in  the  exercise  of  power  through  the  intermediary  of  a 
representative assembly' (ibid para 70). 
See the rulings of the Bundesverfassungsgericht of 12 July 1994 (BVerfGE 90, 286) and 
of 7 May 2008 (BVerfGE 121, 135).  

54 

55  On  18  March  2005  the  German  Parliament  passed  an  Act  ('Parliamentary 
Participation  Act')  requiring  in  principle  prior  parliamentary  consent  for  the 
'deployment of armed forces abroad' (2005, Bundesgesetzblatt I 775). 
See Article 167 of Belgian Constitution.  

56 

 
 
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decision to intervene militarily. Indeed, the Belgian practice provides for the 
instrument of the resolution parlementaire. In Italy, as mentioned in section V, 
a very similar practice was recently codified within a new ordinary law. 

Therefore,  as  already  seen  in  other  fields,  even  in  this  area  the  Union's 
institutional  practice  could  take  the  cue  from  the  aforementioned  trends, 
which  now  concern  a  large  part  of  the  Member  States'  legal  systems.  The 
'contamination' of the multilevel systems, the importance of comparative law 
in  the  courts'  judgments  and  the  influence  of  the  common  constitutional 
traditions  of  the  Member  States  suggest  that,  at  least  theoretically,  such  a 
legal  solution  could  also  be  pursued  within  the  current  institutional 
framework of the Union. 

2. Reform Based on Future Regulation 

The principle of the prior parliamentary authorization of the Union's tasks 
(or  at  least  of  an  effective  involvement  of  the  European  Parliament  in  the 
relevant  decision-making  process)  could  be  introduced  in  the  European 
context also through the inclusion within the TEU of a rule similar to that 
explicitly laid down in the constitution of some Member States. For example, 
Article 16 of Chapter 15 of the Swedish Constitution ('Deployment of armed 
forces') states that:  

The  Government  may  send  Swedish  armed  forces  to  other  countries  or 
otherwise  deploy  such  forces  in  order  to  fulfil  an  international  obligation 
approved  by  the  Riksdag.  Swedish  armed  forces  may  also  be  sent  to  other 
countries or be deployed if: 1. it is permitted by an act of law setting out the 
conditions for such action; or 2. the Riksdag permits such action in a special 
case.57 

Article 100 of the Constitution of the Netherlands provides that  

1. The Government shall inform the States General in advance if the armed 
forces  are  to  be  deployed  or  made  available  to  maintain  or  promote  the 
international legal order. This shall include the provision of humanitarian aid 
in the event of armed conflict.  

57  The Constitution of Sweden <https://bit.ly/2QE6pAR> accessed 31 May 2019.  

 
 
 
 
 
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PESCO and the Prospect of a European Army 

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2. The provisions of paragraph 1 shall not apply if compelling reasons exist to 
prevent the provision of information in advance. In this event, information 
shall be supplied as soon as possible.58 

Article 19, paragraph 2, of the Constitution of Denmark states that:  

Except for purposes of defence against an armed attack upon the Realm or 
Danish forces the King shall not use military force against any foreign state 
without the consent of the Folketing. Any measure which the King may take 
in  pursuance  of  this  provision  shall  immediately  be  submitted  to  the 
Folketing.  If  the  Folketing  is  not  in  session  it  shall  be  convoked 
immediately.59  

Furthermore, according to paragraph 3 of Article 19:  

The  Folketing  shall  appoint  from  among  its  Members  a  Foreign  Affairs 
Committee, which the Government shall consult prior to the making of any 
decision of major importance to foreign policy. Rules applying to the Foreign 
Affairs Committee shall be laid down by Statute.  

Therefore,  the  theoretical  possibilities  of  establishing  –  by  way  of 
interpretation  or  through  a  revision  of  the  Treaties  –  a  power  of  effective 
control of the European Parliament on EU military missions exist. However, 
it is necessary, first of all, to raise awareness that the current TEU rules on the 
role  of  the  European  Parliament  in  the  common  defence  policy  are  largely 
inadequate.  

VII. CONCLUSIONS 

Contemporary democracies must strike a difficult balance between the need 
for effectiveness and efficiency of military interventions and the demand for 
full democratic control over the use of force. In the European context, many 
constitutions explicitly or implicitly find this balance in the allocation to the 
executive body of the decision-making power to commence a military action 
on the one hand, and of the power of prior approval of such decision to the 
parliamentary body on the other. Generally speaking, the possible complete 

58  The Constitution of the Kingdom of the Netherlands <https://bit.ly/2oz6nMU> 

accessed 31 May 2019.  

59  The  Constitutional  Act  of  Denmark  <http://www.stm.dk/_p_10992.html> 

accessed 31 May 2019.  

 
 
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exclusion of parliamentary control over the decision-making process related 
to the commencement of a military action can only be justified as a last resort, 
in the presence of a serious and immediate threat to national security. 

Moving  to  the  supranational  level,  despite  the  gradual  construction  of  a 
European supranational military power lastly increased by PESCO, the EU 
defence governance does not provide for any adequate form of parliamentary 
control.  The  presence  of  a  European  Parliament  with  a  direct  popular 
election, representative of European citizens and equipped with fundamental 
functions within the EU which, nevertheless, cannot intervene with a truly 
incisive  power  in  the  determination  of  the  common  security  and  defence 
policy, appears to be contradictory.  

The lack of involvement of the EP in this area conflicts, first and foremost, 
with some important EU general principles, such as democracy, institutional 
balance  and  subsidiarity,  which  in  turn  are  linked  to  other  principles  like 
equality, respect for human rights and pluralism. Moreover, it does not take 
into account the progressive framing, in almost all European countries, of a 
constitutional principle that requires the prior parliamentary involvement in 
the decision to participate in a military mission. This could be considered as 
a 'common principle for the Member States', applicable also to the Union's 
legal  system,  being  moreover  linked  to  the  democratic  principle,  to  the 
principle  of  institutional  balance  and  to  the  principle  of  mutual  sincere 
cooperation between institutions. 

There  are  important  arguments  for  greater  EP  involvement.  Political 
decisions  aimed  at  allowing  a  military  action  imputable  to  the  European 
Union have enormous direct impact on the interests of all European citizens. 
The parliamentary body is the only one that allows the full involvement of all 
the  political  forces  represented  in  it,  so  that  the  opposition  can  give  its 
fundamental contribution to the discussion, whatever the majority decides. 
This  guarantees  the  complexity,  depth  and  transparency  of  the  decision-
making processes. 

Moreover,  although  for  now  there  is  no  certainty  about  the  concrete 
development prospects of the Union's foreign and defence policy and about 
future  EU  military  missions,  it  can  reasonably  be  expected  that  the 
enhancement of the EP's role could lead to the rejection of some – or several 

 
 
 
 
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– of these missions. For these reasons, establishing a power of control of the 
European Parliament in the context of common security and defence policy 
is  a  necessary  step  for  the  evolution  of  the  European  Union  in  a  genuinely 
democratic and federalist sense. 

 
 
WHICH COURTS MATTER MOST? MEASURING IMPORTANCE IN  
THE EU PRELIMINARY REFERENCE SYSTEM 

Michal Ovádek,* 

 Wessel Wijtvliet† and Monika Glavina‡ 

In this article we contribute to a recent strand of literature that revisits the role of 
hierarchically different national courts in the process of European integration. While 
the  received  view  emphasizes  the  dominance  of  lower  courts  in  the  preliminary 
reference  procedure,  more  recent  work  documents  the  rise  of  peak  courts  as  key 
interlocutors of the Court of Justice of the European Union (CJEU). Our contribution 
adds a hitherto underexplored variable to the existing research by focusing not only on 
how many references national courts send to Luxembourg but also what importance 
the CJEU attributes to each individual case. We find that peak court references are 
generally  treated  as  more  important  than  questions  submitted  by  non-peak  courts. 
Consequently,  peak  courts  have  bolstered  their  position  vis-à-vis  the  CJEU  in  the 
process  of  legal  integration.  We  base  our  findings  on  the  most  comprehensive 
preliminary rulings dataset to date (n = 10,609) that includes all cases received and 
decided by the Court between 1961 up to and including 2018. 

Keywords:  CJEU,  preliminary  references,  national  courts,  quantity  vs. 
quality, court formation 

TABLE OF CONTENTS 

I. INTRODUCTION ................................................................................................. 122 

II. NATIONAL COURTS' PARTICIPATION IN THE REFERRAL SYSTEM ............. 123 

* 

PhD  candidate  at  KU  Leuven  Faculty  of  Law,  Centre  for  Legal  Theory  and 
Empirical  Jurisprudence,  michal.ovadek@kuleuven.be.  The  authors  gratefully 
acknowledge financial support from European Research Council Grant No. 638154 
(EUTHORITY). 

†  Research  fellow  at  KU  Leuven  Faculty  of  Law,  Centre  for  Legal  Theory  and 
Empirical Jurisprudence, and Legal Engineer at Loyens & Loeff, the Netherlands, 
wessel.wijtvliet@kuleuven.be. This article has been written in a personal capacity 
and does not necessarily reflect the views of Loyens & Loeff or any other natural 
person or entity. Neither is it intended as, nor does it constitute, legal or tax advice. 
‡  Research  fellow  at  KU  Leuven  Faculty  of  Law,  Centre  for  Legal  Theory  and 

Empirical Jurisprudence, monika.glavina@kuleuven.be. 

EJLS 12(1), April 2020, 121-155 

 doi:10.2924/EJLS.2019.014 

 
 
 
 
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European Journal of Legal Studies  

{Vol. 12 No. 1 

III. THEORETICAL EXPECTATIONS CONCERNING CASE IMPORTANCE ......... 128 

1. Importance as a Strategic Device .......................................................................... 129 

2. The Hierarchy Hypothesis: Attaching Greater Importance to Peak Courts' 

References ................................................................................................................ 130 

3. The Divide-and-Conquer Hypothesis: Attaching Greater Importance to Lower 

Courts' References ................................................................................................... 134 

IV. DATA AND METHODOLOGY .......................................................................... 137 

1. Measuring Importance ............................................................................................ 137 

2. Data....................................................................................................................... 140 

V. ANALYSIS AND RESULTS ..................................................................................142 

VI. CONCLUSION .................................................................................................. 154 

I. INTRODUCTION

In this article, we grapple with the question of whether the Court of Justice 
of the European Union (CJEU or the Court) treats cases submitted by courts 
at different levels of the domestic hierarchy in a systematically different way. 
In order to answer our question, we propose two opposing hypotheses drawn 
from  the  literature  on  the  role  of  national  courts  in  the  preliminary  ruling 
procedure.  The  hierarchy  hypothesis  suggests  that  the  CJEU  values 
references  from  national  peak  courts  the  most  as  a  consequence  of  their 
standing  at  the  apex  of  national  judiciaries.  The  divide-and-conquer 
hypothesis, on the other hand, proposes that the Court prefers to bolster its 
relationship  with  lower  courts  in  an  effort  to  circumvent  the  gatekeeping 
power of national peak courts. 

To test these two opposing hypotheses, we constructed a dataset of 10,609 
preliminary references that encompasses all cases received and decided by the 
CJEU  between  1961  and  2018.1  We  classify  the  importance  of  references 
based  on  whether  the  Court  rendered  a  decision  by  means  of  the  Grand 
Chamber, in a five or three judge chamber with an Advocate General opinion, 
in a five or three judge chamber without an Advocate General opinion, or by 

1 

1961 marks the year of the first preliminary question ever submitted to the CJEU 
(Gerechtshof 's-Gravenhage Case 13/61 Bosch [1962]). 2018 is the last full year before 
writing the present article. 

 
 
 
 
 
 
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Which Courts Matter Most? 

123 

a  reasoned  order.  This  measure  leverages  the  discretionary  power  of  the 
Court in deciding how to respond to a reference. The CJEU has over time 
developed several instruments which enable it to prioritize cases it considers 
more  important  than  others.  For  example,  the  Court  can  rule  on  a 
preliminary reference with an order rather than a judgment if it determines 
that  the  question  is  manifestly  inadmissible  or  already  answered  in  its 
previous case law. The Court can also decide that a written Advocate General 
opinion is not necessary. Most importantly, it can assign a case to the Grand 
Chamber which is typically reserved for cases of the highest importance. This 
stratification  of  preliminary  references  constitutes  a  major  innovation 
compared  to  existing  quantitative  studies  on  Article  267  TFEU  which  are 
liable to create oversimplified images of referral activity. 

This article proceeds as follows. Section II surveys key literature on national 
courts' incentives for participating in the preliminary ruling procedure and 
situates the mechanism in the broader judicial landscape in Europe. Section 
III  introduces  theoretical  reasons  behind  our  two  hypotheses  on  why  the 
CJEU may treat cases stemming from different levels of the national judicial 
hierarchy  distinctly.  Section  IV  describes  our  measurement  strategy  and 
introduces  the  dataset.  Section  V  presents  the  main  analysis  and  results 
before concluding in Section VI. 

II. NATIONAL COURTS' PARTICIPATION IN THE REFERRAL SYSTEM 

Over the course of just a few decades, the CJEU managed to constitutionalize 
what  was  initially  an  international  treaty  and  contribute  to  creating  a 
veritable European legal order.2 Commentators attest to the importance of 
the  preliminary  ruling  procedure  in  that  process  when  they  refer  to  it  as  a 

2 

Eric  Stein,  'Lawyers,  Judges,  and  the  Making  of  a  Transnational  Constitution' 
(1981) 75 The American Journal of International Law 1; Joseph HH Weiler, 'The 
Transformation of Europe' (1991) 100 The Yale Law Journal 2403. 

 
 
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European Journal of Legal Studies  

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'proven  and  effective  motor  of  integration',3 
influence',4 and 'the jewel in the crown of the CJEU's jurisprudence'.5  

'critical  to  the  CJEU's 

The  quantitative  evolution  of  the  CJEU's  caseload  confirms  the  learned 
intuitions of these scholars. The graph in Figure 1 depicts the CJEU's case law 
for the period 1953-2018 by splitting it up according to the type of procedure. 
Referrals  evidently  make  up  the  largest  share  of  the  Court's  caseload.6  Its 
share  has,  moreover,  increased  throughout  the  years,  leaving  infringement 
procedures and annulments lagging behind, in particular in the last decade. 
The attention devoted to the preliminary ruling procedure by legal scholars 
and political scientists therefore has substantial empirical justification.7 

3 

4 

5 

Catherine  Barnard  and  Eleanor  Sharpston,  'The  Changing  Face  of  Article  177 
References'(1997) 34 Common Market Law Review 1113, 1169. 
Clifford  J  Carrubba  and  Lacey  Murrah,  'Legal  Integration  and  Use  of  the 
Preliminary  Ruling  Process  in  the  European  Union'  (2005)  59  International 
Organization 399, 399. 
Paul Craig, EU Administrative Law (3rd ed, University Press 2018) 828. 

6   The  data  have  been  collected  in  the  context  of  the  EUTHORITY  project,  see 

https://euthority.eu/data. 

7  Nonetheless, we should not lose sight of the fact that national courts across the EU 
deal  with  millions  of  cases  each  year.  In  only  a  few  of  these  cases  do  courts  feel 
inclined to ask advice from Luxembourg. In that respect, preliminary references 
are an extremely rare event. 

 
 
 
 
 
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Which Courts Matter Most? 

125 

Figure 1: Number of cases received by the CJEU according to the type of procedure, 1953-2018 

When the CJEU ruled on its first preliminary reference in 1963, however, few 
expected  that  the  mechanism  would  become  indispensable  for  the  legal, 
political and economic integration of Europe.8 After all, the mechanism has 
an in-built dependence on the participation of other actors, notably private 
litigants and national courts.9 The necessary reliance on other actors has both 
advantages  and  disadvantages 
for  the  CJEU.  The  advantages  of 
jurisprudential  development  through  preliminary  rulings  for  the  Court  are 
obvious. By shifting focus from participation of Member States' governments 
to  subnational  actors  such  as  litigants,  lawyers  and  courts,  the  Court 
decreases its reliance on the capricious willingness of Member States to use 
and  implement  EU  law.10  The  immediate  interests  of  litigants  and  lawyers 

8  Morten Rasmussen, 'Revolutionizing European Law: A History of the Van Gend 
en Loos Judgment' (2014) 12 International Journal of Constitutional Law 136, 146. 
Stein (n 2). 

9 

10  Anne-Marie  Burley  and  Walter  Mattli,  'Europe  before  the  Court:  A  Political 

Theory of Legal Integration' (1993) 47 International Organization 41, 58. 

 
 
 
 
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European Journal of Legal Studies  

{Vol. 12 No. 1 

who  operate  across  borders  align  more  strongly  with  those  of  the  Court.11 
Interaction with these actors has strategic value for the CJEU. 

Even  though  cooperation  is  far  from  an  unequivocal  success  story,12 
participation by national courts has formed a crucial element in the reference 
procedure and, as a result, has helped cement the EU legal order. Weiler even 
considers  national  courts  the  'most  consequential  interlocutors'  of  the 
CJEU.13 Their participation, however, is less self-evident than the willingness 
of litigators to engage with the Court. Accepting doctrines such as supremacy 
and  judicial  review  bring  about  structural  changes  to  a  national  judicial 
organization  that  have,  over  time,  become  deeply  entrenched  in  their 
respective legal systems.14 To take the example of the UK, the introduction 
of  EU  law  fundamentally  altered  the  judicial  hierarchy  and  its  relationship 
with other branches of government.15  

Early  work  in  the  1990s  that  tried  to  make  sense  of  national  court 
participation  emphasized  the  role  of  lower  courts  in  the  preliminary 
reference  procedure.  According  to  Weiler  and  Alter,  it  was  the  desire  of 
lower  court  judges  to  empower  themselves  vis-à-vis  other  branches  of  the 
government16 or vis-à-vis higher courts in the national judicial hierarchy17 that 

11  Alec Stone Sweet and Thomas L Brunell, 'The European Court and the National 
Courts: A Statistical Analysis of Preliminary References, 1961–95'(1998) 5 Journal 
of European Public Policy 66; Alec Stone Sweet, The Judicial Construction of Europe 
(Oxford  University  Press  2004);  Arthur  Dyevre  and  Nicolas  Lampach,  'The 
Origins  of  Regional  Integration:  Untangling  the  Effect  of  Trade  on  Judicial 
Cooperation'(2018) 56 International Review of Law and Economics 122. 
Lisa  J  Conant,  Justice  Contained:  Law  and  Politics  in  the  European  Union  (Cornell 
University Press 2002). 
Joseph HH Weiler, 'A Quiet Revolution: "The European Court of Justice and Its 
Interlocutors"' (1994) 26 Comparative Political Studies 510, 518. 

12 

13 

14  Alec Stone Sweet, 'The European Court of Justice and the Judicialization of EU 

Governance' (2010) 5 Living Reviews in European Governance 29. 

15  Damian  Chalmers,  'The  Positioning  of  EU  Judicial  Politics  within  the  United 

Kingdom', West European Politics 23, no. 4 (October 2000) 173. 

16  Weiler (n 13). 
17  Karen  Alter, 

'Explaining  National  Court  Acceptance  of  European  Court 
Jurisprudence:  A  Critical  Evaluation  of  Theories  of  Legal  Integration’  in  Anne 
Marie  Slaughter,  Alec  Stone  Sweet,  Joseph Weiler  (eds),  The  European  courts  and 
national courts - Doctrine and Jurisprudence (Hart Publishing 1998). 

 
 
 
 
 
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Which Courts Matter Most? 

127 

drove  the  number  of  referrals  across  the  EU.  In  doing  so,  lower  national 
courts – so the reasoning goes – contributed greatly to the legal, political and 
economic integration of Europe.  

In the same decade, Stone Sweet and Brunell took issue with the suggested 
centrality of lower courts by pointing out that over a longer period of time 
appellate  courts  referred  much  more  prominently.  In  contrast  to  lower 
courts, these judicial bodies play a different role in domestic litigation that 
involves more legal interpretation and conflicts of law. Accordingly, it should 
not come as a surprise that appellate courts are an important interlocutor of 
the  CJEU.18  Contemporary  scholarship  stresses  the  importance  of  peak 
courts as well. Research of Dyevre and co-authors indicates that lower courts 
may have submitted many references in the early years of integration but that 
peak courts became numerically more active by the turn of the century.19 As 
recent work of Pavone and Kelemen shows, peak courts started slowly but 
managed to reassert their position in their respective legal systems by taking 
the lead in the development and use of EU law.20 It is hard to pinpoint exactly 
what  share  of  non-peak  courts  use  Article  267  TFEU  because  we  miss 
longitudinal data on the number of courts in Member States. Nevertheless, it 
is safe to assume that the number of non-peak courts in a country is much 
larger  than  the  number  of  peak  courts,  which  provides  us  with  a  relevant 
intuition.  

The  comparatively  decreasing  number  of  non-peak  court  judges  in  the 
reference  practice  suggests  that,  proportionally  speaking,  judges  in  the 
highest echelons of national legal systems have become the most important 
CJEU interlocutor while non-peak courts have mostly played out their role 
in  the  preliminary  ruling  proceedings.  Such  reasoning,  however,  is  based 
solely on a quantitative analysis in which each observation of a reference is 
treated equally, creating a narrative that solely depends on the supply of cases 

18 

Stone Sweet and Brunell (n 11) 90. 

19  Arthur  Dyevre,  Monika  Glavina  and  Angelina  Atanasova,  'Who  Refers  Most? 
Institutional  Incentives  and  Judicial  Participation  in  the  Preliminary  Ruling 
System' [2019] Journal of European Public Policy 1 (published online 16 Jun 2019). 
20  Tommaso  Pavone  and  R  Daniel  Kelemen,  'The  Evolving  Judicial  Politics  of 
European  Integration:  The  European  Court  of  Justice  and  National  Courts 
Revisited' [2019] European Law Journal 1. 

 
 
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by national courts. Hence, the approach fails  to account for the possibility 
that  the  CJEU,  despite  the  growing  involvement  of  peak  courts,  treats 
references coming from non-peak courts in a qualitatively different way.21 

The bare fact that peak courts are more active in the preliminary  reference 
procedure provides little insight into the way in which the CJEU deals with 
cases  it  receives.  In  order  to  shed  light  on  that  side  of  the  equation,  we 
construct two hypotheses derived from a theoretical investigation of how the 
CJEU  treats  cases  stemming  from  either  peak  or  non-peak  courts.  The 
hierarchy hypothesis stresses that the Court attaches greater importance to 
cases  coming  from  peak  courts.  The  divide-and-conquer  hypothesis, 
inversely, lays out a rationale for why the CJEU would actually bequeath non-
peak  court  cases  with  a  treatment  that  positively  emphasizes  their 
importance.  Both  hypotheses  stand  in  contrast  to  the  null-hypothesis  that 
the  Court  does  not  treat  peak  courts  and  non-peak  courts  differently. We 
discuss the two theoretical expectations in the next section. 

III. THEORETICAL EXPECTATIONS CONCERNING CASE IMPORTANCE 

For a number of reasons, the CJEU may prefer assigning a different measure 
of importance to either peak or non-peak court references. Before we discuss 
these,  we  introduce  a  potential  strategic mechanism  that may  help explain 
the behaviour of the CJEU regardless of the hypothesis at stake. That being 
said,  we  acknowledge  that  the  two  hypotheses  presented  below  do  not 
exhaust  the  range  of  possible  explanations  of  CJEU  decision-making 
behaviour.  Potential  differences  in  treatment  may  also  depend  on  subject 
area or legal or policy pertinence of cases. Nevertheless,  we focus on those 
theoretical  explanations  which  were  most  prominently  discussed  in  the 
literature on judicial behaviour and preliminary references, namely the role of 
strategic decision-making and judicial hierarchy. 

21  By quality we refer to the element of importance of preliminary reference, not to 
the  "legal  quality"  of  the  question  submitted.  Although  such  quality  may  affect 
CJEU reception, we do not see the theoretical grounds for its potential influence. 
Also due to measurement constraints, "legal quality" for now remains beyond the 
scope of existing research on Article 267 TFEU. 

 
 
 
 
 
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Which Courts Matter Most? 

129 

1. Importance as a Strategic Device 

A  central  theoretical  assumption  in  the  empirical  literature  on  judicial 
behaviour  proposes  that  judges  choose  specific  goals  and  subsequently 
strategize with those goals in mind. Depending on the context and situation, 
judges can have widely divergent goals. Consequently, researchers modelling 
judicial  behaviour  have  to  decide  for  themselves  what  goal-oriented 
behaviour  drives  judicial  decision-making  under  specific  circumstances.22 
These may include furthering the workings of the democratic legal system by 
making sense of the incoherent system of rules created by the legislature,23 
creating good law and good policy marked by legal accuracy and legal clarity,24 
or solely creating good law.25 Most commonly, though, application of this so-
called  strategic  model  assumes  that  judges  pursue  legal  policy  goals,  which 
loosely  translates  to  decision-making  based  on  an  ideological  attitude.26 
Although  the  centrality  of  policy  preferences  has  long  dominated  the 
American  literature  on  judicial  decision-making,  this  somewhat  myopic 
emphasis has come under increasing attack in favour of including a wider set 
of potential judicial motivations.27 

22 

23 

Lee Epstein and Jack Knight, The Choices Justices Make (CQ Press 1998) 11–12. 
John  Ferejohn  and  Barry  Weingast,  'Limitation  of  Statutes:  Strategic  Statutory 
Interpretation'(1991) 80 Georgetown Law Journal 565, 571, 574. 

24  Ferejohn  and  Weingast  (n  23);  Lawrence  Baum,  The  Puzzle  of  Judicial  Behavior 

25 

(University of Michigan Press 1997) 21, 25. 
Pablo  T  Spiller  and  Emerson  H  Tiller,  'Invitations  to  Override:  Congressional 
Reversals of Supreme Court Decisions' (1996) 16 International Review of Law and 
Economics 503. 

26  Lee  Epstein  and  Jack  Knight,  The  Choices  Justices  Make  (CQ  Press  1998)  10. 
Important  works  include  Jeffrey  Allan  Segal  and  Harold  J  Spaeth,  The  Supreme 
Court and the Attitudinal  Model Revisited (Cambridge University Press 2002); Lee 
Epstein, William M Landes and Richard A Posner, The Behavior of Federal Judges. 
A Theoretical and Empirical Study of Rational Choice (Harvard University Press 2013). 
27  Charles M Cameron and Lewis A Kornhauser, 'Rational Choice Attitudinalism?', 
European  Journal  of  Law  and  Economics  (September  7  2015)  1–20.  Even 
proponents  of  the  ideological  analysis  of  judicial  behaviour  plead  guilty  to  this 
charge. As Epstein and Knight apologetically explain: 'theoretically, yes, strategic 
and,  more  generally,  rational  choice  accounts  of 
judicial  behavior  can 
accommodate different or even multiple motivations. But in practice we adopted 
the conventional (political science) party line and argued that maximizing policy is 

 
 
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European Journal of Legal Studies  

{Vol. 12 No. 1 

is  an 

Following  the  development  of  this  empirical  literature,  we  entertain  the 
possibility that CJEU judges use court formation and procedural instruments 
as  strategic  devices,  though  not  ones  informed  by  ideological  preferences. 
Court  formation 
inherent  element  of  a  resource-constrained 
environment  like  that  of  the  CJEU,  which  necessitates  treating  references 
differently. The Court may partly use its discretion for strategic reasons to 
bolster its relationship with either national peak courts or non-peak courts. 
It can do so by rewarding a reference with a review by a court formation that 
signals the importance of the legal issue at stake and conveys a sign of respect. 
Conversely, the Court can signal its lack of interest by deciding a case  by a 
reasoned order. The CJEU may want to act in this fashion to induce specific 
interlocutors  into  participation  (and  vice  versa)  in  a  project  of  the  Court's 
choosing. The mechanism itself is merely a strategic way of attaining a goal 
and does not in and of itself specify the substance of that project. As we will 
see, we can propose radically different answers to that substantive question 
under each hypothesis. 

2.  The  Hierarchy  Hypothesis:  Attaching  Greater  Importance  to  Peak  Courts' 
References 

Our  first  hypothesis  expects  that  peak  court  references  are  more  likely  to 
receive  case  review  associated  with  a  higher  importance  score.  We  have 
several theoretical arguments to support this hypothesis, all of which revolve 
around the position of these courts at the top of the judicial hierarchy. 

First,  the  CJEU  may  have  strategic  reasons  to  bolster  its  relationship  with 
national peak courts because of their position atop the judicial hierarchy. As 
highest courts, these courts generally enjoy the most legal authority within 
their  respective  national  systems.  By  attaching 
jurisprudential 
developments  to  cases  from  courts  that  hold  most  legal  sway  over  other, 

its 

of  paramount,  even  exclusive,  concern.  We  were  wrong.  Data  and  research 
developed  by  scholars  (mostly  from  other  disciplines)  have  demonstrated  that 
although the policy goal is crucial to understanding judicial behavior, it is not the 
only motivation; it may not even be dominant for many judges. The evidence is now 
so  strong  that  it  poses  a  serious  challenge  to  the  extremely  (un)realist(ic) 
conception  of  judicial  behavior  that  has  dominated  the  study  of  law  and  legal 
institutions for generations'. Lee Epstein and Jack Knight, 'Reconsidering Judicial 
Preferences', Annual Review of Political Science 16, no. 1 (May 10, 2013) 12–13. 

 
 
 
 
 
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Which Courts Matter Most? 

131 

lower national courts, the CJEU can increase the visibility of its own case law, 
lend  greater  authority  to  it  and  positively  nudge  the  likelihood  of  its 
acceptance. With this goal in mind, the Court can reinforce its partnership 
with peak courts by rewarding their references with case handling expressive 
of high importance.  

Second, possibly higher importance score for peak court references may also 
in  part  be  affected  by  case  difficulty.  These  courts  generally  deal  with  the 
most indeterminate cases. If such cases involve the application of EU law, the 
reasoning goes, then the ambiguity aspect pertaining to EU law logically also 
needs review by the highest type of EU court. Elements of the team model of 
judicial  behaviour  and  the  case  selection  hypothesis  underwrite  this 
intuition. 

The team model presupposes that all judges in the national judicial hierarchy 
share  the  same  objective,  which  is  maximizing  the  number  of  "correct" 
judicial outcomes.28 In achieving this objective, judicial hierarchy has several 
advantages over a flat system of laterally related courts. First, it allows for the 
allocation  of  workload  and  resources  across  different  tiers  of  courts  to 
achieve an efficient division of labour.29 Second, hierarchy creates an impetus 
for specialisation. For instance, trial courts have at their disposal little time 
and  resources  to  spend  on  individual  cases.  Hence,  their  range  of  duties 
involve mostly fact-finding and swift dispute resolution.30 Higher courts, by 
contrast,  enjoy  a  lighter  caseload  while  having  access  to  more  resources.  If 
peak courts have more resources and fewer cases than non-peak courts, then 
they  face  fewer  constrains  to  participate  in  the  preliminary  reference 

28  Charles  M  Cameron  and  Lewis  A  Kornhauser,  'Appeals  Mechanism,  Litigant 
Selection,  and  the  Structure  of  Judicial  Hierarchies'  in  James  R  Rogers,  Roy  B 
Flemming  and  Jon  R  Bond  (eds),  Institutional  Games  and  the  U.S.  Supreme  Court 
(University of Virginia Press 2006) 178. 

29  Lewis A Kornhauser, 'Adjudication by a Resource-Constrained Team: Hierarchy 
and Precedent  in  a  Judicial  System  Symposium  on  Positive  Political Theory  and 
Law' (1995-1994) 68 Southern California Law Review 1605–30. 

30  Francisco Ramos Romeu, 'Law and Politics in the Application of EC Law: Spanish 
Courts and the CJEU 1986-2000' (2006) Common Market Law Review 43 395–421. 

 
 
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European Journal of Legal Studies  

{Vol. 12 No. 1 

procedure.31 Hence, they shoul be more likely to refer cases the CJEU deems 
important. 

The increase in both time and resources also create fertile ground for a focus 
on law-finding and law-creation.32 The preoccupation with legal development 
by peak courts generates a system of precedence and doctrinal categories that 
help  guide  lower  courts  in  conflict  resolution.33  Likewise,  preliminary 
questions  only  address  points  of  law,  which  relates  more  closely  to  the 
creative  aspect  of  judging  present  in  peak  court  decision-making.34  It 
therefore  stands  to  reason  that  peak  courts  are  more  likely  to  handle  law-
making  cases  with  an  EU  dimension  that  require  a  CJEU  court  formation 
expressive of exactly this legal aspect. 

That  peak  courts  focus  strongly  on  the  creative  aspect  of  decision-making 
may not only depend on resource management but also on the type of cases 
that most likely make its way to their dockets. The Priest-Klein effect is a 
selection  hypothesis  that  suggest  that  the  decision  to  litigate  depends  on 
rational  expectations  of  parties  about  the  likely  outcome  of  a  case.  Such 
prediction is possible because legal rules are generally clear.35 Especially cases 

31  Dyevre, Glavina and Atanasova (n 19) 9. 
32 

Lewis  A  Kornhauser,  'Judicial  Organization  &  Administration'  in  Boudewijn 
Bouckaert  and  Gerrit  de  Geest  (eds)  Encyclopedia  of  Law  and  Economics  (Edward 
Elgar, 2000) 27–43; Romeu (n 30). 

33  Kornhauser,  'Adjudication  by  a  Resource-Constrained  Team'  (n  29);  Francisco 
Ramos  Romeu,  'Judicial  Cooperation  in  the  European  Courts:  Testing  Three 
Models  of  Judicial  Behavior'  (2002)  2  Global  Jurist  Frontiers  1;  Romeu  (n  30); 
Arthur Dyevre, Angelina Atanasova and Monika Glavina (n 19). 

34  Dyevre, Glavina and Atanasova (n 19) 8. 
35  This insight has a long pedigree in legal scholarship. Even American legal realists 
were acutely aware of it. As Max Radin explained, '"the law" as a generalization of 
legal  judgments  is  always  incomplete  since  it  is  always  concerned  with  a  specific 
question not yet decided, as well as thousands already decided. The prognosis of 
that decision involves an estimate in advance of the factors that will determine the 
future judgment. In spite of the possible variety and number of these factors, the 
advance estimate is so highly probable in a number of cases that the statement of 
the law can be made with a fair degree of certainty and precision, and no decision 
will  be required  to test  its  accuracy  since  most men  will  regard the  decision  as  a 
foregone conclusion. Decisions will consequently be called for chiefly in what may 
be called marginal cases, in which prognosis is difficult and uncertain. It is this fact 

 
 
 
 
 
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Which Courts Matter Most? 

133 

with  a  win-rate  of  50  per  cent  for  both  plaintiff  and  appellant  make  it 
attractive to try one's luck in court. Divergent prior estimates merely lead to 
settlement outside of court, or so the hypothesis suggests. The clarity of the 
legal solution merely dissuades litigants from going to court.36  

In  many  cases,  first  instance  court  judges  can  reach  a  decision  with  a  fair 
degree of certainty and precision. Plenty of litigants accept these decisions as 
final.  Unsuccessful  litigants  who  appeal  court  rulings  generally  have  a  clear 
understanding  of  the  facts  of  the  case  and  wield  the  ability  to  spot  legal 
inaccuracies in decisions of trial judges.37 These are likely 'marginal cases, in 
which prognosis is difficult and uncertain'.38 Such difficulty and uncertainty 
is equally present when the legal rules at stake are indeterminate. Marginal 
cases  refer  more  colloquially  to  'hard  cases'.  These  are  the  subset  of  legal 
conflicts  that  manage  to  capture  the  imagination  and  attention  of  legal 
scholarship.39  Appellate  cases  are,  however,  exceedingly  rare.40  Therefore, 
the  number  of  cases  that  make  their  way  through  the  judicial  hierarchy 
declines  at  each  litigation  stage  while  the  share  of  indeterminate  cases 
increases.41  Hence,  the  dockets  of  peak  courts  tend  to  be  overrepresented 
with  difficult  and  indeterminate  cases.  These  require  judgement  under 
incomplete  legal  guidance  and  necessarily  contain  a  creative  element, 
whether the legal norms at stake are national or European.  

that makes the entire body of legal judgments seem less stable than it really is'. Max 
Radin,  ‘In  Defense  of  an  Unsystematic  Science  of  Law’  (1942)  51  The  Yale  Law 
Journal 1271. 

36  Richard L Revesz, 'A Defense of Empirical Legal Scholarship'(2002) 69 University 

37 

of Chicago Law Review 169, 172–173. 
Jonathan  P  Kastellec,  'The  Judicial  Hierarchy:  A  Review  Essay'  [2016]  Oxford 
Research Encyclopedia of Politics 6. 

38  Radin (n 35) 1271. 
39  Max Radin, 'Scientific Method and the Law' (1931) 19 California Law Review 164, 

170. 

40  Frederick Schauer, 'Judging in a Corner of the Law' (1987) 61 Southern California 

Law Review 1717. 

41  Arthur Dyevre, 'Outline of a Legal Realistic Approach to Legal Integration' in Ulla 
B  Neergaard  and  Ruth  Nielsen  (eds),  European  legal  method:  towards  a  new  legal 
realism (DJØF Publishing 2013) 59. 

 
 
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As  the  team  model  suggests,  national  peak  courts  have  more  time  and 
resources  to  draft  a  preliminary question  than non-peak  courts. Moreover, 
they are more often faced with cases that address difficult and indeterminate 
legal  norms,  which  the  case  selection  hypothesis  merely  confirms. 
Statistically  speaking,  such  conflicts  are  more  likely  to  involve  questions 
pertinent  to  the  interpretation  of  EU  law  as  well.  Indeed,  the  preliminary 
ruling procedure itself inherently focuses on those situations in which the law 
is unclear and requires uniform interpretation across the legal systems of the 
Member States by the CJEU. Such questions most likely crop up in cases that 
make their way to peak courts, which, in comparison to lower courts, already 
have more time and resources available to think carefully about law making.42   

3.  The  Divide-and-Conquer  Hypothesis:  Attaching  Greater  Importance  to  Lower 
Courts' References 

National  courts  have  been  characterized  as  'the  motors  of  European 
integration'.43  As  Alter  explains,  these  courts  have  many  incentives  to 
participate in the preliminary ruling procedure. Her inter-court competition 
hypothesis likens courts to bureaucratic organizations that pursue their own 
interests. Legal integration, however, incentivizes peak courts and non-peak 
courts  differently.  For  example,  the  EU  provides  lower  courts  with  an 
additional  argumentative  repository  that  allows  them  to  circumvent  peak 
court jurisprudence. By incorporating an EU dimension into their decision-
making, these courts can shield themselves from possible legal criticism when 
they disregard national jurisprudence. However, the reference to EU law is 
not necessarily a constant. Lower courts may just as easily alternate it with 
acquiescence  in  national  peak  court  case  law  if  the  outcome  aligns  more 
closely with their preferences.44 

This side of Alter's theory mostly focuses on the choice architecture of lower 
court  decision-making  and  cannot  explain  why  the  CJEU  would  like  to 
collaborate  with  them.  Weiler  called  EU  integration  a  simple  narrative  of 
judicial  empowerment  that  gave  national  courts  sufficient  incentives  to 
cooperate  with  the  CJEU  in a  mutually  advantageous  European  endeavour 

42  Dyevre, Glavina and Atanasova (n 19). 
43  Alter (n 17); Weiler (n 2). 
44  Alter (n 17) 241–246. 

 
 
 
 
 
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Which Courts Matter Most? 

135 

to  coin 

scientists 

the  phrase 

led  political 

that  has 
'reciprocal 
empowerment'.45 The preliminary reference procedure gives national courts 
and especially those in the lowest echelons the power of judicial review. As a 
potentially intrusive form of judicial decision-making, this particular power 
was, for a long time, the sole prerogative of a handful of peak courts. EU law 
and its supremacy vis-à-vis national legislation thus distributed the possibility 
of judicial policy-making throughout the judicial hierarchy. The increase in 
power proved difficult to resist. On an institutional level, the power of the 
judicial  branch  vis-à-vis  other  branches  of  government  changed  as  well, 
adding to the overall empowerment.46  

The advantages for domestic non-peak courts seem clear. The collaborative 
element present in the reference mechanism provides national courts as well 
as  the  CJEU  valuable  shelter  from  potential  political  backlash.  Non-peak 
courts can refer to the existence of a legal duty to refer questions relevant to 
the  uniform  interpretation  and  validity  of  EU  law  to  the  Court.  Judges  in 
Luxemburg  for  their  part  never  directly  resolve  the  case  itself  but  merely 
render  a  ruling  on  the  interpretation  of  the  relevant  European  law.  Peak 
courts  are  less  likely  to  participate  enthusiastically  in  this  dynamic.  The 
advent  of  EU  law  namely  poses  a  threat  to  their  hierarchical  position  as 
ultimate interpreters of legal norms in the national system. In order for the 
CJEU to achieve its goal of increasing its power and the acceptance of its case 
law, it may thus favour circumventing the control of peak courts and remain 
working  closely  with  lower  courts.47  The  aligned  interests  between  both 
actors may explain why the CJEU prefers collaborating with domestic non-
peak courts. 

Gaining the power of judicial review may seem sufficiently incentivizing for 
lower  courts  to  participate  in  the  preliminary  ruling  procedure  without 
worrying  too  much  about  the  importance  the  Court  assigns  to  a  case. 
However,  the  1990s  saw  the  increasing  de  jure  acceptance  of  European 
integration.48 As Alter herself expected, lower court reference activity may 

45  Burley and Mattli (n 10) 64. 
46  Weiler (n 2) 2426. 
47  Alter (n 17) 241–246.  
48  David  J  Gerber,  Law  and  Competition  in  Twentieth  Century  Europe:  Protecting 

Prometheus (Oxford University Press 1998) 388. 

 
 
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eventually  lead  peak  courts  to  accept  the  supremacy  of  EU  law  and  the 
corresponding  guidance  of  the  CJEU.  As  more  and  more  non-peak  courts 
accept  CJEU  supremacy  and  as  the  number  of  legal  subfields  that  EU  law 
touches accrues, continued obstruction against the expansion of EU law by 
peak  courts  becomes  increasingly  futile,  she  predicts.49  As  the  work  of 
Pavone  and  Kelemen  shows,  this  theoretical  possibility  seems  to  pass 
empirical  muster.50  The  seemingly  inevitable  acceptance  of  supremacy  by 
peak courts has a potential trade-off, however. In accepting the importance 
of EU law, peak courts have the additional incentive to minimize the number 
of references by lower courts.51 If these courts manage to become the main 
interlocutor of the CJEU in the preliminary reference procedure, then they 
effectively  gain  a  monopoly  on  litigant  access  to  the  Court.  As  the  main 
gatekeepers of EU law litigation, peak courts de facto increase their power vis-
à-vis the judges in Luxembourg. 

There  are  additional  reasons  for  the  CJEU  to  resist  peak  courts  from 
monopolizing  participation  in  the  preliminary  ruling  procedure.  First,  the 
existence of  a  monopoly  could be a reason for EU sceptical Member  State 
governments to pack peak courts with judges not so keen on EU integration. 
Second,  many  litigants  never  make  it  to  the  top  of  the  judicial  hierarchy, 
whether this is due to financial constraints or lack of procedural stamina.52 To 
prevent this from happening, the CJEU may want to keep non-peak courts in 
the  reference  game  by  means  of  positive  reinforcement  through  a  reward 
system based on case disposition. It signals to lower courts that despite the 
centrality  of  peak  courts  they  too  are  of  fundamental  importance  for 
European legal integration. 

49  Alter (n 17) 343. 
50  Pavone and Kelemen (n 20). 
51 

Pavone has highlighted the constraining effect of strong hierarchy on EU law use 
by  lower  courts  in  a  case  study  of  the  French  administrative  law  system.  See 
Tomasso Pavone, 'The Ghostwriters: Lawyers and the Politics Behind the Judicial 
Construction of Europe' (Princeton University Forthcoming). 
Pavone  and  Kelemen  (n  20)  21;  Lisa  Conant,  'Europeanization  and  the  Courts: 
Variable  Patterns  of  Adaptation  among  National  Judiciaries'  in  Maria  Green 
(eds),  Transforming  Europe: 
Cowles,  James  Caporaso  and  Thomas  Risse 
Europeanization and Domestic Change (Cornell University Press 2001) 109. 

52 

 
 
 
 
 
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137 

IV. DATA AND METHODOLOGY 

For a variety of theoretical reasons, we now have two different expectations 
regarding the way in which the CJEU attributes importance to preliminary 
references coming from peak courts or non-peak courts. We therefore turn 
our attention to how we measure case law importance and which data we use 
for this purpose. 

1. Measuring Importance 

Attributing  a  "true"  measure  of  importance  to  preliminary  references  is 
difficult. We therefore simplify matters and follow the observable behaviour 
of the CJEU itself. Court formation and case handling options are relevant in 
this  respect.  Five  and  three  judge  chambers  are  the  standard  by  which  the 
CJEU  operates.53  The  Court  deviates  from  this  standard  if  the  difficulty, 
importance  or  particular  circumstances  require  it  to  assign  the  case  to  the 
Grand  Chamber  that  usually  consists  of  fifteen  or  thirteen  judges.54 
Regardless  of  the  material  circumstances,  Member  States  may  make  a 
request to the similar effect. The Court may decide to refer a case it deems of 
exceptional  importance  to  the  Full  Court,  which  consists  of  at  least  17 
judges.55 Additionally, the Statute of the Court of Justice state that the CJEU 
can  decide  to  conclude  a  case  without  a  submission  from  the  Advocate 
General,  'where it considers that  the case  raises no new  point of law'.56 All 
these  deviations  from  the  standard  indicate  that  these  are  relatively  more 
important cases than three and five judge-chamber cases from the point of 
view of the Court. 

The Rules of Procedure of the Court are rather vague as far as the conditions 
for  the  assignment  of  cases  to  the  Grand  Chamber  are  concerned. 
Nevertheless, most authors seem to agree that case assignment relates to case 
importance. To begin with, a division of labour between CJEU judges makes 

53 

54 

55 

56 

Statute of the Court of Justice of the European Union (1-5-2019) 1, Art 16(1). 
Ibid Art 16(2). 
Ibid Art 16(5), Art 17(4).  
Ibid Art 20(5). 

 
 
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it exceedingly efficient to dispose of the day-to-day business of the Court.57 
Considering that the Court consists of 28 judges, one from every EU Member 
State, it stands to reason that small chambers adjudicate the bulk of cases and 
leave  only  the  most  contentious  issues  to  the  Grand  Chamber.  Although 
Bobek expresses his scepticism about the degree to which court formation 
indicates importance, he does suggest that the Grand Chamber consists of 
'more senior members of the Court'.58 In a similar vein, Aleksander Kornezov 
interprets  the  involvement  of  the  Grand  Chamber  as  a  measure  of  legal 
salience  since  it  decides  the  more  difficult  and  important  cases.59  This 
sentiment is more widely shared as an inclination that cases lacking simple 
resolve  rarely  if  ever  end  up  in  smaller  chambers.60  In  the  same  vein,  both 
Kornezov61 and Galetta62 consider a request for an opinion of an Advocate 
General as a proxy for case importance. Signals to the contrary are possible as 
well.  A  refusal  by  the  Court  to  answer  a  question  and,  instead,  produce  a 
reasoned  order  indicates  a  lack  of  importance.  Such  cases  are  either 
manifestly inadmissible, fall outside the scope of EU law or their resolution 
can be readily deduced from the existing body of case law.63 As such, scholars 

57  Michal  Bobek,  'Learning  to  Talk:  Preliminary  Rulings,  the  Courts  of  the  New 
Member States and the Court of Justice' (2008) 45 Common Market Law Review 
1611, 1637. 

58  Michal Bobek, 'On the Application of European Law in (Not Only) the Courts of 
the New Member States: "Don’t Do as I Say"?' (Social Science Research Network 
2008) SSRN Scholarly Paper ID 1157841 20. 

59  Alexander Kornezov, 'When David Teaches EU Law to Goliath: A Generational 
Upheaval in the Making' in Michal Bobek (ed),  Central European Judges Under the 
European  Influence:  The  Transformative  Power  of  the  EU  Revisited  (Bloomsbury 
Publishing, 2015) 247–248. 

60  Krzysztof Lasinski-Sulecki and Wojclech Morawski, 'Late Publication of EC Law 
in Languages of New Member States and Its Effects: Obligations on Individuals 
Following  the  Court’s  Judgment  in  Skoma-Lux'(2008)  45  Common  Market  Law 
Review 705, 714. 
61  Kornezov (n 59) 247. 
62  Diana-Urania  Galetta,  'European  Court  of  Justice  and  preliminary  reference 
procedure  today:  national  judges,  please  behave!'  in  Ulrich  Becker  and  Jürgen 
Schwarze (eds), Verfassung und Verwaltung in Europa: Festschrift für Jürgen Schwarze 
zum 70. Geburtstag (1. Aufl, Nomos 2014). 

63  The Court of Justice of the EU, Consolidated Version of the Rules of Procedure of 

the Court of Justice (2012) Art 99. 

 
 
 
 
 
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Which Courts Matter Most? 

139 

generally consider such cases of little importance to the jurisprudence of the 
CJEU.64 

Of course, procedural choices relating to case disposition are not necessarily 
a perfect proxy. The Court may decide to send a case to a smaller chamber 
not  because  of  a  lack  of  importance  but  merely  for  reasons  of  resource 
management.65 Although possible, its influence should be fairly limited when 
analysing the entire jurisprudence of the Court. Its implication would merely 
be  that  in  a  perfect  world  a  subset  of  cases  with  a  definitive  quality  would 
always be sent to the Grand Chamber. Since resources are limited, however, 
the  cut-off  point  merely  fluctuates  from  year  to  year  but  still  provides 
relevant information. Importance is a matter of degree and its determination 
happens in relations to other cases, not to an absolute standard that dictates 
forum choice. The advantage of adopting the case disposition choice by the 
Court  is  that  it  duplicates  this  relative  order  of  importance.  Regardless  of 
possible  fluctuations  throughout  the  years,  we  may  safely  assume  that  the 
average  case  decided  by  the  Grand  Chamber  is  of  relatively  higher 
importance than the garden-variety case handled by a three-judge chamber.  

We  understand  procedural  decisions  of  the  CJEU  about  case  handling  as 
indicative of how much the Court values the reference in legal terms. We thus 
explicitly measure case importance from the perspective of the CJEU. Although 
the  importance  attached  to  a  case  by  the  referring  national  court  might 
correlate  with  our  indicator,  we  restrict  ourselves  to  measuring  case 
importance as a function of CJEU decisions. Based on these assumptions, we 
develop a new ordinal measure for the importance of a preliminary reference 
consisting of four categories. In order of importance, we attribute different 
scores to decisions rendered by 1) the Grand Chamber; 2) three or five judge 
chambers  that  include  an  Advocate  General  opinion;  3)  three  or  five  judge 
chambers; and 4) reasoned orders. The Grand Chamber traditionally rules on 
the most important and difficult questions. Because Full Court decisions are 
extremely  rare,  we  merge  them  with  Grand  Chamber  cases.  Advocate 
General  opinions  are  mandatory  in  the  former  category  of  cases.  In  other 

64  Michal Bobek, 'Talking Now? Preliminary Rulings in and from the New Member 
States' (2014) 21 Maastricht Journal of European and Comparative Law 782, 786; 
Kornezov (n 59) 245–246; Galetta (n 62) 3.  

65  Bobek (n 64) 786. 

 
 
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court  formations  they  merely  give  their  opinion  if  the  case  raises  new 
questions  of  law.  We  therefore  use  the  Advocate  General  opinion  as  a 
criterion to distinguish between the perceived importance of cases handled 
by smaller chambers. 

Finally, we entertain the possibility that importance could also be measured 
in another manner. It is intuitively possible that the CJEU signals importance 
by resolving cases from some courts faster than from others. In relation to 
our main hypothesis this would mean that cases referred by peak courts are 
resolved  quicker  than  cases  coming  from  non-peak  courts.  Nonetheless, 
because the thrust of existing scholarship emphasizes case disposition rather 
than celerity as a signal of case importance, our interest in the latter is more 
exploratory. 

2. Data 

To test the two hypotheses discussed in the previous sections, we created a 
preliminary  ruling  dataset  that  includes  judgments,  orders  and  Advocate 
General opinions delivered between 1963 up to and including 2018. For each 
of the 10 609 observations in the dataset we code referral year, case duration, 
referring  court,  country  of  referring  court,  type  of  decision  (judgment  or 
order),  joined  case  or  not,  Advocate  General  involvement  and  Grand 
Chamber involvement. Table 1 summarizes the variables in our dataset. 

Variable 

Type 

Explanation 

Year of submission 

Continuous 

Case duration 

Continuous 

Referring court 

Nominal 

Referring peak court 

Binary 

Specifies  the  year  within  the  range 
1961-2018 

Specifies  the  number  of  days  from 
reference  submission 
to  CJEU 
ruling 

Specifies  the  name  of  the  referring 
court 

Specifies  whether  the  referring 
court is a peak or non-peak court 

 
 
 
 
 
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Which Courts Matter Most? 

141 

Country of origin 

Nominal 

Type of CJEU decision 

Binary 

Joined case 

Binary 

Advocate 
opinion 

General 

Binary 

Grand Chamber 

Binary 

Specifies  the  Member  State  of  the 
referring court 

Specifies  whether  the  reference 
ended in a judgment or an order 

Specifies  whether  the  case  was 
joined or not 

Specifies  whether  the  Advocate 
General wrote an opinion or not 

Specifies  whether 
Chamber decided the case or not 

the  Grand 

Table 1: Summary of Main Variables in the Dataset 

In some instances, the coding of "peak court" raises questions. If a court of 
appeal, such as the Court of Appeal for England and Wales, occupies a very 
important place in the judicial hierarchy and its decisions are rarely appealed 
further,  should  it  really  be  coded  as  "non-peak"? We  follow  a  conservative 
coding scheme according to which only courts whose decisions can virtually 
never be appealed are coded as "peak" courts. Only courts standing truly at 
the top of a domestic judicial hierarchy are therefore coded as peak courts 
(thus  only  the  Supreme  Court  in  the  UK).  Other  coding  schemes  are 
thinkable,  but  all  would  at  some  point  hit  the  barrier  of  imperfect 
commensurability of different legal systems in Europe. A court of appeal in 
one country might in practice have a very different role than its counterpart 
in name in another. Ultimately, the proof of whether different delineations 
matter for our analysis are in the empirical pudding. Because our approach to 
peak  courts  is  if  anything  under-inclusive,  the  results  below  can  be 
interpreted as the minimum effect for the hypothesized relationship.66 

66  We have tried coding more courts – such as the Court of Appeal (EWCA) and the 
High  Court  of  Justice  (EWHC)  –  as  peak  courts  and  our  results  were  not 
significantly affected. 

 
 
 
 
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V. ANALYSIS AND RESULTS 

We begin by presenting an overview of referral trends in the EU, conditional 
on  our  variables  of  interest.  Figure  2  shows  the  proportion  of  peak  court 
references in the total number of questions submitted in each Member State. 
Overall, there is considerable variation between countries, which may reflect 
differences  in  the  hierarchization  of  Member  States'  judiciaries.  The  stark 
differences between peak and non-peak court reference activity in the UK 
exemplifies  this  aspect  of  the  preliminary  ruling  procedure  best.  Formally, 
only the UK Supreme Court and the Scottish Court of Session qualify as peak 
courts. These two courts are not frequent users of the referral mechanism. 
The High Court of Justice and Court of Appeal for England and Wales, on 
the  other  hand,  are  not  peak  courts  but  nevertheless  occupy  an  important 
position in the judicial hierarchy and refer many questions to Luxembourg. 
Perhaps  more  than  in  any  other  country,  these  two  courts  approximate 
closely the role of apex courts, which might go some way towards explaining 
the particularly lopsided division of total UK referrals. 

Trends  in  most  countries  evolve  over  time,  sometimes  reverting  the 
distribution of referral activity between peak and non-peak courts. In France, 
non-peak courts engaged with the CJEU first before peak courts increasingly 
asserted  themselves  as  the  primary  interlocutor  in  preliminary  ruling 
proceedings. Germany is by far the most active country in the procedure with 
a total of 2,488 cases sent to Luxembourg over a period of 60 years. Its share 
of references by peak and non-peak courts is also remarkably stable. 

 
 
 
 
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Which Courts Matter Most? 

143 

Figure 2: Proportion of peak court references by country (1 = yes, it is a peak court; 0 = no, it is not 
a peak court). Passage of time is captured clockwise in each circle. 

Figure 3  shows the total number  of  cases  submitted by  peak and  non-peak 
national  courts  to  the  CJEU  during  the  entire  history  of  European 
integration. We can observe that non-peak courts – that is first instance and 
appellate courts – have always referred more questions than peak courts.67 

67  At the time of writing we only had complete data for 2017 but a preliminary look at 
2018 data revealed that the gap in reference activity of peak and non-peak courts 
has grown. 

 
 
 
 
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Figure  3.  Overall  number  of  preliminary  references  submitted  by  (non-)peak  courts  and  those 
decided by the CJEU's Grand Chamber (1961-2017). Note the drop at the end is due to references 
submitted but not yet decided by the CJEU. 

However, the picture becomes more mixed once we introduce the element 
of Grand Chamber decision-making. Although the total number of non-peak 
court  referrals  decided  by  the  Grand  Chamber  is  higher  than  that  of  peak 
courts, Grand Chamber cases constitute a higher proportion of peak court 
questions. Peak courts' references go before the Grand Chamber on average 

 
 
 
 
 
 
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Which Courts Matter Most? 

145 

in 10 per cent of their cases, while for non-peak court this proportion is 7.8 
per cent. These findings are robust regardless of whether we separate joined 
cases or not.68 

In the next step, we expand our analysis to encompass the full measure of case 
importance as described above. Figure 4 shows the proportion of preliminary 
references according to our scale, differentiating the patterns of peak courts 
from non-peak courts. The larger share of Grand Chamber judgments among 
peak court questions seems part of a broader  trend in EU law litigation. In 
comparison to their counterparts in the lower rungs of the national judicial 
hierarchy, peak courts are less likely to receive a reasoned order. Additionally, 
they are more likely to receive Advocate General involvement.  

Our main measure of importance relies on variation in procedural disposition 
of  cases  and  as  such  increases  in  its  power  to  differentiate  with  regard  to 
importance from 2004. Prior to 2004, the Grand Chamber did not exist and 
the workload of the CJEU was relatively low. Increase in workload, however, 
forces  the  CJEU  to  economize  on  the  amount  of  attention  it  pays  to 
individual references. Especially the dramatically falling numbers of cases in 
which the Advocate General writes an opinion illustrate this effect well; as 
resources grow scarcer, the relative importance of this instrument increases. 
Nonetheless, even in earlier periods of European integration we can observe 
that  the  lower  two  levels  of  our  measure  (orders  and  no  Advocate  General 
opinion)  were  applied  proportionally  more  often  to  references  from  non-
peak courts. 

68 

In  Figure  3,  each  case  is  counted  individually  regardless  of  whether  it  was  later 
joined in a judgment or not. The ratio of peak to non-peak and Grand Chamber to 
other does not change even if we discount the effect of joined cases. 

 
 
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{Vol. 12 No. 1 

Figure 4: Proportion of preliminary references according to the importance attached to them by 
the  CJEU.  1  =  cases  decided  by  an  order;  2  =  Chamber  judgments  without  AG  opinion;  3  = 
Chamber judgments with AG opinion; 4 = Grand Chamber judgments (includes AG opinion). 
The proportion is expressed as an interval between 0 and 1, which is the same as 0 per cent and 
100 per cent. 

Finally, having observed seemingly systematic differences between treatment 
of peak and non-peak courts,69 we are interested in knowing whether these 

69  The mean importance on the four-level scale is 2.45 for non-peak courts and 2.67 

for peak courts (with unresolved cases dropped). 

 
 
 
 
 
 
 
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Which Courts Matter Most? 

147 

can  be  considered  statistically  significant.  If  there  is  in  fact  no  significant 
difference between the two groups of courts, the results of an ordinal logit 
regression should indicate that whether a national court is a peak court has 
no significant impact on the level of importance attributed to a case by the 
CJEU. As a matter of exploration, we also test whether there is a significant 
difference  in  terms  of  case  duration,  which  would  indicate  that  the  CJEU 
gives priority treatment to peak court references. 

Dependent variable: 

Importance 

Duration 

Ordered logistic 

OLS 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

Peak court 

0.460***  0.382***  0.508***  -0.929 

7.439 

2.320 

FE Country 

FE Year 

Constant 

(0.043)  (0.046)  (0.047)  (5.721) 

(5.920) 

(5.106) 

X 

X 

✓ 

X 

✓ 

✓ 

X 

X 

✓ 

X 

✓ 

✓ 

543.278*** 628.680***  262.965 

(3.325) 

(12.392) 

(204.239) 

Observations 

10,328 

10,328  10,328  8,274 

8,274 

8,274 

AIC 

Note: 

21,754 

21,191 

20,641  114,595 

114,271 

111,559 

*p<0.1; 

**p<0.05; 

***p<0.01; 

Table 2: Ordered logit model of peak court effect on degree of CJEU importance and ordinary 
least squares regression estimating the impact of the same on length of proceedings. "FE" stands for 
fixed effects, "AIC" for Akaike Information Criterion. We include country and year fixed effects 
in order to isolate the effect of the variable of interest (peak court). Lower AIC implies better 
model fit. 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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European Journal of Legal Studies  

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The results of the ordered logit model reported in Table 2 confirm that the 
difference  between  peak  courts  and  non-peak  courts  is  statistically 
significant.  The  odds  ratio70  of  a  preliminary  reference  assuming  greater 
importance (moving up to a higher importance score on the scale of 1-4) is 
1.58  times  greater  in  the  baseline  model  when  the  referring  court  is  a  peak 
court than in other cases.71 The effect is still present when we include country 
and year fixed effects, which strengthens our confidence in the robustness of 
the results. Additionally, we do not find evidence that the CJEU would take 
less  time  to  adjudicate  references  from  peak  courts  in  comparison  to  non-
peak  courts.72  We  were  not  wedded  to  this  alternative  measurement 
instrument due to a lack of theoretical justification but include the results for 
exploratory purposes. We can conclude that the data show greater support 
for  the  hierarchy  hypothesis,  meaning  that  the  CJEU  values  peak  court 
references  on  average  more  than  those  of  non-peak  courts  and  that 
importance  is  manifested  through  a  procedural  rather  than  a  temporal 
channel.73 Given the trends we observe and the strengthening of CJEU-peak 
court cooperation,74 we speculate that the relative importance of peak courts' 
references is only going to increase in the coming years. 

72 

70  We get the odds ratio from the model output by exponentiating e(cid:2868).(cid:2872)(cid:2874)(cid:2868) = 1.58. 
71 

In other words, the two groups (peak and non-peak) are significantly different from 
each  other  in  terms  of  CJEU  importance.  Running  a  Welch  two  sample  t-test 
explicitly rejects the null hypothesis that peak and non-peak courts are treated the 
same: t = 12.271, df = 7170, p-value < 2.2e-16. 
If  the  Court was  more  expedient  to  signal  importance  to  peak courts, we  would 
expect a negative coefficient for the peak court variable, because the dependent 
variable is measured as the number of days between submission and decision (so a 
higher value means more delay). The coefficients are not statistically significant, 
however,  and  they  are  also  sensitive  to  including  country  and  year  fixed  effects 
which might indicate omitted variable bias. It would be possible to envisage a more 
precise model that would additionally control for variation in case facts and legal 
difficulty. However, no reliable indicators of these variables are available at present. 
73  These  results  corroborate  the  finding  of  Pavone  and  Kelemen,  based  on  a  more 
limited dataset, that courts higher up the judicial hierarchy are less likely to have 
their  case  answered  by  an  order,  including  declared  inadmissible  (Pavone  and 
Kelemen (n 20) 19–20. 

74  The  CJEU  section  of  the  2019  Draft  General  Budget  of  the  European  Union 
describes  the  creation  of  the  'Judicial  Network  of  the  European  Union',  which 
comprises  the  constitutional  and  supreme  courts  of  the  Member  States  and  is 

 
 
 
 
 
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Which Courts Matter Most? 

149 

As a secondary point of interest, we look at how our measure of importance 
feeds into country and court variation. Interestingly, Ireland has the largest 
share of Grand Chamber judgments among its references. As we can deduce 
from  Figure  5,  countries  that  account  for  the  biggest  chunk  of  reference 
activity like Germany, the  UK and  the  Netherlands in general also  receive 
higher importance scores than countries that send fewer references like Italy 
and Portugal. Contrary to its Eurosceptic reputation, UK courts account for 
a  large  number  of  Grand  Chamber  references  and  overall  cases  of  high 
importance.  Figure  5  also  illustrates  that  references  are  a  marginal 
phenomenon in "new" Member States. Not only do their courts refer fewer 
questions,  the  case  handling  also  indicates  that  the  CJEU  assigns  lower 
importance to these cases.  

coordinated  by  the  CJEU.  The  network  is  operational  since  January  2018  and  it 
'seeks to reinforce the cooperation between the Court and the national courts by 
means  of  a  multilingual  platform  which  will  enable  them  to  share,  in  a  perfectly 
secure environment, a range of information and documents intended to promote 
mutual knowledge of the case law of the European Union and that of the Member 
States,  and  the  deepening  of  the  dialogue  between  the  Court  of  Justice  and  the 
national courts in the context of requests for a preliminary ruling'. 

 
 
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European Journal of Legal Studies  

{Vol. 12 No. 1 

Figure 5: Country comparison in terms of CJEU case importance. Bars represent proportions of 
each country's referrals in a given year. For years with no coloured bars there were no references 
sent  from  that  country.  The  different  starting  points  therefore  also  reflect  different  accession 
moments (first references). 

Finally, we are interested in the performance of individual courts in order to 
obtain an even more granular view of CJEU attention allocation. When we 
weight  preliminary  references  by  our  measure  and  order  national  courts 
accordingly, we can isolate national courts that in aggregate contribute the 
most important cases. Figure 6 shows the results. Eight of the ten highest-
ranking  courts  are  peak  courts  and  this  court  type  also  makes  up  the  top 
three. We observe considerable disparities among the two non-peak courts 

 
 
 
 
 
 
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Which Courts Matter Most? 

151 

on this list as well. The High Court of Justice (England and Wales) is a key 
domestic judicial player by virtue of the specific constellation of the national 
legal system and it refers more cases decided by the Grand Chamber than any 
other court in the EU.75 Yet, references from the other non-peak court in our 
top ten, the German Finanzgericht Hamburg, barely ever make it before the 
most important CJEU court composition. 

Figure 6: Top ten court comparison in terms of CJEU case importance between 1961-2018. The 
national courts are ordered by weighted count, calculated as ni * importancei where importance is 
measured on the ordinal 1-4 scale. 

Bundesfinanzhof's domination is due to the sheer number of cases decided 
with  an  Advocate  General  opinion  rather  than  their  Grand  Chamber 

75  Brexit  is  therefore  liable  to  have  an  indirect  impact  on  CJEU  doctrinal 

development.  

 
 
 
 
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European Journal of Legal Studies  

{Vol. 12 No. 1 

worthiness.  Nonetheless,  it  is  somewhat  surprising  that  compared  to  its 
fellow  German  Supreme  Court  (Bundesgerichtshof),  far  fewer  of  its  cases 
were disposed of by an order. On this statistic, however, it is the Consiglio di 
Stato that fares particularly badly with 44 cases answered by a CJEU order. 
This  is  a  record  high  for  any  peak  court  in  the  EU.  On  the  contrary,  its 
German  counterpart  –  the  Bundesverwaltungsgericht  –  has  such  a  high 
proportion of Grand Chamber judgments that it ranks above the Consiglio 
di Stato in terms of importance despite referring fewer cases in total. 

We  additionally  examine  how  our  proposed  metric  compares  with  the 
prevailing method of plainly counting each preliminary reference as a single 
observation  of  equal  weight.  Table  3  shows  that  taking  into  account  the 
weight  attached  to  references  by  the  CJEU  can  alter  the  order  of  "top" 
national courts. We focus on the post-2003 period during which the CJEU 
introduced more variation in court formation, notably through introduction 
of  the  Grand  Chamber.  In  comparison  to  the  full  time-series  presented  in 
Figure 5, the Bundesfinanzhof has been less  active in the previous 15 years. 
Although the first two columns are similar, two Italian courts fall outside the 
top 10 when we account for case importance. 

Rank 

By unweighted count 

By weighted count 

By average importance 

1 

2 

3 

4 

5 

6 

Hoge 
Nederlanden [158] 

Raad 

der 

Raad 

Hoge 
Nederlanden [415] 

der 

Rechtbank  Den  Haag 
[3.17] 

Cour  de  cassation  (FR) 
[146] 

Cour  de 
(FR) [405] 

cassation 

Bundesverwaltungsgeri
cht (DE) [3.04] 

Bundesgerichtshof 
(DE) [141] 

Bundesgerichtshof 
(DE) [361] 

Bundesarbeitsgericht 
(DE) [2.97] 

Bundesfinanzhof  (DE) 
[112] 

Bundesfinanzhof 
(DE) [293] 

High Court (IE) [2.97] 

Consiglio di Stato [110] 

Consiglio  di  Stato 
[249] 

Østre  Landsret  (DK) 
[2.95] 

High  Court  of  Justice 
(EWHC) [81] 

High Court  of  Justice 
(EWHC) [229] 

Grondwettelijk  Hof 
(BE) [2.93] 

 
 
 
 
 
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Which Courts Matter Most? 

153 

7 

8 

9 

10 

Raad  van  State  (NL) 
[78] 

Raad  van  State  (NL) 
[214] 

Supreme  Court  (UK) 
[2.90] 

Tribunale 
amministrativo 
regionale di Lazio [77] 

Oberster  Gerichtshof 
[209] 

Sąd  Najwyższy 
[2.89] 

(PL) 

Oberster  Gerichtshof 
[73] 

Bundesverwaltungsge
richt (DE) [204] 

Oberster  Gerichtshof 
[2.86] 

Suprema 

Corte 
Cassazione [71] 

di 

Verwaltungsgerichtsh
of (AT) [179] 

Court 
(EWCA) [2.84] 

of 

Appeal 

Table 3. Most salient national courts by different metrics of preliminary references 2004-2018. In 
order not to focus extensively on outliers, we exclude courts that have referred fewer than 15 cases 
(one  case  a  year  on  average).  Unweighted  count  is  simply  the  total  number  of  references  n. 
Weighted count is calculated as ni * importancei where importance is measured on the ordinal 1-

4 scale. Average importance is 

(cid:2869)

(cid:3041)

 ∑ (cid:1861)(cid:1865)(cid:1868)(cid:1867)(cid:1870)(cid:1872)(cid:1853)(cid:1866)(cid:1855)(cid:1857)

(cid:3041)
(cid:3036)

. 

Our measure makes the most difference when we look at average importance 
of cases referred by national courts. Surprisingly, the Rechtbank Den Haag 
has referred, on average, the most important cases between 2004 and 2018. 
Upon closer inspection, we can see that its references relate predominantly 
to  the  processing  of  asylum  applications  and  prompted  three  Grand 
Chamber  judgments.76  At  the  same  time,  as  a  first-instance  court,  the 
Rechtbank Den Haag is the odd-one out in the broader picture painted by 
case importance. All other courts are either peak courts or appeal courts with 
an important standing in the domestic judicial hierarchy, such as the Court 
of  Appeal  (England  and  Wales)  and  the  Østre  Landsret  in  Denmark. 
Generally,  courts  from  "new"  Member  States  merely  seem  to  play  a 
supporting  role  in  the  reference  system.  Hence,  the  appearance  of  the 
Supreme  Court  of  Poland  on  the  list  of  courts  with  the  highest  average 
importance offers a rare glimpse behind the former Iron Curtain.  

76 

Joined Cases C-47/17 and C-48/17 X and X v Staatssecretaris van Veiligheid en Justitie 
ECLI:EU:C:2018:900; Case  C-331/16  K.  v  Staatssecretaris  van Veiligheid  en  Justitie 
ECLI:EU:C:2018:296; Case C-163/16 Christian Louboutin and Christian Louboutin Sas 
v van Haren Schoenen BV ECLI:EU:C:2018:423. 

 
 
 
 
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European Journal of Legal Studies  

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VI. CONCLUSION  

In a bid to move beyond assessments of the preliminary reference procedure 
that  merely  count  the  number  of  rulings  indiscriminately,  this  article 
introduced  a  new  ordinal  measure  of  case  importance  at  the  CJEU. 
Consistent with existing observations in the literature, we exploit variation 
in  case  disposition  by  the  Court  of  Justice.  We  deploy  this  measure  to 
investigate whether the Court considers references stemming from national 
peak  courts  or  non-peak  courts  as  more  important.  We  construct  our 
indicator on the basis of the largest dataset of preliminary references to date 
(n = 10,609). 

To  test  potential  variations  in  treatment,  we  formulate  two  different 
expectations  about  CJEU  attention  division  based  on  the  dichotomous 
position  of  courts  within  national  judicial  hierarchies.  The  hierarchy 
hypothesis  predicts  that  the  Court  allots  more  importance  to  references 
from peak courts because these wield more legal authority in their respective 
systems, have more time and resources at their disposal or generally handle 
difficult and indeterminate cases. The divide-and-conquer hypothesis, on the 
other hand, expects the CJEU to attach more significance to non-peak court 
cases as a way to stimulate the use of EU law throughout the entire national 
judicial  hierarchy.  The  Court  acts  this  way  to  prevent  peak  courts  from 
becoming  the  de  facto  gatekeepers  of  EU  law  use  by  monopolizing  the 
preliminary ruling procedure.  

Our  empirical  assessment  of  CJEU  treatment  of  references  suggests  that 
peak courts generally send more important references to Luxembourg. This 
finding  leads  us  to  believe,  as  others  increasingly  suggest  as  well,77  that  the 
importance attached to different preliminary references by the CJEU reflects 
a growing preference for cooperation with peak courts. Because resources of 
the  Court  are  limited,  decreasing  attention  to  non-peak  court  referrals  is 
merely  the  flipside  of  the  CJEU's  relationship  with  peak  courts  growing 
closer. This is not to say that cases from some non-peak courts cannot receive 
favourable treatment by the Court, as demonstrated by the Rechtbank Den 
Haag in recent years. Nonetheless, all the trends in the data that we examine 

77  Dyevre, Glavina and Atanasova (n 19); Pavone and Kelemen (n 20). 

 
 
 
 
 
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Which Courts Matter Most? 

155 

in this article corroborate the inclination of the CJEU to deem peak court 
references as more important. 

Despite  not  being  able  to  definitively  identify  the  mechanism  behind  the 
CJEU's peak court preference, our findings are highly relevant. Peak courts 
not only account for a large number of references but are also more likely than 
non-peak courts to refer cases that the CJEU deems legally important. Peak 
courts have thus increasingly managed to establish a central position in the 
system  through  which  the  CJEU  dispenses  its  doctrine.  Importantly,  the 
preliminary  ruling  mechanism  depends  on  such  cooperation  of  national 
courts. As a result, peak courts may just have bolstered their de facto position 
vis-à-vis the CJEU in the development of EU law. 

Our  research  leaves  room  for  further  investigation.  First,  our  measure  of 
importance  surpasses  the  confines  of  the  substantive  dimension  examined 
here. Scholars can use it to shed light on other aspects of European law and 
judicial  politics.  Second,  future  research  could  tease  apart  how  much  the 
different theoretical reasons contribute to explaining why the CJEU favours 
close  cooperation  with  domestic  peak  courts  over  non-peak  courts. 
Considering the relative power increase of these courts vis-à-vis the CJEU, it 
also remains to be seen how peak courts assert their growing influence on EU 
law.  Moreover,  peak  courts  from  "old"  Member  States  generally  drive 
European  legal  integration.  Some  courts  deviate  from  this  rule.  The 
Rechtbank  Den  Haag  is  a  first  instance  court  whose  cases  the  CJEU 
nevertheless deems of the utmost importance. Likewise, the Polish Supreme 
Court  is  a  peak  court  from  a  "new"  Member  State  that  finds  favourable 
reception  in  Luxembourg.  These  and  other  exceptions  warrant  closer 
inspection through case studies that enable researchers to dig deeper into the 
particular circumstances of individual domestic courts, such as the ongoing 
struggle  over judicial independence in Poland.78  This  ties in with our more 
general conviction that further qualitative investigation is necessary to fully 
unpack the mechanisms at play in the interaction between the CJEU and its 
national interlocutors. 

78  Laurent  Pech  and  Sébastien  Platon,  'Judicial  independence  under  threat:  The 
Court of  Justice to the  rescue  in  the  ASJP  case'  (2018)  55 Common  Market  Law 
Review 6 1827–1854. 

 
 
RECONCEPTUALISING EXTRATERRITORIALITY UNDER THE ECHR AS 
CONCURRENT RESPONSIBILITY: THE CASE FOR A PRINCIPLED AND 
TAILORED APPROACH 

Alexandros Demetriades* 

The law surrounding the extraterritorial application of the European Convention on 
Human  Rights  raises  two  key  controversies  which  have  troubled  legal  scholars  for 
over  two  decades.  First,  the  conceptual  foundations  of  jurisdiction  remain  unclear. 
Secondly,  the  nature  and  extent  of  a  respondent  State's  responsibility  regarding 
extraterritorial violations of Convention  rights has been bedevilled by uncertainty. 
This  paper  aims  to  clarify  these  issues.  The  author  advocates  a  purposive 
interpretation  of  the  case  law  which  would  give  rise  to  what  may  be  termed  a 
'concurrent and tailored' model of extraterritorial State responsibility. In devising this 
model,  the  paper  makes  two  propositions.  First,  it  explores  the  doctrinal  basis  of 
jurisdiction  and  argues  that  when  a  High  Contracting  Party  to  the  Convention  is 
operating in the territory of another signatory State, this should lead to the concurrent 
jurisdiction of both States under Article 1 ECHR. Secondly, the paper examines the 
nature  of  a  respondent  State's  obligations  and  consequent  responsibility  when  it  is 
acting  extraterritorially.  The  author  proposes  that  this  responsibility  should  be 
tailored according to that State's factual ability to secure the enjoyment of Convention 
rights in the circumstances of each case.  

Keywords:  Extraterritoriality,  ECHR, 
jurisdiction, positive obligations, attribution 

concurrent 

responsibility, 

TABLE OF CONTENTS 

I. INTRODUCTION ................................................................................................. 158 

II. SHOULD A PRINCIPLED AND TAILORED APPROACH BE ADOPTED TO 

DETERMINE STATE RESPONSIBILITY UNDER THE ECHR? ........................ 161 

1. The Need for a Principled Approach ..................................................................... 161 

2. Is a Tailored Approach Desirable? ....................................................................... 162 

* 

(LSE);  B.A. 

LL.M. 
alexandros.demetriades94@gmail.com. 

(Hons) 

(Cantab) 

(Downing  College).  Email  address: 

EJLS 12(1), April 2020, 157-194 

 doi:10.2924/EJLS.2019.015 

 
 
 
  
 
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European Journal of Legal Studies  

{Vol. 12 No. 1 

III. JURISDICTION UNDER ARTICLE 1 ECHR .................................................... 165 

1. 'Primarily Territorial' Jurisdiction ...................................................................... 165 

2. Establishing Extraterritorial Jurisdiction ............................................................ 166 

A. Customary Extraterritoriality ............................................................................ 166 
B. 'Effective Overall Control' ('The Spatial Model') ............................................. 166 
C. 'State Agent Authority and Control' ('The Personal Model') .......................... 167 

3. The Conceptual Foundations of Jurisdiction......................................................... 168 

A. Purely Legal? ........................................................................................................ 168 
B. Purely Factual? ..................................................................................................... 169 
C. Dual Nature .......................................................................................................... 171 

4. Concurrent Jurisdiction in Extraterritorial Cases ................................................ 172 

IV. EXTRATERRITORIALITY AS 'CONCURRENT AND TAILORED' 

RESPONSIBILITY UNDER ARTICLE 1 ECHR ................................................ 176 

1. Positive and Negative Obligations ......................................................................... 177 

2. Remedying a Conceptual Paradox ......................................................................... 179 

3. Responsibility under the Personal Model ............................................................... 179 

4. Responsibility under the Spatial Model ................................................................. 181 

5. The Problem of 'Extra-extraterritoriality' ........................................................... 186 

V. EVALUATING 'CONCURRENT AND TAILORED' RESPONSIBILITY IN 

CONTEXT ........................................................................................................ 187 

1. Tailored Responsibility rather than Tailored Jurisdiction .................................. 187 

2. Does the Model Remedy the 'Vacuum' Concern? .................................................. 188 

3. The Doctrinal Advantages of 'Concurrent and Tailored' Responsibility ............ 188 

4. 'Concurrent and Tailored' Responsibility May Provide More Comprehensive 

Protection ................................................................................................................ 190 

5. A Practical Obstacle to 'Concurrent and Tailored' Responsibility? ..................... 191 

6. 'Concurrent and Tailored' Responsibility as a Political Compromise .................. 192 

VI. CONCLUSION .................................................................................................. 193 

I. INTRODUCTION 

The European Convention on Human Rights ('ECHR' or 'the Convention') 
is  the  bedrock  of  human  rights  protection  in  Europe.  Article  1  ECHR 
imposes  an  international  law  obligation  on  State  Parties  to  'secure'  the 
Convention  rights  of  all  persons  within  their  jurisdiction.  The  provision 

 
 
 
 
 
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Reconceptualising Extraterritoriality under the ECHR 

159 

refers to the jurisdiction of each High Contracting Party to the Convention.1 
A  State's  jurisdiction,  along  with  its  obligations  under  the  Convention,  is 
usually  confined  to  its  territory.2  Exceptionally,  the  European  Court  of 
Human Rights ('ECtHR' or 'the Court') has held that a State's jurisdiction 
under Article 1 (and, therefore, its obligations) may be extended beyond its 
territory (i.e. extraterritorially).3  

The law regarding the extraterritorial application of the ECHR has become 
increasingly  important  as  more  State  Parties  to  the  Convention  engage  in 
cross-border activities. The Court has developed the law of extraterritoriality 
to  ensure  that  States  are  held  accountable  for  the  commission  of  human 
rights violations, even if these occur outside their own territory. The aim was 
to avoid the creation of 'a regrettable vacuum in the system of human-rights 
protection'.4 

Two  elements  of  the  law  regarding  the  extraterritorial  application  of  the 
ECHR  are  particularly  controversial.  First,  the  conceptual  nature  of 
jurisdiction under Article 1 ECHR is uncertain. This compromises the ability 
of applicants to determine whether they come within the purview of a State's 
jurisdiction and, consequently, whether that State is obliged to secure their 
Convention rights.  

Secondly,  the  nature  and  extent  of  the  obligations  imposed  on  respondent 
States, when acting extraterritorially, is unclear. The Court's jurisprudence 
does not specify whether the obligations imposed on States are positive (to 
ensure  the  enjoyment  of  rights)  or  negative  (to  respect  rights).  This  is 
significant because, while positive obligations are tailored to the factual (i.e. 
de facto) ability of the respondent State to secure the Convention rights of the 
victim,  negative  obligations  are  not.  Without  distinguishing  between 
different types of obligations, it becomes impossible to ascertain the extent 
of the responsibility incumbent on respondent States when their obligations 

1 

2 

3 

4 

Samantha Besson, 'The Extraterritoriality of the European Convention on Human 
Rights:  Why  Human  Rights  Depend  on  Jurisdiction  and  What  Jurisdiction 
Amounts to' (2012) 25 Leiden Journal of International Law 857, 862.  
Banković v Belgium App no 52207/99 (ECtHR, 12 December 2001) para 59. 
Ibid para 61. 
Cyprus v Turkey App no 25781/94 (ECtHR, 10 May 2001) para 78. 

 
 
 
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European Journal of Legal Studies  

{Vol. 12 No. 1 

are breached.5 In turn, the measures required of States in order to discharge 
this responsibility become indeterminable. 

To address these issues, this paper proposes an alternative interpretation of 
the  case  law.  This  will  lead  to  the  adoption  of  what  may  be  termed  a 
'concurrent and tailored' model of State responsibility. This model is based 
on two novel propositions. First, the exercise of extraterritorial jurisdiction 
by  a  respondent  State  under  the  Convention  should  give  rise  to  the 
concurrent  responsibility  of  the  State  on  whose  territory  the  violation  is 
committed,  as  well  as  the  State  acting  extraterritorially.6  Secondly,  the 
respective  responsibility  of  each  State  should  be  tailored  to  its  ability  to 
secure the victim's Convention rights on the facts of each case. This tailoring 
of obligations could be achieved by recognising that positive obligations are 
incumbent on both the territorial State and the State acting extraterritorially. 
The  proposed  model  goes  some  way  towards  achieving  the  'functional' 
approach  advocated  by  some  commentators.7  However,  the  present 
approach is rooted in the doctrinal framework developed by the ECtHR. 

The analysis begins by establishing the premise that a principled and tailored 
approach  to  determining  State  responsibility  is  desirable.  This  article  will 
then examine the doctrinal basis for achieving these end goals beginning with 
jurisdiction. It is argued that jurisdiction is a creature of both law and fact. In 
cases of extraterritoriality, there is a theoretical fragmentation of jurisdiction 
so that one State possesses the legal right to exercise jurisdiction and another 
State  exercises  it  in  fact.  It  will  be  argued  that  this  divergence  leads  to 
concurrent jurisdiction under Article 1 ECHR. 

5 

6 

Responsibility is the difference between the standard expected of the State (i.e. its 
obligation) and the actual conduct of the State. It follows that the scope of a State's 
responsibility is contingent upon the extent of its original obligations. 
The responsibility in question is 'concurrent' rather than 'shared'. This is because 
each respondent State's responsibility arises out of the breach of a distinct primary 
obligation. This is evident in the analysis below. 

7  Youval  Shany, 

'Taking  Universality  Seriously:  A  Functional  Approach  to 
Extraterritoriality in International Human Rights Law' (2013) 7(1) Law and Ethics 
of Human Rights 47. 

 
 
 
 
 
 
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Having  established  concurrent 
jurisdiction  and  therefore  concurrent 
obligations,  this  paper  will  distinguish  between  the  different  models  of 
extraterritorial  jurisdiction  (those  based  on  territorial  control  and  those 
based on personal control over the victim). It is argued that, depending on 
the model used, different obligations should be incumbent on the respondent 
States. These respective obligations (and consequent responsibility) should 
be tailored to the State's factual ability to safeguard the Convention rights in 
the  circumstances.  The  main  doctrinal  tool  used  to  attain  this  tailored 
approach  is  the  distinction  between  positive  obligations  and  negative 
obligations. This dichotomy depends on whether the relevant conduct can be 
attributed to the respondent States. 

Finally, the proposed model of concurrent responsibility will be evaluated to 
determine  whether  it  achieves  the  prevalent  purpose  of  the  law  on 
extraterritoriality by filling the 'vacuum' in human rights protection, whether 
it is consistent with the jurisprudence of the ECtHR and with related areas 
of public international law, and whether it constitutes a politically acceptable 
model.  

II. SHOULD A PRINCIPLED AND TAILORED APPROACH BE ADOPTED TO 
DETERMINE STATE RESPONSIBILITY UNDER THE ECHR? 

This paper proposes a principled approach that will allow the extraterritorial 
responsibility of Contracting Parties to be tailored according to the States' 
ability to secure the enjoyment of Convention rights in the circumstances of 
each case. The first step is to ask whether this ultimate goal is desirable.  

1. The Need for a Principled Approach 

For  the  purposes  of  this  paper,  a  principled  approach  is  one  which  is 
characterised  by  clarity  and  doctrinal  consistency.  In  order  to  attain  such 
clarity,  the  ECtHR  should  identify  the  type  of  obligation  which  binds  the 
respondent State when it acts extraterritorially, as well as the extent of this 
obligation.  To  achieve  doctrinal  consistency,  the  law  of  extraterritoriality 
must not be internally incoherent. Furthermore, where possible, the law of 
extraterritoriality  should  be  consistent  with  the  norms  of  public 
international law unless the Court explicitly states that it is attributing a sui 
generis meaning to certain concepts. Adopting a principled approach would 

 
 
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allow  the  Court  to  devise  a  theoretically  sound  conception  of  jurisdiction 
under Article 1 ECHR. It would also enable respondent States to predict ex 
ante the extent of their responsibility arising out of human rights violations.  

It has been judicially acknowledged that the law of extraterritoriality 'has […] 
been  bedevilled  by  an  inability  […]  to  establish  a  coherent  and  axiomatic 
regime'.8  Admittedly,  the  Court's  task  of  developing  an  impartial  legal 
doctrine of extraterritorial jurisdiction is unenviable. Such cases often arise 
in  politically  charged  conditions,  such  as  the  war  on  terror.9  Nevertheless, 
given  the  politically  contentious  issues  raised,  a  coherent  legal  analysis  of 
State responsibility  is  necessary.  The alternative would be,  through lack  of 
guidance,  to  allow  unlimited  discretion  to  the  Committee  of  Ministers 
('Committee')  when  supervising  the  execution  of  the  Court's  judgments.10 
Putting  these  politically  sensitive  cases  before  this  political  body,  without 
legal  constraints,  could  lead  to  the  collapse  of  legal  doctrine  into  political 
chaos. 

This  paper  argues  that  the  Court  should  explicitly  delimit  States' 
responsibility within its judgments, without rejecting the orthodox view that 
the Court's judgments are 'essentially declaratory'.11 The Court could provide 
the  parameters  of  responsibility,  without  necessarily  prescribing  a  remedy, 
thereby  providing  legal  guidance  to  the  Committee.  This  proposition  is 
consistent with the Court's practice of becoming increasingly involved in the 
execution of its own judgments.12 

2. Is a Tailored Approach Desirable? 

The  proposed  model  of  'concurrent  and  tailored  responsibility'  aims  to 
ensure  that  the  responsibility  of  each  respondent  State  is  'tailored'  to  its 
in  the 
ability  to  secure  the  enjoyment  of  the  Convention  rights 

8 

Concurring Opinion of Judge Bonello, Al-Skeini v UK App no 55721/07 (ECtHR, 7 
July 2011) para 4. 

9  Al-Skeini v UK App no 55721/07 (ECtHR, 7 July 2011).  
10  Article 46 ECHR. 
11  Assanidze v Georgia App no 71503/01 (ECtHR, 24 March 2004) para 202. 
12  Costas  Paraskeva, 

'European  Court  of  Human  Rights:  From  Declaratory 
Judgments to Indications of Specific Measures' (2018) 1 European Human Rights 
Law Review 46, 55-56. 

 
 
 
 
 
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Reconceptualising Extraterritoriality under the ECHR 

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circumstances. This will depend on the degree of control that the respondent 
State exercises over the situation which gives rise to a violation of Convention 
rights.  

Support  for  this  tailored  approach  to  extraterritorial  obligations  had  been 
given by Sedley LJ in the UK Court of Appeal in  R (on the application of Al-
Skeini) v Secretary of State for Defence.13 However, he correctly concluded that, 
at the time, such an approach could not be reconciled with the  Strasbourg 
jurisprudence.14  At  that  time,  Banković  v  Belgium  was  high  authority  on 
extraterritoriality.  This  case  concerned  the  aerial  bombing  of  the  Serbian 
Television headquarters in Belgrade by NATO forces. The Court held that 
the  Convention  States  which  partook  in  the  operation  did  not  have 
jurisdiction  under  Article  1  ECHR.  In  doing  so,  the  Grand  Chamber 
explicitly  rejected  that  Convention  rights  could  be  'divided  and  tailored  in 
accordance  with  the  particular  circumstances  of  the  extra-territorial  act  in 
question'.15  

Since Banković, the Grand Chamber has reassessed this position. In Al-Skeini 
v UK, the Court dealt with the deaths of the applicants' relatives at the hands 
of British soldiers in Southern Iraq during the UK's security operations there. 
The Court held:  

It is clear that, whenever the State, through its agents, exercises control and 
authority  over  an  individual,  and  thus  jurisdiction,  the  State  is  under  an 
obligation under Article 1 to secure to that individual the rights and freedoms 
under  Section  I  of  the  Convention  that  are  relevant  to  the  situation  of  that 
individual.  In  this  sense,  therefore,  the  Convention  rights  can  be  'divided  and 
tailored'.16 

Some  writers  have  suggested  that  this  judgment  has  overruled  Banković  on 
this  point,  thereby  allowing  the  Court  to 
'tailor'  the  extraterritorial 
responsibility  of  respondent  States  according  to  the  degree  of  control 
exercised  over  the  impugned  situation.17  Even  on  a  narrow  reading  of  the 

13 

14 

15 

[2005] EWCA Civ 1609, para 197. 
Ibid para 207. 
Banković (n 2) para 75. 

16  Al-Skeini (n 9) para 137 [emphasis added]. 
17  Daragh Murray, Practitioners' Guide to Human Rights Law in Armed Conflict (Oxford 

University Press 2016) 3.19. 

 
 
 
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judgment, it is clear that it is open to future judgments to consider whether a 
tailored approach to extraterritorial responsibility is appropriate. Given this 
opportunity, it is necessary to make the case for consolidating this dictum.  

The  argument  in  favour  of  the  tailored  approach  to  extraterritorial  State 
responsibility is based on the untenability of the alternative approach. The 
alternative  is  what  may  be  termed  a  'standardised'  conception  of  State 
responsibility (i.e. equivalent to the responsibility of the State if the violation 
had occurred by the State's agents in its own territory). This would likely give 
rise  to  a  responsibility  to  remedy  the  violation  through  nothing  less  than 
restitutio in integrum.18 'Standardised responsibility' is objectionable because it 
disregards the hostile institutional context in which human rights operate.19 
Therefore,  human  rights  obligations 
(and  responsibility)  should  be 
determined pragmatically. The tailored approach will preserve the integrity 
regime.  Conversely,  standardised 
of 
responsibility  could  lead  to  the  imposition  of  an  'unrealistic'20  level  of 
responsibility on Convention States. This responsibility would be impossible 
to discharge through individual or general measures because the respondent 
State  may 
lack  the  requisite  control  to  implement  such  measures 
extraterritorially.  Hence,  the  responsibility  imposed  by  the  Court  will  not 
translate  into  tangible  results,  undermining  the  integrity  of  the  ECHR 
regime. This explains the Court's unwillingness to impose 'an impossible or 
disproportionate  burden'  on  respondent  States.21  It  follows  that,  if  the 
Court's  judgments  are  to  contribute  to  'the  maintenance  and  further 
realisation of human rights',22 they must adopt a tailored approach by making 

the  European  human 

rights 

18 

Papamichalopoulos v Greece (Just Satisfaction) App no 14556/89 (ECtHR, 31 October 
1995) para 34.  

19  Christian Tomuschat, Human Rights: Between Idealism and Realism (3rd edn, Oxford 

University Press 2014) 95. 

20  Olivier De Schutter, 'Globalization and Jurisdiction: Lessons from the European 
Convention on Human Rights' (2006) 6 Baltic Yearbook of International Law 185, 
205. 

21  Osman  v  UK  App  no  87/1997/871/1083  (ECtHR,  28  October  1998),  para  116; 
Concurring Opinion of Judge Yudkivska, Sargsyan v Azerbaijan App no 40167/06 
(ECtHR, 16 June 2015). 
Statute of the Council  of  Europe (entered into force 5 May 1949) 87 UNTS  103, 
Article 1(b). 

22 

 
 
 
 
 
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State  responsibility  commensurate  to  each  State's  ability  to  secure  the 
enjoyment of Convention rights in the circumstances. 

III. JURISDICTION UNDER ARTICLE 1 ECHR 

Article  1  ECHR  indicates  that  a  State's  obligation  to  'secure'  Convention 
rights  is  confined  to  persons  within  that  State's  jurisdiction.  Hence, 
jurisdiction is a necessary hurdle when devising a principled approach to State 
obligations and consequent responsibility under the ECHR.23 

It will be argued that jurisdiction can emanate either from legal right or from 
factual  (i.e.  de  facto)  control.  When  these  two  elements  are  exercised  by 
different  States  (as  in  cases  of  extraterritoriality),  this  should  trigger 
concurrent jurisdiction. 

1. 'Primarily Territorial' Jurisdiction  

The ECtHR has held that jurisdiction is 'primarily territorial'.24 Implicit in 
this dictum are two presumptions. First, there is a negative presumption that 
a State will not exercise its jurisdiction beyond its lawful territorial borders. 
This  presumption  is  normative  (i.e.  based  on  the  norms  of  public 
law  regarding  territorial  title)  and  will  be  rebutted 
international 
'exceptionally'.25 It is always displaced in cases of extraterritorial jurisdiction.  

Secondly, the positive presumption of territoriality operates so that a State is 
presumed  to  exercise  jurisdiction  throughout  the  whole  of  its  de  jure 
territory.26 The Court has applied this positive presumption in cases where 
the  respondent  State  had  no  factual  control  over  the  area  in  question.27 
Therefore, this appears to be a normative presumption that the State with 
territorial  title  in  international  law  also  has  jurisdiction  under  Article  1 

23  Michael  O'Boyle, 

'The  European  Convention  on  Human  Rights  and 
Extraterritorial  Jurisdiction:  A  Comment  on  'Life  after  Bankovic''  in  Alphonsus 
Coomans and Menno Kamminga (eds), Extraterritorial Application of Human Rights 
Treaties (Intersentia 2004) 131. 

24  Banković (n 2) para 59. 
25 

Ibid para 61. 
Ilascu v Moldova and Russia App no 48787/99 (ECtHR, 8 July 2004) para 312. 
Ibid para 331. 

26 

27 

 
 
 
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ECHR.  The  generally  accepted  view  is  that  this  presumption  may  be 
rebutted in 'exceptional circumstances'.28 

2. Establishing Extraterritorial Jurisdiction  

Jurisdiction  answers  the  question  of  whether  the  victim  is  sufficiently 
proximate to a respondent State. There are three ways to establish this link 
extraterritorially.  

A. Customary Extraterritoriality 

A State may have extraterritorial 'jurisdiction resulting from non-territorial 
legal  competence'.29  This  form  of  extraterritoriality  may  be  exercised 
through  consular  agents  and  other  instances  recognised  by  customary 
international law.30 

B. 'Effective Overall Control' ('The Spatial Model') 

Alternatively, extraterritorial jurisdiction may be established over a territory 
using  the  'spatial  model'.31  This  model  was  devised  in  Loizidou  v  Turkey 
(Preliminary Objections).32 That case concerned a Greek-Cypriot woman who 
was prevented from accessing her property located within the territory of the 
'Turkish  Republic  of  Northern  Cyprus'  ('TRNC'),  a  subordinate  local 
administration established by Turkey within the de jure territory of Cyprus. 
In its judgment, the ECtHR formulated the test of 'effective overall control' 
jurisdiction  over  a  territory.  The  Court 
to  establish  extraterritorial 
emphasised  that  extraterritorial  jurisdiction  may  be  found  when  the 

28  Partly  Dissenting  Opinion  of  Judge  Bratza  et  al.,  Ilascu  (n  26),  para  3.  See  Kjetil 
Mujezinović Larsen, 'Territorial Non-Application of the European Convention on 
Human Rights' (2009) 78 Nordic Journal of International Law 73, 93. 

29  Hugh  King,  'The  Extraterritorial  Human  Rights  Obligations  of  States'  (2009)  9 

Human Rights Law Review 521, 522. 

30  Banković (n 2) para 73. 
31  Ralph Wilde, 'Triggering State Obligations Extraterritorially: The Spatial Test in 

Certain Human Rights Treaties' (2007) 40 Israel Law Review 503. 

32  App no 15318/89 (ECtHR, 23 March 1995). 

 
 
 
 
 
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Reconceptualising Extraterritoriality under the ECHR 

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respondent  State  exercises  factual  control  over  the  territory,  even  if  such 
control is unlawful in international law.33 

The 'effective overall control' threshold was subsequently lowered in Ilascu v 
Moldova and Russia, which arose as a result of the applicants' imprisonment 
and  ill-treatment  within  the  territory  of  the  'Moldavian  Republic  of 
Transdniestria' ('MRT'), a secessionist local administration within Moldova. 
In this case, the Court established Russia's extraterritorial jurisdiction over 
the territory of the  'MRT' because Russia exerted  'decisive influence' over 
the  'MRT'  administration.34  This  less  demanding  threshold  focuses  on 
'military,  economic,  financial  and  political  support',  rather  than  military 
presence.35  'Decisive  influence'  has  been  established  when  the  military 
presence  of  the  respondent  State  is  minimal,  as  long  as  the  local 
administration survived 'by virtue' of the support rendered by the respondent 
State Party.36 The Court has used the two tests together and interchangeably, 
particularly  in  its  judgments  concerning  the  'Nagorno-Karabakh  Republic' 
('NKR').37  

C. 'State Agent Authority and Control'38 ('The Personal Model') 

Extraterritorial jurisdiction may also be established on the 'personal model'.39 
This is premised on the respondent State bringing the applicant within its de 
facto  control  through  the  operation  of  its  agents  outside  its  own  territory. 
This  too  is  a  factual  relationship  between  the  respondent  State  and  the 
applicant, irrespective of the lawfulness of the State's actions.40 

The personal model was applied in Öcalan v Turkey, where the leader of the 
Kurdistan Workers' Party was held to have entered Turkey's jurisdiction as 

33 

34 

35 

Ibid para 62. 
Ilascu (n 26) para 392. 
Ibid paras 382-394. 

36  Catan v Moldova and Russia App nos 43370/04, 8252/05 and 18454/06 (ECtHR, 19 

October 2012) paras 111-123. 

37  Chiragov v Armenia App no 13216/05 (ECtHR, 16 June 2015) para 186. 
38  Al-Skeini (n 9) paras 133-137. 
39  Marko  Milanovic,  Extraterritorial  Application  of  Human  Rights  Treaties  (Oxford 

University Press 2011) 173. 

40  Al-Skeini (n 9) paras 136-137. 

 
 
 
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soon as he was within the 'authority and control'41 of Turkish officials, even 
though  this  occurred  in  Kenya.  This  model  unequivocally  applies  when 
applicants are in the custody of the respondent State. Moreover, the personal 
model  will  apply  when  State  agents  operate  extraterritorially  in  territories 
where the sending State wields 'public power'.42 It remains unclear whether 
the mere use of force by State agents will trigger extraterritorial jurisdiction.43  

It  should  be  noted  that  establishing  jurisdiction  extraterritorially  is 
contingent  on  the  operation  of  persons  which  can  be  attributed  to  the 
respondent  State  outside  the  latter's  territory.44  Attribution  is  determined 
according  to  the  International  Law  Commission's  Draft  Articles  on  the 
Responsibility of States for Internationally Wrongful Acts ('ARSIWA').45  

3. The Conceptual Foundations of Jurisdiction   

A. Purely Legal? 

In Banković, the Court held that jurisdiction under Article 1 ECHR should 
mirror the meaning of the term in public international law.46 In this sense, 
'[j]urisdiction is the term that describes the limits of the legal competence of 
a State … to make, apply, and enforce rules of conduct upon persons'.47  

41  Öcalan v Turkey App no 46221/99 (ECtHR, 12 May 2005) para 91. 
42  Marko  Milanovic,  'Al-Skeini  and  Al-Jedda  in  Strasbourg'  (2012)  23  European 

Journal of International Law 121, 131. 

43  Cf.  Banković  (n  2)  and  Andreou  v  Turkey  App  no  45653/99  (ECtHR,  27  October 

2009) para 25. 
44  Vasilis  Tzevelekos, 

45 

'Reconstructing  the  Effective  Control  Criterion 

in 
Extraterritorial  Human  Rights  Breaches:  Direct  Attribution  of  Wrongfulness, 
Due  Diligence,  and  Concurrent  Responsibility'  (2014)  36  Michigan  Journal  of 
International Law 129, 136. 
ILC, Draft Articles on the Responsibility of States for Internationally Wrongful 
Acts, Report of the ILC on the work of its Fifty-third session, (A/56/10) (2001); See 
also Loizidou v Turkey (Merits) App no 15318/89 (ECtHR, 18 December 1996) para 
52, where the ECtHR stated that it adheres to the public international law rules of 
attribution. 

46  Banković (n 2) para 61. 
47  Christopher  Staker,  'Jurisdiction'  in  Malcolm  Evans  (ed),  International  Law  (4th 

edn, Oxford University Press 2014) 309. 

 
 
 
 
 
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Reconceptualising Extraterritoriality under the ECHR 

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This dictum should not be read as suggesting that Article 1 jurisdiction is a 
purely legal relationship between the respondent State and the victim. There 
are two objections to this interpretation. First, the Court has recognised that 
extraterritorial  jurisdiction  can  be  established  when  the  respondent  State 
exercises  unlawful  factual  control  over  the  victim  both  pre-Banković48  and 
post-Banković.49 Secondly, a purely legal notion of jurisdiction should not be 
adopted because, in that case, jurisdiction (and the human rights obligations 
attached to it) could only be established when the State was acting within its 
legal competence. A State acting unlawfully would therefore be able to freely 
violate  human  rights.50  Thus,  the  predominant  view  is  that  jurisdiction 
incorporates a factual element.51 

B. Purely Factual? 

Most  commentators  suggest  that  Article  1  jurisdiction  denotes  a  factual 
relationship  between  the  perpetrating  State  and  the  victim.52  Milanovic 
argues that jurisdiction should be established whenever a State exercises  de 
facto power  over a  victim.53 While  there  is a compelling  case  for  including  a 
factual  element  within  jurisdiction,  it  is  unclear  why  jurisdiction  should 
denote an exclusively factual relationship between the respondent State and 
the victim. 

It  is  argued  that  a  unitary  factual  doctrine  of  jurisdiction  is  inappropriate 
because:  (i)  it  is  inconsistent  with  the  case  law;  (ii)  it  is  theoretically 
incoherent; and (iii) it may lead to the creation of a  'vacuum' in the human 
rights regime. 

First,  an  exclusively  factual  concept  cannot  be  reconciled  with  the  Court's 
case  law.  On  a  factual  view  of  jurisdiction,  actual  power  will  give  a  State 

48  Loizidou (Preliminary Objections) (n 32) para 62. 
49  Chiragov (n 37) para 186. 
50  King (n 29) 536. 
51  Wilde (n 31) 508. 
52  Karen  Da  Costa,  Extraterritorial  Application  of  Selected  Human  Rights  Treaties 

(Martinus Nijhoff Publishers 2013) 253. 

53  Milanovic (n 39), 41. See also Loukis Loucaides, 'Determining the extra-territorial 
effect of the European Convention: Facts, Jurisprudence and the Bankovic case', 
(2006) 4 European Human Rights Law Review 391, 394. 

 
 
 
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jurisdiction  over  a  person.  Logically,  the  loss  of  power  should  lead  to  the 
absence of jurisdiction. This has consistently been refuted in the judgments 
concerning the 'MRT'.54 In these cases, the Court has held that Moldova, as 
the sovereign territorial State, retains jurisdiction over the relevant territory, 
even  though  it  does  not  meet  the  factual  threshold  required  (i.e.  'effective 
overall control' or 'decisive influence'). Moreover, the Court has clarified that 
jurisdiction was found 'because Moldova was the territorial State'.55 Another 
rejection of the purely factual view came in Sargsyan v Azerbaijan. In this case, 
the ECtHR held that Azerbaijan retained jurisdiction even though control 
over the relevant territory was disputed. The Court stated:  

Even  in  exceptional  circumstances,  when  a  State  is  prevented  from 
exercising  authority  over  part  of  its  territory…it  does  not  cease  to  have 
jurisdiction within the meaning of Article 1 of the Convention.56 

Such cases cannot be explained on a purely factual view as jurisdiction clearly 
emanates from legal title over the territory.57 

Furthermore, the factual conception of jurisdiction cannot explain instances 
of extraterritorial jurisdiction recognised in international law and under the 
ECHR.  For  example,  the  actions  of  diplomatic  agents  may  bring  an 
individual outside their State's territory within the scope of its jurisdiction 
under the Convention.58 This extraterritorial jurisdiction emanates from the 
State's 'lawful competence' and not from factual control.59 

The  second  objection  is  theoretical.  In  advancing  his  factual  perspective, 
Milanovic argues that  'the source [of sovereignty] is  in the effectiveness  of 
inhabitants'.60  However,  a 
State  power  over  a  territory  and 
constitutionally organised entity does not necessarily amount to a sovereign 
State.  Illustrative  of  this  point  are  pseudo-states,  such  as  the  'TRNC', 

its 

54 

Ilascu  (n  26)  para  333;  Braga  v  Moldova  and  Russia  App  no  76957/01  (ECtHR,  17 
October 2017) paras 22-23. 

55  Mozer v Moldova and Russia App no 11138/10 (ECtHR, 23 February 2016) para 99 

[emphasis added]. 

56  App no 40167/06 (ECtHR, 16 June 2015) para 130. 
57  Milanovic (n 39) 107. 
58  X v Federal Republic of Germany App no 1611/62 (ECommHR, 25 September 1965). 
59  King (n 29) 537. 
60  Milanovic (n 39) 59. 

 
 
 
 
 
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Reconceptualising Extraterritoriality under the ECHR 

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established  on  territory  over  which  Cyprus  remains  sovereign,  despite  the 
lack  of  factual  control.  Therefore,  it  is  argued  that  sovereignty  necessarily 
includes  a  legal  element.  Furthermore,  sovereignty  is  a  precondition  for 
jurisdiction under the Convention because only sovereign States may ratify 
the  Convention,  thereby  obtaining  jurisdiction  under  Article  1  ECHR. 
Hence, jurisdiction cannot be viewed in purely factual terms.  

Finally, a purely factual view of jurisdiction is undesirable on policy grounds. 
If a State Party cedes administration of a territory to another body, thereby 
relinquishing  its  factual  control,  then,  on  the  purely  factual  view  of 
jurisdiction,  no  Contracting  Party  will  have  jurisdiction  over  this  territory. 
For example, while Cyprus retains sovereign title over the buffer zone on the 
island, it has ceded control of that territory to the United Nations Force in 
Cyprus ('UNFICYP'). If the ECtHR does not recognise the jurisdiction of 
Cyprus  over  the  buffer  zone,  this  would  create  a  human  rights  'vacuum' 
within  the  éspace  juridique  of  the  Convention.  This  limitation  has  been 
recognised even by proponents of the factual conception of jurisdiction.61  

C. Dual Nature 

It  is  clear  that,  to  align  the  concept  of  jurisdiction  with  the  case  law, 
jurisdiction must encompass both  factual and legal elements.62 One should 
attempt to give this view some coherent theoretical foundations.  

It is argued that jurisdiction, in the public international law sense, has two 
component  elements:  (i)  a  subject  and  (ii)  an  object.  The  'subject'  of 
jurisdiction  is  the  delimitation  of  different  States'  rights  to  exercise 
jurisdiction in international law so as to avoid a 'clash of sovereignties'.63 In this 
respect, jurisdiction is limited to cases where the State has a sovereign right 
to act. Conversely, the 'object' of jurisdiction in the public international law 
jurisdiction64  (i.e.  the  ability  of  a  State  to 
sense  is  municipal 
constitutionally organise itself in order to make and enforce rules). This is a 
matter of domestic law and is therefore treated as fact from the perspective 

law 

61  Larsen (n 28) 84. 
62  King (n 29). 
63  Cedric Ryngaert, Jurisdiction in International Law (2nd edn, Oxford University Press 

2015) 22. 

64  Besson (n 1) 870. 

 
 
 
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of international law.65 Domestic law jurisdiction may exist in contravention 
of international law. 

law 

in  fact 

(i.e.  domestic 

jurisdiction).  However, 

Usually, the legal right to exercise jurisdiction coexists with the ability to do 
so 
in  cases  of 
extraterritoriality, there is a fragmentation between the two components so 
that one State has the right to exercise jurisdiction in international law (de jure 
jurisdiction)  and  another  has  the  de  facto  ability  to  control  the  individual 
through municipal constitutional organs (de facto jurisdiction). In order to be 
considered  an  exercise  of  jurisdiction,  the  actions  of  these  municipal 
constitutional organs must reflect the acts of a sovereign State.66  

It is argued that the Court has treated each constituent element of what may 
collectively be called  'public international law jurisdiction' as being able, in 
itself,  to  establish  jurisdiction  under  Article  1  ECHR.  This  explains  why 
sometimes  jurisdiction  may  be  established  through  legal  right  (de  jure 
jurisdiction) while, in others, it may be established through factual control (de 
facto jurisdiction). Thus, jurisdiction, for the purposes of Article 1, is exclusive 
only  when  factual  control  is  justified  by  virtue  of  a  sovereign  right  in 
international law so that de facto and de jure jurisdiction are exercised by the 
same State.67 

4. Concurrent Jurisdiction in Extraterritorial Cases  

If each constituent element of public international law jurisdiction satisfies 
the  Article  1  threshold,  it  follows  that  when  different  Contracting  Parties 
exercise  sovereign  rights  and  factual  control  over  the  victim  or  territory 
respectively, concurrent jurisdiction is established under the ECHR.68 Given 

65  German Interests in Polish Upper Silesia (Germany v Poland), [1926] PCIJ Rep Series A 

66 

No 7, 19. 
Sarah  Miller,  'Revisiting  Extraterritorial  Jurisdiction:  A  Territorial  Justification 
for  Extraterritorial  Jurisdiction  under  the  European  Convention'  (2009)  20 
European  Journal  of  International  Law  1223,  1245.  A  similar  concept  to  de  facto 
jurisdiction has been developed by Miller in the form of  'functional sovereignty'. 
However, her view differs from that propounded here because she ignores the legal 
nature of intra-territorial jurisdiction absent any factual control. 

67  Besson (n 1) 869. 
68  Tzevelekos (n 44) 164-166. 

 
 
 
 
 
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that factual jurisdiction is well established and set out above, this section will 
focus  on  the  argument  in  favour  of  retaining  the  sovereign  State's  intra-
territorial de jure jurisdiction, even if that State has no factual control over the 
victim.69 This de jure jurisdiction will operate concurrently with the de facto 
jurisdiction  of  the  respondent  State,  which  exerts  factual  control  over  the 
victim.  

It should be recognised that concurrent jurisdiction was not always the norm. 
In the early case of An v Cyprus,70 the (now defunct) European Commission 
of Human Rights ('ECommHR') held that the Republic of Cyprus could not 
be  held  responsible  for  violations  occurring  within  the  territory  of  the 
'TRNC'. This suggests that the de jure jurisdiction of Cyprus over the relevant 
territory had been displaced because it did not factually control that territory.  

It is argued that An does not reflect the current position of the law. First, the 
case has little precedential value as it was decided prior to the development 
of the law of extraterritoriality. Moreover, the Commission had reached an 
incorrect result in Loizidou itself.71 Secondly, An has arguably been overruled 
by a string of cases recognising that the sovereign State will retain its de jure 
jurisdiction over a given territory, even if it does not control that area in fact. 
This will operate concurrently with the de facto jurisdiction of the State acting 
extraterritorially. The above proposition was first endorsed in Ilascu where, 
despite concluding that Russia exercised de facto jurisdiction over the 'MRT', 
the Grand Chamber held:  

…  [W]here  a  Contracting  State  is  prevented  from  exercising  its  authority 
over the whole of its territory by a constraining  de facto situation … it does 
not thereby cease to have jurisdiction within the meaning of Article 1 of the 
Convention over that part of its territory.72 

The  principle  that  sovereignty  will  trigger  Article  1  jurisdiction  was 
reaffirmed  in  absolute  terms  in  Sargsyan.73  It  appears  that,  since  An,  the 
ECtHR  has  never  explicitly  displaced  the  positive  presumption  that  a 

69  Al-Skeini (n 9) paras 133-140. 
70  App no 18270/91 (ECommHR, 8 October 1991). 
71  Chrysostomos,  Papachrysostomou  and  Loizidou  App  nos  15299/89,  15300/89  and 

15318/89 (ECommHR, 4 March 1991).  
Ilascu (n 26) para 333. 
Sargsyan (n 56) para 130.  

72 

73 

 
 
 
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sovereign State exercises jurisdiction under Article 1 ECHR over the whole 
of its de jure territory (i.e. the positive presumption of territoriality), even in 
cases  where  the  sovereign  State  lacks  factual  control.  Consequently,  this 
presumption has crystallised into an immovable rule of law.74  

The  logical  first  query  is  why  the  Court  has  not  recognised  concurrent 
jurisdiction in the cases pertaining to the  'TRNC'. The applicants in these 
cases alleged that Turkey violated their Convention rights. If the applicant 
only brings a claim against one State, then only that State's responsibility may 
be  determined  by  the  ECtHR.75  Those  who  argue  that  concurrent 
jurisdiction  in  Ilascu  is  an  aberration  and  that  Loizidou  is  the  rule  are 
suggesting  that  the  Court's  omissions  are  more  authoritative  than  its 
statements.76 

In Cyprus v Turkey, the Court stated that, had it found that Turkey did not 
have jurisdiction over the 'TRNC', this: 

would  result  in  a  regrettable  vacuum  in  the  system  of  human-rights 
protection in  the  territory in question  by removing  from individuals  there 
the  benefit  of  the  Convention's  fundamental  safeguards  and  their  right  to 
call a High Contracting Party to account…77 

De Schutter interprets this statement as establishing that Turkey's effective 
overall  control  over  the  'TRNC'  had  displaced  Cyprus'  jurisdiction  for  the 
purposes  of  Article  1.78 However,  he  recognises  that  this  is  contrary  to  the 
subsequent  judgment  of  Ilascu. With  hindsight,  the  better  view  is  that  the 
Court was not using a legal term of art. Rather, it was describing the practical 
situation which would have occurred.  

It  must  be  recognised  that  the  argument  for  an  irrebuttable  positive 
presumption of territoriality is unorthodox. Some writers maintain that it is 
'possible  for  a  State  to  lose  jurisdiction  under  Article  1  over  a  part  of  its 

74  Antal  Berkes,  'The  Nagorno-Karabakh  Conflict  before  the  European  Court  of 
Human  Rights:  Pending  Cases  and  Certain  Forecasts  on  Jurisdiction  and  State 
Responsibility' (2013) 52 Military Law & Law of War Review 379, 425. 
Jaloud v The Netherlands App no 47708/08 (ECtHR, 20 November 2014) para 153. 

75 

76  Loizidou (Merits) (n 45). 
77  Cyprus v Turkey (n 4). 
78  De Schutter (n 20) 218. 

 
 
 
 
 
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territory'.79 To support this proposition, they cite Azemi v Serbia, which dealt 
with  Serbia's  responsibility  for  the  non-enforcement  of  a  Kosovar  court's 
judgment.  The  Court  declared  the  application  inadmissible  ratione  personae 
for  the  unrelated  reason  that  the  applicant  failed  to  challenge  a  'particular 
action or inaction' of Serbia.80   

Even  if  Azemi  is  considered  to  be  authority  that  Serbia's  jurisdiction  over 
Kosovo  has  been  eliminated,  this  does  not  disprove  the  absolute 
presumption that a sovereign State retains jurisdiction over the whole of its 
de  jure  territory.  Istrefi  has  argued  that,  while  falling  short  of  recognising 
Kosovo's  sovereignty,  Azemi  has  created  a  'presumption  of  neutrality'  over 
the  territory  in  question,  thereby  implicitly  recognising  that  Serbia  had 
ceased to be the lawful sovereign.81 This would distinguish the present case 
from  Ilascu  and  would  explain  the  ECtHR's  decision.  Indicative  of  this 
underlying influence in the Court's reasoning is the reference to the applicant 
as 'a national of Kosovo'.82 This may be contrasted with the Court's reference 
to the applicants in Behrami and Behrami v France as residents of 'Mitrovica in 
Kosovo, Republic of Serbia'.83  

It is argued that the loss of sovereignty is the only 'exceptional circumstance' 
where  the  Court  will  disapply  the  positive  presumption  that  the  State  will 
retain  jurisdiction  over  the  whole  of  its  de  jure  territory.  In  any  other 
constraining  factual  situation,  the  Court  will  merely  'limit'  the  positive 
presumption.84 In this case, the respondent State would retain jurisdiction by 
virtue of its sovereign title but  would only owe positive obligations to take 
measures  within  its  power  to  secure  the  enjoyment  of  human  rights  in  the 
relevant territory.85  

79  Bernadette  Rainey,  Elizabeth  Wicks  and  Clare  Ovey,  Jacobs  White  &  Ovey:  The 
European Convention on Human Rights (7th edn, Oxford University Press 2017) 101. 

80  App no 11209/09 (ECtHR, 5 November 2013) para 47. 
81  Kushtrim Istrefi, 'Azemi v Serbia: Discontinuity of Serbia's de jure Jurisdiction over 

Kosovo' (2014) 4 European Human Rights Law Review 388, 393. 

82  Azemi (n 80) para 1.  
83  App no 71412/01 (ECtHR, 2 May 2007) para 1. 
84 

85 

Ilascu (n 26) paras 312-313. 
Samantha Besson, 'Concurrent Responsibilities under the European Convention 
on  Human  Rights:  The  Concurrence  of  Human  Rights  Jurisdiction,  Duties  and 

 
 
 
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One should also briefly mention the personal model. It is argued that, in Al-
Skeini,86 the victims were also, theoretically, within the jurisdiction of Iraq as 
the  territorial  State.  However,  Iraq  is  not  a  party  to  the  Convention. 
Therefore,  the  ECtHR  rightly  refrained  from  giving  judgment  on  Iraq's 
obligations.87   

The above analysis reveals that the positive presumption that the sovereign 
State will retain jurisdiction throughout the whole of its lawful territory will 
not be rebutted unless sovereign title to that territory is lost. Therefore, cases 
of  extraterritoriality  should  always  engage  the  concurrent  responsibility  of 
the State on whose territory the violation occurs, as well as the State which 
establishes  extraterritorial  de  facto  jurisdiction.  Judge  Yudkivska  has  given 
support to the aforementioned proposition by arguing, both extrajudicially88 
and in her Concurring Opinion in Sargsyan,89 that concurrent jurisdiction in 
cases concerning extraterritoriality is now the norm. 

IV. EXTRATERRITORIALITY AS 'CONCURRENT AND TAILORED' 
RESPONSIBILITY UNDER ARTICLE 1 ECHR 

Having established that concurrent jurisdiction should be triggered in cases 
of  extraterritoriality  and  that  concurrent  responsibility  could  arise,  it  is 
necessary  to  examine  the  doctrinal  tools  used  to  tailor  each  State's 
responsibility.  This  analysis  is  based  on  two  key  distinctions:  (i)  between 
positive  and  negative  obligations  under  the  ECHR  and  (ii)  responsibility 
arising from territorial and non-territorial situations.  

Responsibilities'  in  Anne  Van  Aaken  and  Iulia  Motoc  (eds),  The  European 
Convention on Human Rights and International Law (Oxford University Press 2018) 
161. 

86  Al-Skeini (n 9). 
87  Maarten  Den  Heijer,  'Procedural  Aspects  of  Shared  Responsibility  in  the 
European  Court  of  Human  Rights'  (2013)  4  Journal  of  International  Dispute 
Settlement 361, 373. 
88  Ganna  Yudkivska, 

'Territorial  Jurisdiction  and  Positive  Obligations  of  an 
Occupied  State:  Some  Reflections  on  Evolving  Issues  Under  Article  1  of  the 
European  Convention'  in  Anne  Van  Aaken  and  Iulia  Motoc  (eds),  The  European 
Convention on Human Rights and International Law (Oxford University Press 2018). 
Sargsyan (n 56). 

89 

 
 
 
 
 
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1. Positive and Negative Obligations  

Article 1 ECHR imposes an 'obligation to secure' the Convention rights on 
Convention  States.  Implicit  in  the  wording  are  two  types  of  obligations: 
negative obligations and positive obligations.90 

Negative  obligations  are  the  State's  obligations  to  respect  the  rights  of 
persons  within  its  jurisdiction.  This  requires  State  agents  to  refrain  from 
interfering  with  individuals'  enjoyment  of  their  Convention  rights.91 
Negative  obligations  are  breached  through  the  actions  of  State  organs. 
Therefore,  the  standard  applied  when  assessing  this  breach  is  one  of  strict 
liability  because  a  State  is  presumed  to  have  absolute  control  over  its  own 
organs.92 There is no support in the jurisprudence for a tailored approach to 
determining the extent of negative obligations.93 Therefore, upon the finding 
of  a  violation,  the  responsibility  imposed  on  the  respondent  State  is 
standardised. 

Conversely,  positive  obligations  are  obligations  'to  adopt  reasonable  […] 
measures  to  protect  the  rights  of  individuals'.94  Such  obligations  require 
respondent  States  to  act  in  order  to  safeguard  human  rights  within  their 
jurisdiction. This includes an obligation to prevent human rights violations 
committed by private actors.95  

The  ECtHR  has  held  that  the  scope  of  substantive  positive  obligations 
('positive  obligations')  is  determined  according  to  the  standard  of  due 
diligence (i.e. what can reasonably be expected from a diligent State in the 
circumstances),96  even  though  it  did  not  explicitly  use  this  term.97  Hence, 

90  Dinah  Shelton  and  Ariel  Gould,  'Positive  and  Negative  Obligations'  in  Dinah 
Shelton  (ed),  Oxford  Handbook  of  International  Human  Rights  Law  (Oxford 
University Press 2013) 569. 
Jean-François Akandji-Kombe, Positive Obligations under the European Convention on 
Human Rights (Council of Europe 2007) 11. 

91 

92  William Schabas, The European Convention on Human Rights: A Commentary (Oxford 

University Press 2015) 101. 

93  Banković (n 2) para 75. 
94  Akandji-Kombe (n 91) 7. 
95 

Shelton and Gould (n 90) 563. 
Ibid 577. 

96 

97  Osman (n 21) para 116; Tzevelekos (n 44) 133. 

 
 
 
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whether the State has discharged its positive obligation will be 'subjectively' 
tailored  according  to  its  ability  to  secure  Convention  rights  through  the 
prevention of the relevant violations.98 Positive obligations could therefore 
impose 'obligations of conduct',99 which may be discharged when the State 
takes the necessary measures towards achieving a result, even if that result is 
not attained.100 Such tailored obligations will, in case of a breach, give rise to 
a similarly tailored responsibility.  

The  extent  of  the  positive  obligation  of  the  notional  diligent  State  is 
determined according to the degree of control exercised by the respondent 
State over the situation which leads to the violation. In assessing the relevant 
level of control, it is suggested that the Court should take into account factors 
such  as  the  State's  relationship  with  the  perpetrators  of  the  violation,  the 
State's  ability  to  assert  its  authority  over  the  relevant  situation,  and  the 
measures  which  it  could  have  taken  to  alleviate  the  damage  done  to  the 
victim. An equivalent analysis is implicitly employed by the Court to mitigate 
the  positive  obligations  owed  by  respondent  States  in  accordance  with  a 
'constraining de facto situation'.101 

The Court has refused to draw a clear distinction between the two types of 
obligations, stating that:  

The boundaries between the State's positive and negative obligations […] do 
not  lend  themselves  to  precise  definition.  The  applicable  principles  are 
nonetheless similar.102 

98 

Ilascu (n 26) para 313; See also Christos Rozakis, 'The Territorial Scope of Human 
Rights Obligations: The Case of the European Convention on Human Rights' in 
The Status of International Treaties on Human Rights (Council of Europe 2005) 70. 
99  Application of the Convention on the Prevention and Punishment of the Crime of Genocide 
("Bosnian Genocide Case") (Bosnia and Herzegovina v. Serbia and Montenegro) [2007] 
ICJ Rep 43, para 430. 

100  Timo  Koivurova,  'Due  Diligence',  Max  Planck  Encyclopedia  of  Public  International 

Law (2010) paras 1-3. 
Ilascu (n 26) para 333. 

101 

102  Joannou v Turkey App no 53240/14 (ECtHR, 12 December 2017) para 89. 

 
 
 
 
 
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However,  as  is  evident  from  the  above  analysis,  one  cannot  argue  that  the 
principles governing the two types of obligations are analogous.103 Therefore, 
the Court should distinguish between negative and positive obligations.  

The  basis  of  the  aforementioned  dichotomy  lies  in  the  concept  of 
attribution. Negative obligations can only be engaged when the violating acts 
are  attributable  to  the  State  (i.e.  committed  by  State  agents).  Conversely, 
positive  obligations  are  breached  by  the  omission  of  State  authorities  to 
prevent  a  violation  within  the  State's  jurisdiction.  Therefore,  positive 
obligations  to  protect  are  engaged  when  the  perpetrating  conduct  is 
committed by actors which are not attributable to the State when committing 
these acts.  

2. Remedying a Conceptual Paradox 

Usually,  whether  the  State  is  in  breach  of  its  positive  or  its  negative 
obligations  is  clear.  However,  in  cases  of  extraterritoriality,  it  may  not  be 
clear  whether the perpetrators' actions are imputable  to  the  State  through 
the application of ARSIWA (e.g. are the actions of the local administration 
of the 'MRT' attributable to Russia?).  

This is problematic. Whether there is a violation by the State will depend on 
whether  the  obligation  is  positive  or  negative.  The  former  imposes  a  due 
diligence  standard  on  the  State,  whereas  the  latter  imposes  strict  liability. 
However,  whether  an  obligation  is  positive  or  negative  can  only  be 
determined  retrospectively,  after  identifying  whether  the  violating  actions 
are  imputable  to  the  respondent  State.  Thus,  the  Court  cannot  apply  the 
classic sequence of identifying a primary breach of an international obligation 
followed by an application of the secondary rules on attribution. Instead, the 
Court should determine whether the relevant conduct is attributable to the 
State  and  then  establish  whether  that  State  has  violated  its  primary 
obligations depending on whether these are positive or negative.  

3. Responsibility under the Personal Model 

The personal model of establishing extraterritorial jurisdiction applies when 
agents attributable to the respondent State (i.e. State agents) operate outside 

103  Tzevelekos (n 44) 152-157. 

 
 
 
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the  territory  of  their  State.  In  this  rubric,  extraterritorial  jurisdiction 
emanates  from  control  over  the  victim  and  is  therefore  non-territorial. 
Having established that Al-Skeini permits a tailoring of the State's obligations 
(and consequent responsibility) in such cases, it is necessary to examine how 
this adjustment should occur.104 

Given the non-territorial nature of the jurisdiction in question, it is argued 
that  the  State's  extraterritorial  responsibility  should  be  limited  in  three 
respects:  (i)  the  obligations  should  only  be  owed  to  persons  under  the 
authority of State agents; (ii) the obligations should only be owed in relation 
to  the  rights  relevant  to  the  situation;  and  (iii)  the  extent  of  the  positive 
obligations owed should depend on the State's ability to secure the relevant 
rights on the facts of each case.105 Therefore, the responsibility imposed on 
the  respondent  State  will  be  tailored  according  to  its  ability  to  secure  the 
Convention rights.  

Limitation (i) follows from the fact that, on the personal model, only certain 
individuals  will  be  brought  within  the  State's  jurisdiction.  Limitation  (ii)  is 
evident  in  Al-Skeini,  where  the  Court  held  that  the  UK  would  only  be 
responsible  for  the  rights  'that  are  relevant  to  the  situation  of  that 
individual'.106 Limitation (iii) arises because the extent of positive obligations 
is determined according to what can reasonably be expected from a diligent 
State  in  the  circumstances.  It  is  argued  that  positive  obligations  may,  in 
principle,  be  imposed  on  the  respondent  State  which  exercises  personal 
extraterritorial jurisdiction. However, it is likely that these obligations will be 
mitigated because a diligent State can do very little to ensure the enjoyment 
of  Convention  rights  without  a  governmental  apparatus  in  the  territory.107 
For example, one cannot expect State agents operating extraterritorially to 
secure  the  applicant's  right  to  a  fair  trial  (Article  6  ECHR),  absent  an 
'impartial tribunal' in the relevant territory.108  

104  Al-Skeini (n 9) para 137. 
105  King (n 29) 538. 
106  Al-Skeini (n 9) para 137. 
107  Cf. Milanovic (n 39) 210 who argues that positive obligations should not arise at all 
unless  the  State's  extraterritorial  jurisdiction  is  established  on  the  basis  of 
territorial control. 

108  King (n 29) 540. 

 
 
 
 
 
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This  tailored  responsibility  of  the  State  acting  extraterritorially 
is 
supplemented with that of the State on whose territory the violation occurs. 
As established above, the de jure territorial State will retain jurisdiction over 
the  applicant.  As  with  all  situations  within  its  territory,  the  State  will  be 
responsible  for  'securing'  the  Convention  rights  in  toto.  Therefore,  in 
principle, it will owe both positive and negative duties to individuals within 
its jurisdiction. 

The territorial State's obligations will also be commensurate to its ability to 
secure  the  Convention  rights.  If  its  agents  did  not  participate  in  the 
infringement  of  the  applicant's  rights,  the  violating  conduct  cannot  be 
attributed  to  the  territorial  State.  This  should  only  engage  this  State's 
positive  obligations  to  prevent  violations.  Therefore,  the  extent  of  these 
obligations will depend on the degree of control exercised by the territorial 
State over the situation which gave rise to the violation.109  

4. Responsibility under the Spatial Model 

When  a  State  exercises  extraterritorial  jurisdiction  based  on  its  de  facto 
control  over  territory  (i.e.  the  spatial  model),  it  will  be  obliged  'to  secure, 
within the area under its control, the entire range of substantive rights set out in 
the  Convention'.110  The  State,  whose  jurisdiction  is  'territorial-based',  will 
owe both positive and negative obligations under Article 1 ECHR.111 When 
the respondent State's agents commit human rights violations in a territory 
over  which  it  has  factual  control,  that  State  is  in  breach  of  its  negative 
obligations because the  impugned conduct is attributable to it by virtue of 
Article  4  ARSIWA.  Therefore,  the  ensuing  responsibility  is  'standardised' 
and cannot be tailored.  

It  is  unclear  whether  the  actions  of  the  subordinate  local  administration 
(which  is  often  created  where  extraterritorial  jurisdiction  is  established  on 
the  spatial  model)  should  be  imputed  to  the  respondent  State.  A  starting 
point is the Cyprus v Turkey judgment. The Grand Chamber held:  

109  Tzevelekos (n 44) 162. 
110  Al-Skeini (n 9) para 138 [emphasis added]. 
111  King (n 29) 542. In this respect, it is immaterial whether jurisdiction emanates from 
the respondent State's sovereign right or its factual control over the territory. 

 
 
 
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Having  effective  overall  control  over  northern  Cyprus,  [Turkey's] 
responsibility cannot be confined to the acts of its own soldiers or officials in 
northern Cyprus but must also be engaged by virtue of the acts of the local 
administration  which  survives  by  virtue  of  Turkish  military  and  other 
support.112 

The Court uses the obscure term 'responsibility engaged'. It does not specify 
how  Turkey's  responsibility  arises.  This  uncertainty  is  exacerbated  as  the 
Court  continues  by  stating  that  the  acts  of  private  individuals  may  also 
'engage  that  State's  responsibility'.113  Given  that  the  actions  of  private 
individuals  can  only  engage  Turkey's  positive  obligations  to  prevent  a 
violation,  this  indicates  that  the  cited  paragraph  could  encompass 
responsibility arising out of a breach of both Turkey's negative and its positive 
obligations. The interpretations open to the Court are considered in turn. 

On one interpretation, the Court may be stating that Turkey is responsible 
for the actions of its own agents and for the actions of the local administration 
under Article 4 ARSIWA. There are two objections to this interpretation. 
Primarily, this would mean that the actions of the local administration would 
always engage Turkey's negative obligations. In case of violation, this would 
lead  to 
'standardised  responsibility',  thereby  precluding  any  tailored 
approach.  Secondly,  the  actions  of  the  'TRNC'  administration  would 
probably  not  be  attributable  to  Turkey  under  Article  4  ARSIWA.  This  is 
because the administration is not a State organ under Turkey's internal law.114 
Furthermore,  it  is  unlikely  that  the  'TRNC'  administration  will  satisfy  the 
high  threshold  of  'complete  dependence'  which  is  required  in  order  to  be 
attributed to Turkey as a de facto State organ.115 Even if the 'TRNC' is held to 
be 'completely dependent' on Turkey, attribution under Article 4 ARSIWA 
cannot  be  convincingly  applied  across  all  cases  of  extraterritoriality.  For 
example,  it  would  be  fictitious  to  view  the  agents  of  the 
'MRT' 
administration  as  Russian  State  organs  given  the  lesser  degree  of  control 
exercised by Russia.116 Indicative of this is Catan v Moldova and Russia, where 
the 'MRT' administration shut down schools which used the Latin alphabet, 

112  Cyprus v Turkey (n 4) para 77. 
113 

Ibid para 81. 

114  Bosnian Genocide (n 99) para 388. 
115 

Ibid paras 392-394. 
116  Berkes (n 74) 415.  

 
 
 
 
 
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despite  Russian  efforts  to  the  contrary.117  Therefore,  due  to  the  internal 
incoherence  which  this  approach  would  create  within  the 
law  of 
extraterritoriality, it should be rejected. 

On an alternative interpretation, the actions of Turkey's State organs and the 
'TRNC'  administration  may,  once  again,  both  be  attributable  to  Turkey. 
However,  the  acts  of  the  local  administration  may  be  so  attributed  under 
Article 8 ARSIWA if it is subject to the 'direction and effective control'118 of 
Turkey.  In  the  Bosnian  Genocide  Case,  the  International  Court  of  Justice 
('ICJ') confirmed that effective control must be exercised 'in respect of each 
operation in which the alleged violations occurred, not generally in respect of 
the  overall  actions  taken'.119  This  indicates  the  difficulty  of  successfully 
invoking Article 8 ARSIWA.  

In stark contrast, the ECtHR has held that: 

It  is  not  necessary  to  determine  whether  […]  Turkey  actually  exercises 
detailed  control  over  the  policies  and  actions  of  the  authorities  of  the 
'TRNC'. It is obvious  [...] that her army exercises effective overall control 
over that part of the island. Such control […] entails her responsibility for the 
policies and actions of the 'TRNC'.120 

This  different  approach  by  the  ECtHR  may  indicate  that  it  is  adopting  a 
lower threshold for attribution which is sui generis to the ECHR. However, 
the Court has maintained that it is applying the public international law rules 
of State responsibility.121 

A further objection to the lax approach to Article 8 ARSIWA is that it would 
lead  to  internal  incoherence  within  the  law  of  extraterritoriality.  This  is 
because  the  issue  of  attribution  arises  at  two  stages  when  determining 
extraterritorial responsibility. First, a finding of extraterritorial jurisdiction 
is usually premised on the operation of agents attributable to the State outside 
its territory.122 The imputability of these agents to their State is determined 

117  Chiragov (n 37) para 149. 
118  Tzevelekos  (n  44)  137.  See  also  Military  and  Paramilitary  Activities  in  and  against 

Nicaragua (Nicaragua v USA) [1984] ICJ Rep 392, paras 115-116. 

119  Bosnian Genocide (n 99) paras 396-400.   
120  Loizidou (Merits) (n 45) para 56. 
121 

Ibid para 52.  

122  Milanovic (n 39) 51-52. 

 
 
 
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according to ARSIWA. However, an issue of attribution also arises at a later 
stage, when the Court is considering whether the violating act is attributable 
to the  respondent State.  It is at this  later stage that the Court  purports to 
employ the more lenient approach to attribution.  

This less stringent approach to Article 8 ARSIWA would require the Court 
to apply the same doctrine of attribution at each stage of the assessment, but 
with diverging meanings. This division of attribution would undermine the 
clarity  of  the  law.  Consequently,  it  is  argued  that  the  Loizidou  'effective 
overall control' test should only be read as a test to establish jurisdiction over 
the relevant territory, and not as an alternative to the Bosnian Genocide test of 
attribution.123  

Despite  these  difficulties,  the  Court  appears  to  have  adopted  this 
interpretation,  stating  that  'violations  are  […]  imputable  to  Turkey'.124 
However, the violation would be attributable to the respondent State, even if 
it  arose  from  a  breach  of  a  positive  obligation  by  omitting  to  prevent  the 
actions  of  private  parties.  This  is  because  only  the  respondent  State  owed 
primary  obligations  under  the  ECHR.  The  relevant  question,  which  the 
Court did not answer clearly, was whether the conduct which amounted to the 
violation  was  attributable  to  the  State.  In  light  of  this  uncertainty,  the 
adoption  of  the  aforementioned  interpretation  cannot  be  considered 
unequivocal.125  

The Court should have adopted a different interpretation. The better view is 
that  the  responsibility  of  the  de  facto  controlling  State  (i.e.  the  respondent 
State  with  extraterritorial  de  facto  jurisdiction)  could  be  engaged  either 
through a breach of its negative obligations (due to the acts of its own organs) 
or by virtue of a breach of its positive obligations (by failing to prevent the 
agents of the local administration from committing a violation).126 This is the 
only interpretation open to the Court if it wishes to conform to the principles 
of  public  international  law  as,  on  the  application  of  the  Bosnian  Genocide 

123 

Ibid 49-50. 

124  Manitaras v Turkey App no 54591/00 (ECtHR, 3 June 2008) para 27.  
125  Rick  Lawson,  'Life  after  Banković:  On  the  Extraterritorial  Application  of  the 
ECHR'  in  Alphonsus  Coomans  and  Menno  Kamminga  (eds),  Extraterritorial 
Application of Human Rights Treaties (Intersentia 2004) 99. 

126  Milanovic (n 39) 46-51. 

 
 
 
 
 
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'effective control' test, it is unlikely that the local administration's conduct 
will  be  attributable  to  the  respondent  State.  A  similar  interpretation  was 
endorsed by Judge Ziemele in Chiragov.127  

Given that the obligation binding the respondent State is a positive one, its 
extent  will  vary  according  to  that  State's  factual  control  over  the  relevant 
situation. In principle, if a considerable degree of control is exercised over the 
impugned conduct, the obligation could be equivalent to that imposed if the 
local administration had been a conventional organ of the respondent State. 
However,  where  the factual control  exercised  by  that State is reduced, the 
Court will be free to impose a mitigated obligation and, if that obligation is 
breached, tailored responsibility. 

In addition to the responsibility of the de facto controlling State, the sovereign 
State retains jurisdiction over the whole of its de jure territory. Consequently, 
any  violation  of  Convention  rights  which  occurs  within  this  territory  also 
engages its own positive obligations under the ECHR, which are tailored to 
the  constraining  factual  circumstances,  provided  its  own  agents  were  not 
involved.128  

The  proposed  approach  is  consistent  with  the  Court's  willingness  to  hold 
Parties to the Convention concurrently responsible for their omissions in the 
face  of  violations  by  private  actors.129  Furthermore,  the  most  recent 
jurisprudence of the Court appears to be moving towards the 'concurrent and 
tailored' model. One such example can be found in the case of Güzelyurtlu v 
Turkey and Cyprus, in which the Grand Chamber held that both Turkey and 
Cyprus had jurisdiction in relation to the investigation of the murder of three 
Turkish  Cypriot  victims,  which  had  occurred  on  territory  controlled  by 
Cyprus.130  As  a  result,  a  positive  obligation  to  carry  out  an  effective 

127  Partly  Concurring,  Partly  Dissenting  Opinion  of  Judge  Ziemele,  Chiragov  (n  37), 
para  12.  However,  Judge  Ziemele  suggested  that  positive  obligations  could  arise 
even  in  the  absence  of  the  respondent  State's  jurisdiction  over  the  territory  in 
question. This is contrary to the wording of Article 1 ECHR. 
Ilascu (n 26) para 333. 

128 

129  Rantsev v Cyprus and Russia App no 25965/04 (ECtHR, 1 July 2010). 
130  App no 36925/07 (ECtHR, 29 January 2019).  

 
 
 
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investigation  under  Article  2  ECHR  was  incumbent  on  both  respondent 
States.  

5. The Problem of 'Extra-extraterritoriality'  

The advocated approach is not without its own difficulties. One problem is 
that of 'extra-extraterritoriality' which may be illustrated by way of example: 
if  an  agent  of  the  'TRNC'  local  administration  commits  a  human  rights 
violation  in  the  UN-administered  buffer  zone,  under  the  proposed  model, 
Turkey would not be held responsible for their conduct.131 This is because, on 
the  orthodox  Bosnian  Genocide  test,  the  actions  of  the  agent  may  not  be 
attributed  to  Turkey.  Therefore,  their  conduct  will  not  extend  Turkey's 
extraterritorial  jurisdiction  further  on  the  personal  model,  as  this  is 
contingent  upon  the  actions  of  an  agent  attributable  to  Turkey.132  This  is 
problematic  because  only  Cyprus  will  be  held  accountable  for  the  agent's 
violation  and it  will only  owe a mitigated positive  obligation to  the victim. 
Therefore, the applicant's protection under the ECHR will be compromised.  

In dealing with the above scenario in Isaak v Turkey (Admissibility Decision), 
the ECtHR held that violations committed by Turkish and 'TRNC' agents 
in the buffer zone could extend Turkey's jurisdiction by bringing the victim 
within the authority and control of Turkey.133 The Court did not distinguish 
between the two types of agents. This suggests that the 'TRNC' agents were 
attributable  to  Turkey  and  could,  therefore,  extend  the  scope  of  its 
jurisdiction. 

To  reconcile  Isaak  with  the  proposed  model,  the  Court  could  introduce  a 
presumption that the actions of the local administration are imputable to the 
de  facto  controlling  State.  This  would  enable  the  Court  to  extend  Turkey's 
extraterritorial 
jurisdiction,  while  remaining  consistent  with  public 
international  law.  The  presumption  should  arise  in  all  cases  where  the 
applicant  proves  spatial  extraterritorial  jurisdiction.  In  order  to  rebut  this 
presumption,  the  ECtHR  should  require  that  the  respondent  State  prove 
that  the  specific  actions  of  the  local  administration's  agents  cannot  be 

131  This territory is not under the 'effective overall control' of Turkey. 
132  Al-Skeini (n 9) para 133. 
133  App no 44587/98 (ECtHR, 28 September 2006) 20-21. 

 
 
 
 
 
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attributed to it under the Bosnian Genocide 'effective control' test. Where the 
respondent State's spatial jurisdiction is established and the presumption is 
rebutted, the Court will be able to fall back on the tailored approach outlined 
above. The Court could apply this presumption flexibly in order to reach a 
just result on the facts of each case.134  

This  presumption  is  justified  both  practically  and  theoretically.  On  a 
practical  level,  imposing  the  burden  of  proof  on  the  respondent  State  is 
warranted  because  the  respondent  State  should  be  better  able  to  access 
evidence in the possession of the subordinate local administration. The shift 
of the burden of proof may also be explained on three theoretical grounds. 
Primarily, upon establishing extraterritorial jurisdiction, the Court invariably 
finds that the support given by the respondent State is a  'but-for' cause for 
local  administration.135  Hence,  this 
the  continuing  existence  of  the 
connection between the agent of the local administration and the respondent 
State  justifies  imposing  the  burden  of  proof  on  the  latter.  Secondly,  this 
proposition is not a presumption of liability. The presumption is in favour of 
finding  jurisdiction.  It  is  still  open  to  the  respondent  State  to  rebut  the 
presumption  or  to  argue  that  it  has  discharged  its  obligations.  Finally,  the 
proposed presumption will prevent signatory States from laundering human 
rights  violations  by  refracting  them  through  various  legally  void  situations. 
Therefore, the State will be universally accountable for violations to which it 
is connected. This is consistent with the aim of filling the 'vacuum'.  

V. EVALUATING 'CONCURRENT AND TAILORED' RESPONSIBILITY IN 
CONTEXT 

1. Tailored Responsibility rather than Tailored Jurisdiction  

De Schutter has argued that jurisdiction, rather than responsibility, should 
be  tailored  according  to  the  respondent  State's  ability  to  secure  the 

134  See Isaak v Turkey App no 44587/98 (ECtHR, 24 June 2008) paras 107-108 which 
indicates  that  the  ECtHR  is  willing  to  manipulate  the  burden  of  proof  when 
establishing whether a violation has occurred. 

135  Catan (n 36) para 111. 

 
 
 
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enjoyment of the Convention rights.136 In support of this relative concept of 
jurisdiction he cites Ilascu:  

Nevertheless, such a factual situation reduces the scope of that jurisdiction in 
that the undertaking given by the State under Article 1 must be considered 
by the Court only in the light of the Contracting State's positive obligations 
towards persons within its territory.137 

It  is  argued  that  responsibility  is  a  more  appropriate  stage  at  which  to 
introduce flexibility. First, the orthodox view is that jurisdiction is a binary 
threshold.138 Secondly, the flawed logic in the aforementioned statement is 
evident. Jurisdiction cannot be 'considered […] in […] light of the […] State's 
[…] positive obligations' because, prior to establishing jurisdiction, no such 
obligations exist.139 For this reason, it is preferable to use responsibility as the 
conceptual  stage  at  which  flexibility  can  be  incorporated.  The  Court  has 
recently acknowledged that a restrictive factual situation will limit the State's 
responsibility and not its jurisdiction.140 

2. Does the Model Remedy the 'Vacuum' Concern? 

As suggested, the jurisprudence on extraterritoriality developed in order to 
avoid a 'vacuum' in the European human rights regime. It is argued that the 
advocated  model  effectively  addresses  this  concern.  According  to  the 
proposed  model,  the  de  jure  sovereign  State  retains  jurisdiction  over  its 
territory and is therefore obliged to secure all the Convention rights therein. 
Hence,  when  the  victim  is  within  the  éspace  juridique  of  the  Convention,141 
they will, at least, have the full protection of the Convention, as guaranteed 
by the de jure territorial State. 

3. The Doctrinal Advantages of 'Concurrent and Tailored' Responsibility  

The  proposed  approach  should  give  rise  to  various  doctrinal  advantages 
which  contribute  to  the  creation  of  a  principled  approach  to  the  law  of 

136  De Schutter (n 20) 222. 
137 

Ilascu (n 26) para 333 [emphasis added]. 

138  Besson (n 1) 878. 
139 

Issa v Turkey App no 31821/96 (ECtHR, 16 November 2004) para 66.  

140  Sargsyan (n 56) paras 139-140. 
141  Banković (n 2) para 80. 

 
 
 
 
 
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extraterritoriality.  Primarily,  adopting a  'concurrent and tailored'  model  of 
State responsibility will align the ECtHR jurisprudence on extraterritoriality 
with  related  concepts  of  public  international  law.  As  argued,  the  proposed 
interpretation of the case law will align the Court's approach to attribution 
with the ICJ jurisprudence. Furthermore, tailored obligations are imposed in 
related fields of international law. Under the law of occupation, which may 
impose  parallel  obligations  to  the  ECHR,142  Article  43  of  the  Hague 
Regulations Respecting the Laws and Customs of War on Land will impose 
a tailored obligation on the occupying State in relation to the governing of 
the  occupied  territory.143  Given  that  extraterritorial  obligations  under  the 
ECHR may arise even when the respondent State exercises a lower level of 
territorial  control  than  an  occupying  State  (e.g.  Russia  over  the  'MRT'),  it 
would  be  counterintuitive  to  impose  more  onerous  obligations  on  the 
respondent State under the ECHR. Therefore, imposing tailored obligations 
under  the  ECHR  on  States  exercising  extraterritorial  jurisdiction  will  be 
consistent with those States' parallel obligations in public international law.  

the 

law  of  extraterritoriality  by  aligning  the  case 

The advocated model will also enable the Court to achieve internal coherence 
within  the 
law  on 
extraterritoriality  with 
'pseudo-extraterritorial'  cases  on  non-
refoulement.144  While  these  cases  are,  strictly  speaking,  not  extraterritorial 
because the violations occur within the territory of the extraditing State, the 
Court  has  consistently  treated  them  as  being  part  of  the 
law  of 
extraterritoriality.145  An  example  can  be  found  in  Loizidou  (Preliminary 
Objections),146 which cites Soering v UK as authority that jurisdiction can be 
extended extraterritorially.147 

In  extradition  cases,  the  Court  has  also  applied  a  model  of  concurrent 
responsibility. Under the Court's approach, the State to which the applicant 

142  Schabas (n 92) 102. 
143  Convention  concerning  the  Laws  and  Customs  of  War  on  Land  and  its  Annex: 
Regulations Respecting the Laws and Customs of War on Land (entered into force 
26 January 1910) [1910] UKTS 10. 

144  Tzevelekos (n 44) 157. 
145  Maarten Den Heijer, 'Shared Responsibility before the European Court of Human 

Rights' (2013) 6 Netherlands International Law Review 411, 423. 

146  Loizidou (Preliminary Objections) (n 32) paras 61-62. 
147  App no 14038/88 (ECtHR, 7 July 1989). 

 
 
 
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is  being  extradited  will  be  liable  regarding  any  violation  of  human  rights 
which  occurs  on  its  territory.  The  extraditing  State  has  an  independent 
obligation  not  to  extradite  to  a  place  where  there  is  a  'real  risk'  that  the 
individual's Convention rights will be infringed.148 This latter obligation is a 
positive one which requires the extraditing State to prevent violations by a 
third  State.149  Therefore,  a  due  diligence  standard  should  be  applied.150 
Illustrative of this line of cases is M.S.S. v Belgium and Greece.151 In this case, 
Greece, to which the victim was extradited, was found to be in violation of 
the  applicant's  rights  under  Article  3  ECHR.  Moreover,  Belgium,  as  the 
expelling State, was also held responsible for the violation of Article 3 because 
its authorities were aware of the risks of degrading treatment posed by the 
Greek asylum procedure and knowingly exposed the victim to these risks.152 
The  similarities  with  the  proposed  approach  to  extraterritoriality  are 
evident. Both lines of cases give rise to concurrent responsibility and both use 
a  subjective  notion  of  State  fault  in  order  to  determine  the  extent  of 
responsibility.  

4.  'Concurrent  and  Tailored'  Responsibility  May  Provide  More  Comprehensive 
Protection 

The  recognition  of  de  facto  and  de  jure  jurisdiction  under  Article  1  ECHR 
could  provide  more  comprehensive  protection  for  the  applicant's 
Convention  rights.  This  may  be  illustrated  through  an  example.  Take  the 
facts  of  Loizidou,  where  the  applicant  was  denied  access  to  her  property, 
which was located in the 'TRNC'.153 It is clear that the applicant has a claim 
against Turkey for the loss of use of her property under Article 1 Protocol 1 
ECHR. This is because Turkey's unlawful actions led to an interference with 
the applicant's rights in fact. Consider the following scenario. The banks in 
the Republic of Cyprus prevent the applicant from taking out a mortgage on 
the  legal  title  of  her  property.  The  interference  with  the  applicant's  rights 
operates  purely  on  the  legal  title  to  the  property.  This  legal  title  is  not 

148 

Ibid paras 85-91. 

149  Den Heijer (n 145) 422-423. 
150  Tzevelekos (n 44) 160. 
151  App no 30696/0 (ECtHR, 21 January 2011). 
152 

Ibid paras 362-368. 
153  Loizidou (Merits) (n 45). 

 
 
 
 
 
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recognised by Turkey. It would therefore be odd to make Turkey liable for 
an interference that operates purely at the level of the legal title, which exists 
by virtue of the State apparatus of the Republic of Cyprus. Recognising the 
de  jure  jurisdiction  of  Cyprus  over  the  territory  of  the  'TRNC',  where  the 
property is located, would mean that Cyprus would be subject to a positive 
obligation  to  ensure  that  the  applicant  is  allowed  to  take  advantage  of  the 
legal title to her property. This will, in turn, ensure that the applicant could 
have an effective remedy for interferences with her Convention rights which 
occur purely on the legal plane. 

5. A Practical Obstacle to 'Concurrent and Tailored' Responsibility? 

One  may  argue  that  recognising  concurrent  jurisdiction  of  Contracting 
Parties  would  require  the  applicant  to  exhaust  domestic  remedies  in  both 
jurisdictions  prior  to  bringing  a  claim  before  the  ECtHR.154  Such  a 
requirement  would  increase  the  procedural  burden  on  the  applicant  and 
would render the possibility of launching a claim against two States merely 
theoretical.  It  is  argued  that  the  applicant  should  only  have  to  exhaust 
domestic  remedies  in  one  of  the  two  jurisdictions  to  render  their  claim 
admissible against both States. This is controversial. Nevertheless, the Court 
has applied this admissibility requirement  'tak[ing] realistic account of the 
general legal and political context in which the remedies operate, as well as 
the  personal  circumstances  of  the  applicant'.155  Moreover,  it  has  indicated 
that, when an applicant brings concurrent claims against two States, it will 
accept that domestic remedies should only be exhausted in one jurisdiction, 
at  least  in  cases  where  the  authorities  in  the  other  jurisdiction  had  the 
opportunity  to  remedy  the  alleged  violation  but  failed  to  do  so.156  This 
'relaxed approach' to the non-exhaustion of municipal remedies extends to 
extraterritorial cases.157  

154  Article 35 ECHR. 
155  Akdivar v Turkey App no 21893/93 (ECtHR, 16 September 1996) para 69. 
156  Güzelyurtlu v Cyprus and Turkey App no 36925/07 (ECtHR, 4 April 2017) paras 197-

201. 

157  Marko  Milanovic,  'The  Nagorno-Karabakh  Cases'  (EJIL:  Talk!,  23  June  2015) 

<www.ejiltalk.org/the-nagorno-karabakh-cases/> accessed 24 March 2018. 

 
 
 
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6. 'Concurrent and Tailored' Responsibility as a Political Compromise 

While  the  above  analysis  is  primarily  doctrinal,  the  politically  contentious 
nature of the law of extraterritoriality requires that we consider the political 
ramifications  of  the  'concurrent  and  tailored'  model  of  responsibility.  The 
extraterritorial  application  of  the  Convention  has  generated  political 
resistance in various respondent States. This resistance has included refusals 
by respondent States to execute the judgments of the ECtHR,158 as well as 
calls to invoke Article 15 ECHR.159 

It  is  argued  that  the  proposed  model  presents  an  opportunity  for  a  new 
political compromise regarding the extraterritorial application of the ECHR. 
First, the model provides a doctrinal framework that allows the respondent 
State,  which  is  acting  extraterritorially,  to  challenge  the  extent  of  its 
obligations. This differs from the Court's current approach, which does not 
clearly delimit the scope of these obligations. Under the current approach, a 
respondent  State  would  have  to  challenge  the  applicant's  claim  by  alleging 
that  it  lacks  jurisdiction.  If  this  challenge  fails,  then  the  obligations 
incumbent  on  the  State  would  be  'standardised'.  This  would  impose  a 
disproportionate  burden  on  the  State  which  would  foster  resistance. 
Conversely,  the  'concurrent  and  tailored'  model  would  allow  a  respondent 
State to launch an additional challenge against such claims by arguing that its 
obligations are mitigated due to the constraining circumstances of the case. 
This  would  enable  the  Court  to  continue  to  develop  the 
law  of 
extraterritoriality,  extending  the  jurisdiction  of  Contracting  Parties  under 
Article 1 ECHR in pursuit of according universal protection for Convention 
rights.  The  tailored  nature  of  the  obligations  would  ensure  that  this 
expansion  of  jurisdiction  will  not  subject  respondent  States  to  obligations 
which would be impossible to discharge.  

Secondly, a respondent State which retains its intra-territorial jurisdiction is 
likely to accept its potential responsibility under the proposed model for two 
reasons. First, the obligations incumbent on such States would be mitigated 

158 

Interim  Resolution  CM/ResDH(2014)185  'Execution  of  the  judgments  of  the 
European  Court  of  Human  Rights  in  the  cases  Varnava, Xenides-Arestis  and  32 
other cases against Turkey' (25 September 2014). 

159  Richard  Ekins,  Jonathan  Morgan  and  Tom  Tugendhat,  Clearing  the  Fog  of  Law: 
Saving Our Armed Forces from Defeat by Judicial Diktat (Policy Exchange 2015) 8.  

 
 
 
 
 
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Reconceptualising Extraterritoriality under the ECHR 

193 

and  can  therefore  be  discharged  relatively  easily.  Even  if  the  Court  finds  a 
violation, the responsibility of the State would be tailored, thus facilitating 
the execution of the judgment. Secondly, the 'concurrent and tailored' model 
provides that sovereign legal rights could form the basis for the respondent 
State's  jurisdiction  under  Article  1  ECHR.  Given  that  the  territorial  State 
continues to claim sovereignty over the contested territory, it would probably 
not dispute the Court's finding of jurisdiction. In exchange, the Court will 
reaffirm that the respondent State retains  its sovereignty over the relevant 
territory.   

VI. CONCLUSION 

The need for a creative reassessment of the law of extraterritoriality has been 
acknowledged by senior officials at the Council of Europe.160 It is contended 
that  this  reformulation  must  be  conducted  with  a  view  to  tailoring  State 
obligations and responsibility according to each State's ability to secure the 
Convention  rights  on  the  facts  of  each  case.  This  tailoring  of  State 
responsibility  will  ensure  that  the  Court's  judgment  can  realistically  be 
executed.  This  paper  has  argued  that  a  model  of  'concurrent  and  tailored' 
State  responsibility  should  be  adopted  in  the  case  law  concerning  the 
extraterritorial  application  of  the  ECHR.  This  model  makes  two  novel 
propositions. First, it provides that jurisdiction is a creature of both law and 
fact. Hence, concurrent jurisdiction should be recognised when one State has 
the legal right to regulate the situation in question, whereas another State has 
the  de  facto  ability  to  do  so.  This  occurs  when  one  State  is  acting 
extraterritorially.  Secondly,  the  model  suggests  that  the  obligations  of 
respondent  States  could  be  tailored  by  recognising  that  respondent  States 
will often be subject to positive obligations when acting extraterritorially.  

The  Court  appears  to  be  moving  towards  the  recognition  of  concurrent 
responsibility  by  consistently  holding  that  the  sovereign  State's  intra-
territorial jurisdiction is retained, even in the absence of factual control over 

160 

'Enforcing Strasbourg Court's Judgments concerning the Transnistrian region of 
the  Republic  of  Moldova' 
19  February  2018) 
<www.coe.int/en/web/human-rights-rule-of-law/-/enforcing-strasbourg-court-s-
judgments-concerning-the-transnistrian-region-of-the-republic-of-moldova> 
accessed 25 March 2018. 

(Council  of  Europe, 

 
 
 
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a  given  victim  or  territory.161  The  responsibility  of  the  territorial  State 
therefore operates alongside the responsibility of the State which exercises 
extraterritorial  jurisdiction.  However,  it  is  argued  that  the  Court  should 
explicitly  state  that  concurrent  jurisdiction  and  responsibility  are  now  the 
norm  in  cases  concerning  the  extraterritorial  application  of  the  ECHR. 
Furthermore,  the  Court  is  progressively  realising  the  need  for  a  tailored 
approach to State responsibility, rejecting the old standardised approach to 
State  obligations  under  the  Convention.162  Nevertheless,  the  existing 
jurisprudence is marred by doctrinal uncertainty and does not clearly operate 
in favour of tailoring State obligations and their ensuing responsibility under 
the Convention. As advocated above, the case law may be reinterpreted so 
that  extraterritorial  violations  will  usually  engage  the  respondent  State's 
positive  obligations.  As  stated,  the  extent  of  these  obligations 
is 
commensurate to the State's factual ability to secure Convention rights. It 
has  been  argued  that  positive  obligations  should  therefore  be  used  to 
introduce a tailored approach to State responsibility.  

The  Court  will  have  ample  opportunity  to  reconsider  its  approach  to 
extraterritoriality. In the coming years the extraterritorial application of the 
ECHR  will  become  increasingly  important  as  cases  regarding  Turkey's 
military operations in Syria and Russia's support for separatist regimes in the 
Ukraine  reach  the  ECtHR.163  Therefore,  it  is  imperative  that  the  Court 
develops  a  clear  and  coherent  doctrine  of  extraterritoriality,  which  will 
enable it to fulfil its purpose as the gatekeeper of human rights in Europe. 

161  Sargsyan (n 56) para 130. 
162  Al-Skeini (n 9) para 137; Banković (n 2) para 75. 
163   Mark  Lowen,  'Syria  war:  Turkish-led  forces  oust  Kurdish  fighters  from  heart  of 
Afrin'  (BBC,  18  March  2018)  <www.bbc.com/news/world-middle-east-43447624> 
accessed 25 March 2018;  Ayley and Others v Russia App nos 25714/16 and 56328/18 
(Case Communication, 4 April 2019). 

 
 
 
 
 
 
THE ROLE OF NATIONAL COURTS FOR THE INTERNATIONAL RULE OF 
LAW: INSIGHTS FROM THE FIELD OF MIGRATION 

Pierfrancesco Rossi*  

This paper evaluates the theory that national courts can act as agents for the protection 
of the international rule of law, i.e. the idea that, under certain conditions, national 
courts may compensate for the lack of international mechanisms of law enforcement 
and ensure that their own governments comply with international law. This theory is 
tested against a paradigmatic case study from the field of migration, the Diciotti affair, 
which serves as an example of international law violations caused by governmental 
policies  of  migration  containment.  In  this  incident,  migrants  rescued  at  sea  by  an 
Italian Coast Guard ship were confined onboard for a number of days in apparent 
violation of international legal standards. The breaches of international law  which 
occurred during the incident were at the center of civil and criminal cases before the 
Italian courts. Even though, prima facie, the response of the Italian judiciary would 
appear to be a textbook confirmation of the view of national courts as guardians of the 
international rule of law, the paper argues that the Diciotti affair also suggests that 
caution  is  required  as  regards  the  actual  powers  of  national  courts  to  compel  state 
authorities to respect international law. 

Keywords: international rule of law, national courts, international migration 
law, international law of the sea, international human rights law, migration 
control

* 

Postdoctoral Research Fellow in International Law, Luiss Guido Carli University, 
Rome,  rossip@luiss.it.  An  earlier  version  of  this  paper  was  presented  at  the 
Workshop on 'Migration and the Rule of Law' organized by the European Society 
of International Law (ESIL) Interest Group on Migration and Refugee Law in the 
framework of the ESIL Research Forum on 'The International  Rule of Law and 
Domestic  Dimensions:  Synergies  and  Challenges',  University  of  Göttingen, 
Germany, 3 April 2019. The author is grateful to Kristof Gombeer, Maria Varaki, 
all  the  organizers  and  participants  of  the  Workshop,  and  the  two  anonymous 
referees for their thoughtful comments. All errors remain the author's own. 

EJLS 12(1), April 2020, 195-230 

 doi:10.2924/EJLS.2019.016 

 
 
 
 
 
 
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TABLE OF CONTENTS 

I. INTRODUCTION ................................................................................................ 196 

II. NATIONAL COURTS: AGENTS FOR THE PROTECTION OF THE 

INTERNATIONAL RULE OF LAW? ................................................................ 198 

III. GOVERNMENTAL VIOLATIONS OF INTERNATIONAL MIGRATION LAW: 

THE EXAMPLE OF THE DICIOTTI AFFAIR .................................................... 204 

1. The Diciotti Affair and the International Law of the Sea ................................ 206 

2. The Diciotti Affair and International Human Rights Law .............................. 211 

IV. TESTING THE LIMITS OF GOVERNMENTAL ACCOUNTABILITY BEFORE 

NATIONAL COURTS: LESSONS FROM THE DICIOTTI AFFAIR ..................... 215 

1. The Power of National Courts: International Law as a Limit on Governmental 

Action ...................................................................................................................... 215 

2. The Limits of National Courts: Structural and Functional Obstacles to Holding 

Governments Accountable ..................................................................................... 222 

V. CONCLUSION ................................................................................................... 228 

I. INTRODUCTION 

It  is  frequently  argued  that  national  courts  can  play  a  fundamental  role  in 
supporting  the  international  rule  of  law  (IRL).1  By  providing  remedies  for 
violations of international law committed by the state, they may compensate 
for  the  lack  of  international  mechanisms  of  coercive  enforcement  against 
national authorities and thus fulfill one of the essential requirements of any 
definition  of  rule  of  law:  the  accountability  of  public  authorities  for  their 
breaches of the law.2 

The  field  of  migration  constitutes  an  ideal  testing  ground  for  this  theory. 
Alleging  the  existence  of  supposed  'migration  emergencies',3  the  political 

1 

André  Nollkaemper,  National  Courts  and  the  International  Rule  of  Law  (Oxford 
University Press 2011). For a more thorough review of the relevant literature see 
below Section II. 

2  Martin  Krygier,  'The  Rule  of  Law:  Legality,  Teleology,  Sociology',  in  Gianluigi 
Palombella  and  Neil  Walker  (eds),  Relocating  the  Rule  of  Law  (Hart  Publishing 
2009) 45. 
See  Jaya  Ramji-Nogales,  'The  Role  of  Human  Rights  Law  in  Constructing 
2017) 
Migration 

Emergencies' 

February 

(EJIL: 

Talk!, 

24 

3 

 
 
 
 
 
 
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National Courts and the International Rule of Law 

197 

authorities of a significant number of countries are implementing policies of 
migration  control  in  defiance  of  international  legal  standards  of  migrants' 
protection.4 These standards – collectively termed 'international migration 
law'  –  consist  of  norms  pertaining  to  various  areas  of  international  law, 
including human rights law, humanitarian law, labor law and the law of the 
sea.5  In  such  a  fragmented  legal  landscape,  international  mechanisms 
allowing for an independent ascertainment of state breaches of international 
migration law are scant and sectorial, the most prominent example being, in 
the  field  of  human  rights  law,  the  European  Court  of  Human  Rights 
(ECtHR). Nor do there exist international means of enforcing international 
migration law against unruly national governments. It is therefore natural to 
wonder if national courts may fulfill the role of a systemic force for the IRL 
in  the  field  of  migration,  ensuring  governmental  compliance  with 
international  migration  law  and  even  turning  the  tide  of  weakening 
international legal regimes.6 

Against  this  backdrop,  this  contribution  focuses  on  national  courts' 
responses to breaches of international law caused by governmental policies of 
migration control. It does so primarily through the lens of a case study, the 
2018 Diciotti affair, concerning apparent violations by Italy of international 
migration law following a migrant rescue operation in the Mediterranean Sea. 
This  incident  is  paradigmatic  because  of  the  consequences  such  violations 
entailed before the Italian courts. Not only was a civil action brought against 

<https://www.ejiltalk.org/the-role-of-human-rights-law-in-constructing-
migration-emergencies-esil-blog-symposium/> accessed 16 May 2019; Muhammad 
Shahabuddin, 'Postcolonial Boundaries, International Law, and the Making of the 
Rohingya Crisis in Myanmar' (2019) 9 Asian Journal of International Law 334. 
See  e.g.  Lena  Riemer,  'How  Trump's  Migration  Policy  Erodes  National  and 
International  Standards  of  Protection  for  Migrants  and  Asylum  Seekers'  (EJIL: 
Talk!,  28  November  2018)  <https://www.ejiltalk.org/how-trumps-migration-
policy-erodes-national-and-international-standards-of-protection-for-migrants-
and-asylum-seekers/> accessed 16 May 2019. 
Vincent Chetail, International Migration Law (Oxford University Press 2019) 7-12. 
The role of national courts is crucial even in the strongly integrated context of the 
European Convention on Human Rights: see e.g. Eirik Bjorge, Domestic Application 
of the ECHR: Courts as Faithful Trustees (Oxford University Press 2015). 

4 

5 

6 

 
 
 
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the state by a number of victims, but criminal proceedings were also initiated 
against members of the Italian government.7 

After reviewing the main theoretical approaches to the role of national courts 
in supporting the IRL (section II), this article provides a brief description of 
the facts of the Diciotti affair as well as an analysis of the international legal 
norms that would appear to have been breached during the incident, notably 
in the fields of the law of the sea and human rights law (section III). The focus 
then turns to how the Italian courts reacted to such violations and  to their 
efforts to ensure the executive's accountability, situating these efforts within 
the  broader  framework  of  the  theory  of  national  courts  as  agents  for  the 
promotion of the IRL (section IV). The article concludes by arguing that the 
Diciotti  affair  may  suggest  that  caution  is  required  as  regards  the  actual 
powers  of  domestic  courts  to  compel  state  authorities  to  respect 
international law, in the sense that, in practice, even a fiercely independent 
judiciary may end up being a valuable but imperfect instrument for the IRL 
(section V). 

Of  course,  as  a  matter  of  methodology,  caution  is  due  when  extrapolating 
from a single case. It is not the purpose of this paper to make sweeping or 
conclusive arguments for or against any of the theories put to the test. What 
is  argued  is  merely  that  the  analysis  of  a  concrete  case  may  provide  some 
depth  to  concepts  which  are  often  posited  at  a  higher  level  of  abstraction, 
revealing both strengths and shortcomings of the capacity of national courts 
to review governmental acts violating international law. And while, as will be 
shown,  some  features  of  the  Diciotti  affair  are  closely  dependent  on  the 
characteristics of the European and the Italian legal settings, other features 
arguably exemplify difficulties that any independent judiciary may encounter 
when attempting to enforce international law against its own government. 

II. NATIONAL COURTS: AGENTS FOR THE PROTECTION OF THE 
INTERNATIONAL RULE OF LAW? 

The idea that national courts may serve as agents of the international legal 
order  finds  its  roots  in  the  thought  of  George  Scelle.  Given  the  lack  of 
centralized  international  organs  fulfilling  legislative,  executive  and  judicial 

7 

A more detailed account is below Section IV(1). 

 
 
 
 
 
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National Courts and the International Rule of Law 

199 

functions,  the  celebrated  French  author  maintained  that  those  three 
functions of the international legal order were to be performed, as it were, in 
a delocalized form. National organs would thus act as international organs, 
fulfilling an international function, whenever they acted in the international 
legal sphere, along the lines of what Scelle called 'dédoublement fonctionnel' (role 
splitting).8 

More  recent  scholarship  rarely  subscribes  to  the  view  that  national  courts 
would  constitute  fully  fledged  organs  of  the  international  legal  order.9  It  is 
instead commonly acknowledged that it would be purely fictitious to treat 
them  as  institutionally  detached  from  the  state  of  which  they  are  a  part.10 
Rather,  what  has  survived  of  Scelle's  thought  –  and  has  in  fact  thrived  in 
subsequent  literature  –  is  the  view  that  national  courts  may  fulfill  an 
international  function,  namely  that  of  filling  the  enforcement  gap  that 
international  law  continues  to  experience  and  that  could  diminish  its 
effectiveness.11 This gap stems from the fact that, on the one hand, the areas 

8  George Scelle, Précis de droit des gens: principes et systhèmatique, vol. I (Recueil Sirey 
1932) at 43, 54-56 and 217; Id, 'Règles générales du droit de la paix' (1933) 46 Recueil 
des cours 327, at 358-359 (terming the dédoublement fonctionnel 'la loi essentielle des 
rapports internationaux'). For comments on Scelle's theory, see ex multis Haro F. 
van  Panhuys,  'Relations  and  Interactions  Between  International  and  National 
Scenes of Law' (1964) 112 Recueil des cours 1, at 8-11; Antonio Cassese, 'Remarks on 
Scelle's Theory of "Role Splitting" (dédoublement fonctionnel) in International Law' 
(1990) 1 European Journal of International Law 210. 
There are echoes of this view in Richard A. Falk, 'The Role of Domestic Courts in 
the International Legal Order' (1964) Indiana Law Journal 429, at 436-437, speaking 
of 'national courts as international institutions, that is, as institutions responsible 
for  upholding  international  law  and  for  displaying  it  as a  common  system  of  law 
peculiar to no single state'. 

9 

10  Massimo Iovane, 'L'influence de la multiplication des juridictions internationales 
sur  l'application  du  droit  international'  (2017)  383  Recueil  des  cours  233,  at  320, 
noting  that  'les  tribunaux  internes  […]  fonctionnent  normalement  comme  des 
instruments  de  la  justice  nationale,  même  quand  ils  sont  tenus  d'appliquer  des 
normes  internationales'  and  adding  in  ft.  127  '[a]  moins  d'accepter  la  thèse  du 
dédoublement fonctionnel qui finit par considérer tous les organes internes comme 
des organes internationaux'. 
See e.g. Yuval Shany, 'Dédoublement fonctionnel and the Mixed Loyalties of National 
and  International  Judges',  in  Filippo  Fontanelli,  Giuseppe  Martinico  and  Paolo 

11 

 
 
 
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regulated by international law have expanded considerably in recent decades, 
causing its domain to overlap to a great extent with that of national law (e.g. 
in the field of human rights)12 while, on the other hand, the development of 
international mechanisms of law enforcement has not managed to keep pace. 
Because states retain exclusive control of coercive authority within their own 
law  remains,  somewhat  paradoxically,  entirely 
borders, 
dependent  for  its  domestic  implementation  on  the  very  subjects  whose 
actions it aims to constrain.13 It is precisely this 'increasing disparity between 
[international law's] growth of normative content and its lack of enforcement 
mechanism' that led Benedetto Conforti to assert that a 'truly legal function 
of international law' could only be achieved through the action of 'domestic 
legal operators' and, most relevantly, national courts.14 

international 

André  Nollkaemper  has  recently  developed  and  popularized  this  view  by 
combining it with theories of the IRL, i.e. the scholarly attempts to apply the 
concept  of  rule  of  law  to  the  international  realm.15  Nollkaemper's  view  is 
based on two main premises. Firstly, the rejection of any distinction between 
the rule of law at the domestic level and at the international level in favor of a 
unified notion of rule of law, at least where there is an overlap in the subject-

Carrozza  (eds),  Shaping  Rule  of  Law  Through  Dialogue.  International  and 
Supranational Experiences (Europa Law 2010) 27, at 40. 

12  Christian Tomuschat, 'International Law: Ensuring the Survival of Mankind on the 
Eve of a New Century' (1999) 281 Recueil des cours 9, at 63, describing international 
law as a 'comprehensive blueprint for social life'; James Crawford, 'International 
Law  and  the  Rule  of  Law'  (2003)  Adelaide  Law  Review  3,  at  6-8,  noting  that 
international law is increasingly concerned with the states' internal matters. 
13  Anne-Marie  Slaughter  and  William  Burke-White,  'The  Future  of  International 
Law is Domestic (or, The European Way of Law)' (2006) 47 Harvard International 
Law Journal 327, at 343. 

14  Benedetto  Conforti,  International  Law  and  the  Role  of  Domestic  Legal  Systems 
(Martinus Nijhoff 1993) at 7-12; Id (Massimo Iovane ed), Diritto internazionale, 11th 
ed.  (Editoriale  Scientifica  2018)  at  8-9.  Similarly,  see  Henry  G.  Schermers,  'The 
Role  of  Domestic  Courts  in  Effectuating  International  Law'  (1990)  3  Leiden 
Journal of International Law 77, particularly at 78-79. 
See  generally  Arthur  Watts,  'The  International  Rule  of  Law'  (1993)  36  German 
Yearbook  of  International  Law  15;  Stéphane  Beaulac,  'The  Rule  of  Law  in 
International Law Today', in Palombella and Walker (eds) (n 2) 197. 

15 

 
 
 
 
 
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National Courts and the International Rule of Law 

201 

matters  of  international  law  and  municipal  law.16  Secondly,  the  inclusion 
within  such  a  unified  notion  of  rule  of  law  of  both  formal  and  substantive 
elements.17 The 'formal' prong encapsulates the need for compliance with the 
law, requiring public power to be brought under the law and held accountable 
for its breaches, while the 'substantive' prong focuses on the content of the 
law, requiring that it conforms to fundamental human rights.18 Against this 
backdrop, it is argued that national courts may promote the (domestic as well 
as)  international  rule  of  law  as  long  as  a  number  of conditions are  realized, 
namely that: (i) they have jurisdiction over an international claim; (ii) they are 
independent  from  the  national  political  branches;  (iii)  they  are  entitled  by 
domestic law to apply international law; and (iv) private parties have standing 
to invoke the international norm as the basis of their claim.19 This conclusion 
largely  echoes  the  content  of  a  1994  resolution  of  the  Institut  de  Droit 
International, which suggested that in order for national courts to operate in 
the guise of international courts they should be allowed by domestic law to 
apply international law independently from their own governments.20 For the 

16  Nollkaemper (n 1) at 3. For a similar view see Yuji Iwasawa, 'Domestic Application 
of  International  Law'  (2015)  378  Recueil  des  cours  12,  at  184,  arguing  that 
application of international law by national courts 'is an effective means to enforce 
international obligations against the reluctant Government and promote the rule 
of law in the state'. 
See  Paul  Craig,  'Formal  and  Substantive  Conceptions  of  the  Rule  of  Law:  An 
Analytical Framework' (1997) Public Law 467; Brian Z. Tamanaha,  On the Rule of 
Law: History, Politics, Theory (Cambridge University Press 2004) at 91 ff., proposing 
a scale, ranging from 'thin' to 'thick' versions, to describe the different models of 
rule of law. 

17 

18  Nollkaemper (n 1) at 3-5. 
19 

20 

Ibid at 21-113. 
See the resolution of the Institut de droit international 'The Activities of National 
Judges  and  the  International  Relations  of  their  State'  (1994)  65(II)  Annuaire  de 
l'Institut  de  droit  international  318,  particularly  Art.  1.2  (national  courts  should 
'bas[e] themselves on the methods followed by international tribunals') and Art. 5.3 
(they  should  'mak[e] every  effort  to  interpret  it  as it would be  interpreted  by  an 
international  tribunal  and  avoid  […]  interpretations  influenced  by  national 
interests'). 

 
 
 
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sake  of  brevity,  in  the  following  pages  this  theory  on  the  role  of  national 
courts for the IRL will be referred to as the 'internationalist model'.21 

The  above  views,  it  should  be  noted,  have  not  gone  unchallenged.  A  first 
counterargument is that, even where on paper domestic law empowers them 
to apply international law in an impartial and independent manner, national 
courts would still tend not to apply international law to review governmental 
acts  in  politically  sensitive  situations.  To  this  end,  they  would  resort  to  an 
'avoidance  doctrines', 
array  of  judicial  techniques  collectively  termed 
including, for example, the so-called 'political question' doctrine, the 'act of 
state' doctrine and the doctrine of self-execution of treaties.22 Second, it has 
been contended that national courts are prone to national biases even where 
they apply international law.23 This is because, as Andreas Paulus has put it, 
'they do so because domestic law requires it, not because they are organs of 
the  international  community'.24  Eyal  Benvenisti  has  claimed  that  national 
courts could never be impartial in the sense envisioned by Nollkaemper, i.e. 
so as to operate as if they were international tribunals, because  'their chief 
motivation is not to promote global  justice  but to protect primarily, if  not 
exclusively, the domestic rule of law'.25 Moreover, national courts may apply 
international  law  merely  as  a  tool  to  safeguard  the  discretion  of  national 
governments  against  'the  attempts  of  interest  groups  and  powerful  foreign 

21  The same terminology is used by Mattias Kumm, 'International Law in National 
Courts:  The  International  Rule  of  Law  and  the  Limits  of  the  Internationalist 
Model' (2003) 44 Virginia Journal of International Law 19. 

22  Eyal  Benvenisti,  'Judicial  Misgivings  Regarding  the  Application  of  International 
Law:  An  Analysis  of  Attitudes  of  National  Courts'  (1993)  4  European  Journal  of 
International Law 159, at 169-173. On the 'political question' doctrine see further 
below Section IV.1. 

23  Wolfgang  G.  Friedmann,  The  Changing  Structure  of  International  Law  (Stevens  & 

Sons 1964) at 146-147. 

24  Andreas Paulus, 'National Courts and the International Rule of Law – Remarks on 
the Book by André Nollkaemper' (2012) 4 Jerusalem Review of Legal Studies 5, at 
9. 

25  Eyal Benvenisti, 'Comments on the Systemic Vision of National Courts as Part of 
an International Rule of Law' (2012) 4 Jerusalem Review of Legal Studies 42, at 45; 
Eyal Benvenisti and George W. Downs, 'National Courts, Domestic Democracy, 
and  the  Evolution  of  International  Law'  (2009)  20  European  Journal  of 
International Law 59, at 61. 

 
 
 
 
 
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National Courts and the International Rule of Law 

203 

governments  to  influence  them'.26  In  a  somewhat  similar,  although  less 
radical,  fashion,  Karen  Knop  has  criticized  the  'internationalist  model'  as 
reducing the role of national courts to a mere 'compliance mechanism', and 
has contended that the use of international law in domestic courts should be 
regarded  as  a  process  less  of  enforcement  and  more  of  translation.  An 
inescapable feature of the national judicial function would be to interpret and 
apply international norms in a way which is influenced by the national legal 
and cultural background.27 

In sum, the key trait common to such skeptical views is the challenge to the 
equivalence  between  international  and  domestic  rule  of  law.  While  these 
approaches  generally  do  not  deny  that  national  courts  may  faithfully  apply 
international  law  under  certain  circumstances,  they  highlight  that  this 
outcome is entirely dependent on considerations of domestic law and, for this 
reason, more elusive than the 'internationalist model' suggests. This stance 
may be reinforced by noting that national courts of any jurisdiction  – even 
those where international law is respected as a matter of course – show some 
degree  of  resistance  towards  international  legal  regimes,  at  least  when  it 
comes to safeguard principles of domestic law perceived as fundamental.28 

26  Eyal  Benvenisti,  'Reclaiming  Democracy:  The  Strategic  Uses  of  Foreign  and 
International  Law  by  National  Courts'  (2008)  102  American  Journal  of 
International  Law  241,  at  244.  Similarly,  Antonio  Cassese  criticized  Scelle  for 
neglecting cases in which national organs, although acting within the international 
legal  sphere,  pursue  chiefly  national  interests  instead  of  'metanational  values  or 
long-term, communal objectives': Cassese (n 8) at 219. 

27  Karen  Knop,  'Here  and  There:  International  Law  in  Domestic  Courts'  (1999-
2000) 32 NYU Journal of International Law and Politics 501, at 503-505. Compare 
to  Francesco  Francioni,  'The  Jurisprudence  of  International  Human  Rights 
Enforcement: Reflections on the Italian Experience', in Benedetto Conforti and 
Francesco Francioni (eds), Enforcing International Human Rights in Domestic Courts 
(Martinus Nijhoff 1997) 15, at 16, arguing that independent judges should act 'as la 
bouche de la loi, as instruments of the impartial application of international law'. 
See  the  studies  collected  in  Fulvio  Maria  Palombino,  Duelling  for  Supremacy. 
International Law vs. National Fundamental Principles (Cambridge University Press 
2019); Alexandra Huneeus, 'Rejecting the Inter-American Court: Judicialization, 
National  Courts,  and  Regional  Human  Rights',  in  Javier  Couso,  Alexandra 
Huneeus,  Rachel  Sieder  (eds),  Cultures  of  Legality:  Judicialization  and  Political 
Activism in Latin America (Cambridge University Press 2010) 112, at 134-135;  

28 

 
 
 
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III. GOVERNMENTAL VIOLATIONS OF INTERNATIONAL MIGRATION 
LAW: THE EXAMPLE OF THE DICIOTTI AFFAIR 

As mentioned in section I, the field of international migration law  offers a 
particularly suitable testing ground for the role that national courts can play 
in  the  effective  enforcement  of  international  law.  This  is  not  only  because 
international  law  violations  frequently  occur  in  this  area,  but  also  because 
such  violations  may  concern  norms  of  fundamental  importance,  including 
those protecting basic human rights. This section illustrates these points by 
concentrating  on  a  case  which  recently  unfolded  in  Italy  and  which 
constitutes  a  prime  example  of  violations  of  international  migration  law 
produced by current governmental policies of migration containment. The 
next  section  then  considers  the  national  courts'  reaction  to  such  breaches 
within the framework of the above theories on the role of national courts for 
the IRL. 

The case at hand originated from an August 2018 incident involving a vessel 
of the Italian Coast Guard (the Diciotti) carrying 177 migrants rescued in the 
Mediterranean Sea. After a five-day wait off the coast of Lampedusa island, 
the Diciotti was authorized to dock in the Sicilian port of Catania. However, 
the  migrants  were  prevented  from  disembarking  for  two  more  days,  in  the 
case  of  27  unaccompanied  minors,  and  five  more  days  for  all  the  others. 
Members  of  the  Italian  government  declared  that  the  impasse  would 
continue  until  the  European  Union  found  a  solution  for  the  allocation  of 
migrants  to  states  other  than  Italy.29  People  onboard  were  allowed  to  go 
ashore  only  after  the  Catholic  Church,  Ireland  and  Albania  agreed  to  a 
redistribution plan.30 

29 

on 

boat' 

rescue 

Reuters 

Steve  Scherer  and  Gabriela  Baczynska,  'Italy  clashes  with  EU  over  migrants 
stranded 
2018) 
<https://www.reuters.com/article/us-europe-migrants-italy/italy-clashes-with-eu-
over-migrants-stranded-on-rescue-boat-idUSKCN1L9181> accessed 19 April 2019. 
30  To the knowledge of the present author, this plan was never fully implemented. In 
particular, no migrant would appear to have been transfered to Albania: see Nicola 
Pedrazzi, 'Nessun asilante della Diciotti è mai arrivato in Albania' OBC Transeuropa 
(4 February 2019) <https://www.balcanicaucaso.org/aree/Albania/Nessun-asilante-
della-Diciotti-e-mai-arrivato-in-Albania-

August 

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National Courts and the International Rule of Law 

205 

The  events  of  the  Diciotti  incident  should  be  looked  at  within  the  broader 
framework  of  the  strategies  of  immigration  containment  implemented  by 
various Italian governments in recent years.31 Such strategies have taken on 
different  forms,  ranging  from  so-called  'push-backs'  to  Libya  directly 
performed by Italian authorities – which the ECtHR censured in the notable 
case of Hirsi Jamaa32 – to cooperation with Libya,33 which was regulated by a 
controversial  agreement  between  Italy  and  the  Government  of  National 
Accord led by Fayez al-Sarraj.34 More recently, the Italian government put in 
place  yet  another  approach  to  migration  through  the  Mediterranean, 
consisting inter alia in closing Italy's ports to ships carrying migrants rescued 

31 

192453?fbclid=IwAR0Wxr1Tmjpss4bGz81_bUqZhTJcy4-
_gdYMyz7rnarl3udWMr5rVhXUD0s>. 
See  ex  multis  Marina Mancini,  'Italy's  New  Migration  Control  Policy.  Stemming 
the Flow of Migrants from Libya Without Regard for Their Human Rights' (2017) 
27 Italian Yearbook of International Law 259. 

33 

32  Hirsi Jamaa and Others v Italy, App. No. 27765/09 (ECtHR, 23 February 2012). See 
Violeta  Moreno-Lax,  'Hirsi  Jamaa  and  Others  v  Italy  or  the  Strasbourg  Court 
versus  Extraterritorial  Migration  Control?'  (2012)  12  Human  Rights  Law  Review 
574. 
Federica  Mussi  and  Nikolas  Feith  Kan,  'Comparing  Cooperation  on  Migration 
Control:  Italy–Libya  and  Australia–Indonesia'  (2015)  10  Irish  Yearbook  of 
'Back  to  Old  Tricks?  Italian 
International  Law  87;  Jean-Pierre  Gauci, 
Responsibility  for  Returning  People  to  Libya'  (EJIL:  Talk!,  6  June  2017) 
<https://www.ejiltalk.org/back-to-old-tricks-italian-responsibility-for-returning-
people-to-libya/> accessed 19 April 2019. 

– 

(Italy 

34  Memorandum d'intesa sulla cooperazione nel campo dello sviluppo, del contrasto 
all'immigrazione  illegale,  al  traffico  di  esseri  umani,  al  contrabbando  e  sul 
rafforzamento della sicurezza delle frontiere tra lo Stato della Libia e la Repubblica 
2017) 
Libya) 
Italiana 
<http://www.governo.it/sites/governo.it/files/Libia.pdf>  (in  Italian),  accessed  19 
April 2019. On the controversies with regard to this agreement, see Anna Liguori, 
Migration Law and the Externalization of Border Controls: European State Responsibility 
(Routledge 2019); Marina Mancini, 'Il Memorandum d'intesa tra Italia e Libia del 
2017  e la sua attuazione',  in  Natalino  Ronzitti and Elena Sciso (eds),  I conflitti in 
Siria e Libia. Possibili equilibri e le sfide al diritto internazionale (Giappichelli 2018) 191; 
Giulia  Ciliberto,  'Libya's  Pull-Backs  of  Boat  Migrants:  Can  Italy  Be  Held 
Accountable for Violations of International Law?' (2018) 4 Italian Law Journal 489. 

February 

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at  sea.35  Under  the  'closed  ports  policy',  boats  run  by  non-governmental 
organizations  (NGOs)  have  been  denied  access  to  Italian  coastal  cities  on 
multiple  occasions.36  Even  against  this  backdrop,  however,  the  Diciotti 
incident  constitutes  something  of  an  anomaly,  because  it  concerned  the 
Italian Coast Guard's own boat being prevented by the Italian government 
from disembarking migrants in an Italian port. 

1. The Diciotti Affair and the International Law of the Sea 

The  international  law  assessment  of  the  incident  should  be  performed 
separately with respect to the international law of the sea and international 
human  rights  law,  i.e.  the  areas  of  international  law  that  are  most  directly 
relevant  to  migration  at  sea.  As  regards  the  former,  the  relevant  legal 
framework  is  contained  in  the  UN  Convention  on  the  Law  of  the  Sea 
(UNCLOS)37  and  two  International  Maritime  Organization 
(IMO) 
Conventions, namely the 1974 Safety of Life at Sea Convention (SOLAS) and 
the 1979 Search and Rescue Convention (SAR).38 Italy is a party to all three 

35 

36 

See generally Pasquale De Sena and Francesca De Vittor, 'La "minaccia" italiana di 
"bloccare"  gli  sbarchi  e  il  diritto  internazionale'  (SIDIBlog,  1  July  2017) 
<http://www.sidiblog.org/2017/07/01/la-minaccia-italiana-di-bloccare-gli-sbarchi-
di-migranti-e-il-diritto-
internazionale/?fbclid=IwAR1gO1pZrNPRT2ik_Y67MuHUfgVMtw7h6vUCpX
3tAVLGN5wsjtru-iPJT10> accessed 19 April 2019. 
'Dalla Mediterranea alla Diciotti: tutte le navi respinte da Salvini' Il Sole 24 Ore (5 
July  2019)  <https://www.ilsole24ore.com/art/dalla-mediterranea-diciotti-tutte-
navi-respinte-salvini-ACr4AtW>  accessed  12  July  2019;  'Migrant  crisis:  Italy 
minister  Salvini  closes  ports  to  NGO  boats'  BBC  News  (30  June  2018) 
<https://www.bbc.com/news/world-europe-44668062> accessed 19 April 2019. See 
e.g.  Melanie  Fink  and  Kristof  Gombeer,  'The  Aquarius  incident:  navigating  the 
turbulent  waters  of 
June  2018) 
<https://www.ejiltalk.org/the-aquarius-incident-navigating-the-turbulent-waters-
of-international-law/> accessed 19 April 2019; Martina Ramacciotti, 'Sulla utilità di 
un codice di condotta per le organizzazioni non governative impegnate in attività 
di search and rescue (SAR)' (2018) 101 Rivista di diritto internazionale 213. 

(EJIL:  Talk!, 

international 

law' 

14 

37  United  Nations Convention on the Law of the Sea (adopted 10 December 1982, 

38 

entered into force 16 November 1994) 1833 UNTS 3 (UNCLOS). 
International Convention for the Safety of Life at Sea (adopted 1 November 1974, 
entered  into  force  25  May  1980)  1184  UNTS  276  (SOLAS);  International 
Convention on Maritime Search and Rescue (adopted 27 April 1979, entered into 

 
 
 
 
 
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National Courts and the International Rule of Law 

207 

Conventions.  Article  98  UNCLOS  sets  forth  a  general  duty  to  render 
assistance to people in distress at sea, while the two IMO Conventions flesh 
out this principle in more detail. The SAR Convention, in particular, requires 
coastal  states  to  ensure  search  and  rescue  services  within  the  marine  area 
under  their  responsibility,  so-called  Search  and  Rescue  Region  (SRR),  and 
establishes an obligation for states to cooperate in the performance of search 
and  rescue  duties.39  In  2004,  both  the  SAR  Convention  and  the  SOLAS 
Convention were amended to read as follows: 

The  Party  responsible  for  the  search  and  rescue  region  in  which  such 
assistance is rendered shall exercise primary responsibility for ensuring such 
co-ordination  and  co-operation  occurs,  so  that  survivors  assisted  are 
disembarked from the assisting ship and delivered to a place of safety, taking 
into  account  the  particular  circumstances  of  the  case  and  guidelines 
developed  by  the  Organization.  In  these  cases,  the  relevant  Parties  shall 
arrange  for  such  disembarkation  to  be  effected  as  soon  as  reasonably 
practicable.40 

In  the  case  of  the  Diciotti  incident,  the  rescue  operation  took  place  in  the 
Maltese SRR but was performed by Italian vessels acting under directions of 
the Maritime Rescue Coordination Center of the Italian Coast Guard. The 
Italian authorities performed the rescue operation shortly after receiving a 

39 

40 

force 22 June 1985) 1405 UNTS 97 (SAR). Both Conventions have been amended in 
2004. On this legal regime see Irini Papanicolopulu, 'The Duty to Rescue at Sea, in 
Peacetime and in War: A General Overview' (2016) 98 International Review of the 
Red Cross 491. 
See in particular SAR Convention, Annex, Chapter 3. On the Convention regime 
see  further  Daniel  Ghezelbash,  Violeta  Moreno-Lax,  Natalie  Klein  and  Brian 
Opeskin,  'Securitization  of  Search  and  Rescue  at  Sea:  The  Response  to  Boat 
Migration  in  the  Mediterranean  and  Offshore  Australia'  (2018)  67  International 
and Comparative Law Quarterly 315. 
Ibid para 3.1.9; SOLAS Convention, Chapter V, Regulation 33, para 1.1 (with minor 
textual differences). Both amendments were adopted with a view to clarifying the 
states'  obligations  in  the  aftermath  of  the  Tampa  affair,  when  the  Australian 
government  refused  to  allow  a  Norwegian  cargo  ship  to  disembark  433  migrants 
rescued  from  a  vessel  in  distress.  On  this  incident  see  Penelope  Mathew, 
'Australian  Refugee  Protection  in  the Wake  of  the  Tampa'  (2002)  96  American 
Journal of International Law 661; Matteo Fornari, 'Soccorso di profughi in mare e 
diritto di asilo: questioni di diritto internazionale sollevate dalla vicenda della nave 
Tampa' (2002) 57 Comunità internazionale 61. 

 
 
 
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distress  call  from  the  ship  carrying  migrants.41  In  this  initial  phase,  Italy's 
actions appear to be fully in line with the relevant international obligations. 
In referring to a 'primary responsibility' of the state responsible for the SRR, 
the  IMO  Conventions  implicitly  acknowledge  that  states  may  perform 
search and rescue services in other states' SRRs. This is also consistent with 
the  SAR  Convention's  emphasis  on  cooperation.  The  Convention  further 
provides that '[o]n receiving information that any person is, or appears to be, 
in distress at sea, the responsible authorities of a Party shall take urgent steps 
to ensure that the necessary assistance is provided'.42 Given Malta's notorious 
unwillingness to intervene in its SRR,43 Italy rightly took responsibility  for 
the search and rescue operation upon receiving the distress call.44 

The legal assessment of the events which took place in the following ten days, 
however, is more complex. The day after conducting the search and rescue 
operation, the Diciotti requested from the authorities of both Italy and Malta 
the indication of a place of safety for the migrants to disembark. Because the 
two  governments  disagreed  about  the  port  of  disembarkation,  neither 
country responded to the vessel's request, thus leaving it standing by off the 
coast  of  Lampedusa.  Two  days  later,  the  Diciotti  received  orders  from  the 

42 

the 

41  The  factual  circumstances  of  the  incident  are  summarized  in  the  Tribunal  of 
Catania's request to Parliament for authorization to proceed against the Minister 
of 
Interior, 
<http://www.senato.it/service/PDF/PDFServer/BGT/1097913.pdf>  accessed  21 
May  2019  at  6-8  (hereinafter  'Request').  On  this  document  see  further  below 
Section IV(1). 
SAR Convention, Annex, Chapter 2, para 2.1.1. 
In  the  case  under  scrutiny,  the  Maltese  authorities  refused  to  intervene  by 
questioning  that  the  migrant  vessel  was  actually  in  distress:  see  'New  standoff: 
Malta  says  migrants were not in  distress,  refused  help'  The  Malta  Independent  (16 
August 
<http://www.independent.com.mt/articles/2018-08-16/local-
news/New-migration-standoff-brewing-as-Salvini-threatens-to-renege-on-
Aquarius-agreement-6736194975> accessed 19 April 2019. 

2018) 

43 

44  This  is  further  confirmed  by  the  2016  International  Aeronautical  and  Maritime 
Search and Rescue Manual, a non-binding document jointly published by the IMO 
and the International Civil Aviation Organization (ICAO): see Volume II, Section 
3.6: '[w]hen an RCC or RSC receives information indicating a distress outside of its 
SRR,  it  should  immediately  notify  the  appropriate  RCC  or  RSC  and  take  all 
necessary action to coordinate the response until the appropriate RCC or RSC has 
assumed responsibility'. 

 
 
 
 
 
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National Courts and the International Rule of Law 

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Italian maritime authorities to sail towards Sicily and to dock in the port of 
Catania. All this happened without the Italian authorities formally declaring 
Catania to be the 'place of safety' where the migrants could disembark; on the 
contrary,  the  captain  of  the  Diciotti  was  informed  that  Catania  only 
constituted a temporary port of call. A formal designation as place of safety 
was still lacking when the migrants were eventually allowed ashore.45 

Two  points  are  relevant  for  the  assessment  of  Italy's  management  of  the 
incident from the perspective of the international law of the sea. Firstly, the 
terms of the Conventions, requiring disembarkation to be effected 'as soon 
as  reasonably  practicable'  and  by  having  regard  to  the 
'particular 
circumstances  of  the  case',  do  not  demand  immediate  disembarkation. 
Secondly,  and  most  crucially,  the  above-quoted  passage  of  the  IMO 
Conventions  requiring  the  country  responsible  for  the  SRR  to  ensure  that 
the rescued people are brought to a 'place of safety' is commonly interpreted 
as an obligation to 'take the lead in finding a port for disembarkation'46 and 
not as a duty to disembark people in the coordinating state itself (this duty 
can  logically  be  extended  to  any  country  taking  on  responsibility  for  a 
particular  search  and rescue operation).47  In  principle,  therefore, the  IMO 
Conventions are without prejudice to the international law rule that entitles 
a state to regulate access to its ports as an exercise of its sovereignty.48 As a 
matter  of  fact,  the  lack  of  a  default  state  of  disembarkation  or  a  standard 
procedure for determining such a state has been termed 'the main lacuna in 
the current SAR regime'.49 A delay of some days in the disembarkation, while 

45  Request (n 41) at 7-8. 
46  Fink and Gombeer (n 36). 
47  Efthymios Papastavridis, 'Rescuing Migrants at Sea and the Law of International 
Responsibility', in Thomas Gammeltoft-Hansen and Jens Vedsted-Hansen (eds), 
Human Rights and the Dark Side of Globalisation: Transnational Law Enforcement and 
Migration  Control  (Routledge 2017).  On  the  notion  of  place  of safety,  see Martin 
Ratcovich,  'The  Concept  of  'Place  of  Safety':  Yet  Another  Self-Contained 
Maritime  Rule  or  a  Sustainable  Solution  to  the  Ever-Controversial  Question  of 
Where to Disembark Migrants Rescued at Sea?' (2015) 33 Australian Yearbook of 
International Law 81. 

48  Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United 

States of America) (Merits, Judgment) [1986] ICJ Rep 14, para 213. 

49  Patricia Mallia, 'The MV Salamis and the State of Disembarkation at International 
2014) 

Law:  The  Undefinable  Goal' 

15  May 

Insights, 

(ASIL 

 
 
 
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consultations  are  conducted  between  the  coastal  states  involved,  is  rather 
run-of-the-mill in the functioning of the ILO Conventions.50 

The above may lead to the conclusion that no violations of the law of the sea 
seemingly  occurred  while  the  Diciotti  awaited  instructions  off  the  coast  of 
Lampedusa.  This  conclusion  may  be  reinforced  by  noting  that  thirteen 
migrants  in  need  of  medical  assistance  were  allowed  ashore  in  Lampedusa 
without further delay.51 With regard to the days spent in the port of Catania, 
however, a different conclusion is probably warranted. Once the ship docked 
in  a  port,  the  disembarkment  of  all  migrants  was  certainly  reasonably 
practicable, therefore making the further delays hardly justifiable under the 
terms of the Conventions. 

Interestingly,  some  government  officials  advanced  the  argument  that  the 
ship itself, while docking in the port of Catania, could constitute a place of 
safety.52  This  argument  implies  that,  for  Italy  to  meet  its  obligations, 
disembarkation of the migrants was unnecessary. But such a view neglects the 
fact  that  the  IMO  Conventions  expressly  provide  for  a  general  duty  to 
disembark.  The  IMO  Maritime  Safety  Committee  Guidelines  on  the 
Treatment of Persons Rescued at Sea support the view that a ship may serve 
as  a  place  of  safety  only  'temporarily',53  and  that  'alternative  arrangements' 
should be made as soon as possible.54 

<https://www.asil.org/insights/volume/18/issue/11/mv-salamis-and-state-
disembarkation-international-law-undefinable-goal#_edn5>  accessed  19  April 
2019. 

50  On the many cases in which vessels carrying migrants rescued in the Meditteranean 
had to wait for days before a port for disembarkment could be identified see Kristof 
Gombeer, 'Human Rights Adrift? Enabling the Disembarkation of Migrants to a 
Place  of  Safety  in  the  Mediterranean'  (2015)  10  Irish  Yearbook  of  International 
Law 23. 

51  Request (n 41) at 5. 
52 

Ibid 31. 

53  MSC 78/26/Add.2, 20 May 2004, para. 6.13. 
54 

Ibid. See also para. 6.14: '[a] place of safety may be on land, or it may be aboard a 
rescue unit or other suitable vessel or facility at sea that can serve as a place of safety 
until the survivors are disembarked to their next destination'. 

 
 
 
 
 
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National Courts and the International Rule of Law 

211 

2. The Diciotti Affair and International Human Rights Law 

The events under scrutiny  should also be evaluated from the standpoint of 
international human rights law. The most relevant provision in this respect is 
Article  5  of  the  European  Convention  on  Human  Rights  (ECHR),  which 
enshrines the prohibition of arbitrary deprivation of liberty. Pursuant to this 
Article, in order to be lawful, a deprivation of liberty must: (i) fall within one 
of the admissible grounds listed at para. 1;55 (ii) be prescribed by law;56 and (iii) 
be  subject  to  prompt  and  speedy  judicial  review.57  In  its  rich  case  law 
concerning this provision, the ECtHR has clarified that a breach of Article 5 
may occur regardless of whether the alleged deprivation of liberty is qualified 
as such under domestic law. What is required is merely that a person has been 
confined  without  his/her  consent  in  a  restricted  space  for  a  non-negligible 
period of time, a notion which may include deprivations of a relatively short 
duration.58 

When  applying  such  standards  to  the  events  of  the  Diciotti  case,  the  main 
issues arise with regard to Article 5(1)(f), which provides for a lawful ground 
of  deprivation  of  liberty  in  the  case  of  'the  lawful  arrest  or  detention  of  a 
person to prevent his effecting an unauthorised entry into the country or of a 
person  against  whom  action  is  being  taken  with  a  view  to  deportation  or 
extradition'. In the Khlaifia v Italy case, the ECtHR applied this principle to 
the detention of irregular migrants in a reception center and on a ship.59 It 
should  be  noted,  however,  that  the  facts  in  Khlaifia  were  different  from 

55  Article  5(1)(a)-(f)  of  the  Convention  for  the  Protection  of  Human  Rights  and 
Fundamental  Freedoms  (adopted  4  November  1950,  entered  into  force  3 
September 1953) 213 UNTS 222 (ECHR). The list is exhaustive and the exceptions 
must  be  interpreted  restrictively:  see  S,  V  and  A  v  Denmark,  App  Nos  35553/12, 
36678/12 and 36711/12 (ECtHR, 22 October 2018) para 73. On Article 5 ECHR, see 
William  A.  Schabas,  The  European  Convention  on  Human  Rights:  A  Commentary 
(Oxford University Press 2015) at 219-263. 

56  Article 5(1) ECHR. 
57  Article 5(3)-(4) ECHR. 
58 

See e.g. Storck v Germany, App No 61603/00 (ECtHR, 16 June 2005) paras 73-74; 
Rantsev v Cyprus and Russia, App No 25965/04 (ECtHR, 7 January 2010) para 317. 

59  Khlaifia and Others v Italy, App No 16483/12 (ECtHR, 15 December 2016). See the 
comment  by  Jill  I.  Goldenziel  (2018)  112  American  Journal  of  International  Law 
274; and Maria Rosaria Mauro, 'Detention and Expulsion of Migrants: the Khlaifia 
v. Italy Case' (2015) 25 Italian Yearbook of International Law 85. 

 
 
 
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Diciotti,  in  that  the  migrants  were  already  present  on  Italian  territory  and 
were  awaiting  deportation  from  the  country.  What  is  of  interest  here  is 
instead  the  first  limb  of  Article  5(1)(f),  which  recognizes  that  states  have  a 
right  to  control  aliens'  entry  into  their  territory.60  Clearly,  this  provision 
acknowledges  that  states  can  detain  immigrants,  and  this  also  applies  to 
asylum seekers.61 Therefore, a violation of Article 5 cannot be inferred from 
the mere fact that the migrants were detained for some time. 

It is rather the particular features of this detention that raise serious doubts 
about  its  compatibility  with  the  Convention.  Firstly,  the  confinement  of 
migrants on the Diciotti, while it was anchored in the harbor of Catania, was 
neither  prescribed  by  domestic  law  nor  carried  out  according  to  any  pre-
established procedure; rather, it was an act of arbitrariness.62 Secondly, the 
fact that the detention was realized in violation of a specific international law 
obligation to disembark is relevant in the assessment of its lawfulness under 
the  ECHR.  Indeed,  to  determine  whether  a  deprivation  of  liberty  is 
'prescribed by law', the Strasbourg Court refers to procedural standards set 
not only by domestic law but also, when appropriate, by international law.63 
Thirdly, it can be presumed that the migrants were not promptly informed of 
the reasons (whatever they might be) for their detention, in breach of Article 

60 

See e.g. Amuur v France, App No 19776/92 (ECtHR, 25 June 1996) para 41. 

61  As was the case in Saadi v United Kingdom, App No 13229/03 (ECtHR, 29 January 

2008). 

62  As  noted  by  Francesca  Cancellaro  and  Stefano  Zirulia,  'Controlling  Migration 
through  De  Facto  Detention:  The  Case  of  the  "Diciotti"  Italian  Ship'  (Border 
Criminologies,  22  October  2018)  <https://www.law.ox.ac.uk/research-subject-
groups/centre-criminology/centreborder-criminologies/blog/2018/10/controlling> 
accessed 19 April 2019, Italian law prescribes that migrants can be detained for the 
sole  purposes  of  executing  a  deportation  order,  and  only  within  'deportation 
centers': see Art. 13-14 of Legislative Decree n. 286 of 1998. The arbitrariness of the 
detention from the standpoint of domestic law is further confirmed by the fact that 
no  formal  administrative  act  forbidding  disembarkation  was  issued  during  the 
stand-off:  see  'Accesso  civico  ai  Ministeri  dell'interno  e  dei  Trasporti:  nessun 
(ASGI,  10  January  2019) 
provvedimento  formale  di  chiusura  dei  porti' 
<https://www.asgi.it/media/comunicati-stampa/chiusura-porti-accesso-civico/> 
accessed 19 April 2019. 

63  Medvedyev and Others v France, App No 3394/03 (ECtHR 29 March 2010) para 79; 

Toniolo v San Marino and Italy, App No 44853/10 (ECtHR, 26 June 2012) para 46. 

 
 
 
 
 
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National Courts and the International Rule of Law 

213 

5(2)  ECHR.  In  Saadi  v  United  Kingdom,  the  ECtHR  found  a  breach  of  this 
provision in the UK authorities' 76-hour delay in informing the applicant, an 
asylum  seeker,  of  the  reasons  for  his  detention  in  a  reception  center,  even 
though the detention itself was not found to be unlawful under  Article 5(1) 
ECHR.64 Lastly, the migrants' confinement on the Diciotti was not subject to 
any form of judicial review. 

In  conclusion,  it  can  be  asserted  that  Italy  most  likely  breached  Article  5 
ECHR.65 It should be noted that 41 migrants have already announced their 
intention to bring the case to the Strasbourg Court.66 Comparable provisions 
of other international conventions may also be said to have been breached, 
primarily  Article  9  of  the  International  Covenant  on  Civil  and  Political 
Rights (ICCPR)67 and (with regard to the situation of the minors onboard the 
Diciotti) Article 37(b) of the Convention on the Rights of the Child.68 

It has been suggested that the confinement of the migrants on the  Diciotti 
may also constitute a violation of Article 3 ECHR, pursuant to which '[n]o 
one  shall  be  subjected  to  torture  or  to  inhuman  or  degrading  treatment  or 

64 

65 

67 

66 

Saadi v United Kingdom (n 61). 
In this sense see Massimo Frigo, 'The Kafkaesque "Diciotti" Case in Italy: Does 
Keeping  177  People  on  a  Boat  Amount  to  an  Arbitrary  Deprivation  of  Liberty?' 
(OpinioJuris,  28  August  2018)  <http://opiniojuris.org/2018/08/28/the-kafkaesque-
diciotti-case-in-italy-does-keeping-177-people-on-a-boat-amount-to-an-arbitrary-
deprivation-of-liberty/> accessed 19 April 2019.  
'Migrants appeal to European Court in kidnapping case'  AdnKronos (21 February 
2019)  <https://www.adnkronos.com/aki-en/security/2019/02/21/migrants-appeal-
european-court-kidnapping-case_R15awdcGcpo0s488BuNggK.html?refresh_ce> 
accessed 19 April 2019. 
International Covenant on Civil and Political Rights (adopted 16 December 1966, 
entered into force 23 March 1976) 999 UNTS 171 (ICCPR). On Article 9, see Sarah 
Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: 
Cases, Materials, and Commentary, 3rd ed. (Oxford University Press 2013) at 340-391. 
68  Convention on the Rights of the Child (adopted 20 November 1989, entered into 
force  2  September  1990)  1577  UNTS  3.  On  Article  37,  see  William  Schabas  and 
Helmut Sax, Article 37: Prohibition of Torture, Death Penalty, Life Imprisonment and 
Deprivation  of  Liberty  (Martinus  Nijhoff  Publishers  2006).  See  further  Roberto 
Virzo, 'Coastal States and the Protection of Migrant Children at Sea', in Francesca 
Ippolito  and  Giacomo  Biagioni  (eds),  Migrant  Children:  Challenges  for  Public  and 
Private International Law (Editoriale Scientifica 2016) 3. 

 
 
 
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punishment'.69 In its case law, the ECtHR has clarified that only cases of ill-
treatment attaining a 'minimum level of severity' fall within the scope of this 
provision.70 With particular regard to detained persons, the Court has held 
that the 'unavoidable level of suffering inherent in detention' is not sufficient 
to produce a breach of Article 3, as long as the conditions are compatible with 
respect for human dignity and the detainee's health is adequately protected.71 
The ECtHR assesses whether these conditions are respected on a case-by-
case  basis  by  taking  into  account  all  the  factual  circumstances  of  the  case, 
which may include duration, age and state of health of the affected people, or 
whether there was a situation of extreme overcrowding.72 

In  more  practical  terms,  in  Khlaifia  v  Italy  the  ECtHR  found  that  the 
detention of migrants on two ships for five to seven days did not constitute a 
violation of Article 3 on the part of Italy in light of multiple factors, namely 
the  fact  that  the  detainees  were  provided  with  medical  assistance, 
satisfactory  food  and  drink,  water  and  electricity,  adequate  bedding  and 
clothing.73 While there is no indication that the Diciotti migrants were denied 
adequate  health  assistance,  food  and  water,  the  conditions  on  the  Diciotti 
were arguably harsher than in Khlaifia. The Tribunal of Catania described the 
migrants' condition as 'precarious', for example because they were forced to 
sleep on the ground on the ship's deck, but also noted that the ship's captain 
actively tried to ensure decent living conditions.74 All things considered, it is 
hardly possible to make a conclusive judgment on whether the ECtHR would 
find Article 3 to have been violated in this case. This would depend on a more 
detailed  assessment  of  the  specific  conditions  to  which  the  migrants  were 

69  Carmelo  Danisi, 

'What  "Safe  Harbours"  Are  There  for  People  Seeking 
International Protection on Sexual Orientation and Gender Identity Grounds? A 
Human Rights Reading of International Law of the Sea and Refugee Law' (2018) 5 
GenIUS  6,  <http://www.articolo29.it/wp-content/uploads/2018/11/genius-2018-
02.pdf> accessed 19 April 2019, at 17. 
70  Khlaifia and Others v Italy (n 59) para 159. 
71  Rahimi v Greece, App No 8687/08 (ECtHR 5 April 2011) para 60. 
72  This  principle  was  first  expressed  in  Ireland  v  United  Kingdom,  App  No  5310/71 
(ECtHR  18  January  1978).  See  inter  alia  Kalashnikov  v  Russia,  App  No  47095/99 
(ECtHR 15 July 2002) para 102 (on duration); and Mursič v Croatia, App No 7334/13 
(ECtHR 20 October 2016) para 104 (on severe overcrowding). 

73  Khlaifia and Others v Italy (n 59) para 207. 
74  Request (n 41) at 27. 

 
 
 
 
 
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National Courts and the International Rule of Law 

215 

subjected  on  the  Diciotti  during  the  stand-off,  as  well  as  on  the  personal 
conditions of each individual migrant. 

IV. TESTING THE LIMITS OF GOVERNMENTAL ACCOUNTABILITY 
BEFORE NATIONAL COURTS: LESSONS FROM THE DICIOTTI AFFAIR 

This article now turns to the role that national courts may play in remedying 
violations  of  international  migration  law  and  ensuring  governmental 
accountability. In this regard, the example of the Diciotti affair again proves 
illustrative. This section focuses on the reaction of the Italian courts to the 
governmental  breaches  of  international  law  which  occurred  during  the 
incident and on their efforts to scrutinize the legality of the state authorities' 
actions.  As  will  be  seen,  some  elements  of  the  analysis  clearly  confirm  the 
main  premises  of  the  theory  of  national  courts  as  guardians  of  the  IRL. 
However, other features of this case also shed light on the limitations that 
national  courts  may  encounter  in  their  attempts  to  ensure  executive 
accountability for international law violations. 

1. The Power of National Courts: International Law as a Limit on Governmental 
Action 

Some  elements  of  the  Diciotti  case  clearly  conform  to  the  'internationalist 
model' of the role of national courts in supporting the IRL.75 In particular, 
the violations of international law committed during the incident produced 
two  strands  of  disputes  before  national  courts:  one  civil  and  the  other 
criminal. As regards the former, 41 people who were confined onboard the 
Diciotti  sued  the  Italian  government  for  damages  before  the  Tribunal  of 
Rome.76 The basis of their  claim, on which the court has yet to rule, was a 
violation of the right to personal liberty under Article 5 ECHR and Article 13 
of  the Italian Constitution.77 With regard to the criminal  consequences  of 

75 

76 

See above Section II. 
'Diciotti  migrants 
<http://www.ansa.it/english/news/politics/2019/02/21/diciotti-migrants-file-for-
damages_e0427f34-b737-4d63-b384-e5e71a6915cf.html> accessed 19 April 2019. 

damages'  Ansa 

February 

file 

for 

(21 

2019) 

77  The 

text  of 

the  appeal 

is  available  at  <https://www.panorama.it/wp-
content/uploads/2019/02/RICORSO-EX-ART.-702-BIS.pdf>  accessed  21  May 
2019. 

 
 
 
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the  incident,  shortly  after  the  disembarkation  of  the  migrants,  a  public 
prosecutor initiated proceedings against the Italian Minister of the Interior, 
Matteo Salvini, who allegedly masterminded the state's response. The charge 
was that keeping people onboard the Diciotti amounted to illegal deprivation 
of  liberty  insofar  as  it  violated  multiple  norms  of  both  national  and 
international  law.  Further  criminal  cases  were  later  initiated  on  the  same 
grounds against other members of the executive, including the President of 
the  Council  of  Ministers,  Giuseppe  Conte,  but  these  charges  were 
dismissed.78 

For  the  purposes  of  the  present  discussion,  the  criminal  case  against  the 
Minister  of  the  Interior  is  particularly  notable  and  deserves  further 
comment.79  On  22  January  2019,  the  Tribunal  of  Catania  confirmed  the 
charges  of  kidnapping  and  requested  Parliament  to  authorize  a  trial.80 
Pursuant to the Italian Constitution, in order for ministers to be tried for acts 
committed  in  the  exercise  of  their  functions,  authorization  by  one  of  the 
Chambers  of  Parliament  is  required.81  In  its  request  to  Parliament  for 
authorization to proceed, the Tribunal of Catania attached great importance 
to  international  law,  referring  in  particular  to  limits  set  by  international 
treaties to the exercise of governmental action and administrative discretion. 
As a matter of principle, the Tribunal correctly recalled that, by virtue of the 
Constitution,  the  treaties  to  which  Italy  is  a  party  cannot  be  subject  to 

78 

79 

Italia 

'Diciotti:  procura  Catania  chiede  archiviazione  per  Conte,  Di  Maio  e  Toninelli' 
Reuters 
2019) 
(20 
<https://it.reuters.com/article/topNews/idITKCN1Q91Z6-OITTP>  accessed  19 
April 2019. 
It should be noted that the strictly criminal law aspects, including the soundness of 
the  criminal  charges  levied  against  the  Minister,  lie  outside  of  the  scope  of  the 
present  analysis,  which  focuses  only  on  the  aspects  of  the  request  to  Parliament 
which are relevant from the standpoint of international law. 

February 

80  For  the  text  of  the  request  for  authorization  to  proceed  see  Request  (n  41).  All 
charges against the other members of the government were instead dismissed on 
account that the alleged criminal conducts could not to be attributed to them: see 
'Diciotti: archiviazione per Conte, Di Maio e Toninelli' AdnKronos (21 March 2019) 
<https://www.adnkronos.com/fatti/politica/2019/03/21/diciotti-archiviazione-per-
conte-maio-toninelli_zzkKMI6DY7anUkeqC6KJlL.html?refresh_ce>  accessed 
10 April 2019. 
Italian Constitution, Article 96. 

81 

 
 
 
 
 
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National Courts and the International Rule of Law 

217 

derogation  by  decisions  of  either  Parliament  or  any  other  political 
authority.82  Article  117(1)  of  the  Italian  Constitution  indeed  provides  that 
'legislative power is exercised by the state and the regions in compliance with 
[…]  the  constraints  deriving  from  […]  international  obligations'.  The 
Constitutional  Court  has  interpreted  this  provision  as  meaning  that,  after 
incorporation, treaties possess a rank higher that ordinary legislation in the 
Italian hierarchy of norms.83 Consequently, the Tribunal of Catania affirmed 
that 
'[political]  discretion  in  the  management  of  migratory  flows  is 
constrained,  pursuant  to  the  Constitution  […]  [by]  the  norms  of  binding 
international treaties'.84 

While the above statements of principle may seem uncontroversial, the way 
in which the Tribunal applied them to the circumstances under its review is 
more  distinctive.  The  key  issue  with  which  the  Court  was  confronted  was 
whether  Minister  Salvini's  actions  with  regard  to  the  Diciotti  incident  fell 
within  the  legal  definition  of  kidnapping,  i.e.  an  'unlawful  deprivation  of 
physical liberty'.85 Having affirmed that deprivation of liberty which does not 
conform  to  the  requirements  of  international  law  must  be  considered 
unlawful,86  the  Court  embarked  on  an  examination  of  a  number  of 
international  legal  sources,  including  the  UNCLOS,  the  SOLAS  and  SAR 
Conventions, and the IMO Maritime Safety Committee Guidelines on the 
Treatment of Persons Rescued at Sea.87 This led it to conclude that, once the 

82  Request  (n  41)  at  9.  It  should  be  noted  that  the  principle  of  prevalence  of 
international treaties over ordinary laws was traced back by the Tribunal to Articles 
10,  11  and  117  of  the  Constitution.  In  fact,  only  the  referene  to  Article  117  is 
pertinent, while the other two provisions have no relevance for the domestic rank 
of treaties. 

83  Constitutional Court, Judgments Nos. 348 and 349 of 24 October 2007. 
84  Request (n 41) at 42 (translation by the author). 
85 

Ibid 27, quoting from Court of Cassation, Fifth Criminal Section, No. 19548/2013 
(in  the  original:  'illegittima  restrizione  della  […]  libertà  fisica').  The  crime  of 
kidnapping is provided for in Article 605 Italian Penal Code. 

86  Request (n 41) at 30. 
87 
Ibid 9-12 and 30-35. 

 
 
 
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ship was docked in the port, preventing disembarkation for two to five days 
constituted a violation of the international law of the sea.88 

A further interesting feature of the decision of the Tribunal of Catania relates 
to its treatment of the political connotation of the decision to close Italy's 
ports. The age-old problem of the intersection of politics and adjudication 
originates from a variety of considerations.  One such consideration, which 
falls  outside  the  scope  of  the  present  discussion,  relates  to  the  supposedly 
political nature of law itself. As is well known, a popular scholarly view sees 
international  legal  discourse  as  inherently  political,89  though  the  extent  to 
which this is the case is very much contested.90 Secondly, judicial decisions 
may have the effect of thwarting the choices of democratically elected organs: 
this  is  referred  to  as  'counter-majoritarian  difficulty'  in  US  legal  circles.91 
Thirdly, from the standpoint  of  the principle of  separation  of powers,  it is 
argued that some decisions should be taken by the legislature and executive 
only and not by the courts.92 In Italian judicial practice, this last concern has 
given  rise  to  the  doctrine  of  the  so-called  atto  politico,93  a  form  of  judicial 

88 

Ibid  32.  It  should  be  noted  that  the  Tribunal  of  Catania's  jurisdiction  did  not 
extend to the events between the rescuing of the migrants and the arrival in the 
port of Catania. Such events had instead been previously examined by the Tribunal 
of Palermo, in order to assess whether the Minister of the Interior had committed 
any crimes in that phase. Some excerpts contained in the decision of the Tribunal 
of Catania clarify that the Tribunal of Palermo (whose ruling has not been made 
public) held that no violations of international law had been committed until the 
Diciotti reached Catania: see ibid 5. 

90 

89  Martti Koskenniemi, From Apology to Utopia: The Structure of the International Legal 
Argument  (2nd  edn,  Cambridge  University  Press  2005);  David  Kennedy, 
International Legal Structures (Nomos 1987).  
James  Crawford,  Chance,  Order,  Change:  The  Course  of  International  Law  (AIL-
Pocket 2014) at 157-178. 
Francois  Venter, 
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 129. 

'The  Politics  of  Constitutional  Adjudication'  (2005)  65 

91 

92  Louis  Henkin,  'Is  There  a  "Political  Question"  Doctrine?'  (1976)  85  Yale  Law 

Journal 597. 

93  On which see, ex multis, Cesare Dell'Acqua, Atto politico ed esercizio di poteri sovrani 
(CEDAM 1983); Giuseppe Di Gaspare, Considerazioni sugli atti di governo e sull'atto 
politico: l'esperienza italiana e francese nello stato liberale (Giuffré 1984); Gabriele Pepe, 
'Il  principio  di  effettività  della  tutela  giurisdizionale  tra  atti  politici,  atti  di  alta 
amministrazione e leggi-provvedimento' (2017) 22 Federalismi.it. 

 
 
 
 
 
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National Courts and the International Rule of Law 

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abstentionism analogous to the US 'political question' doctrine or the French 
acte de gouvernement.94 In the Marković case, for example, the Italian Court of 
Cassation  held  that  the  Italian  courts  had  no  jurisdiction  over  a  claim  for 
compensation brought against Italy by Serbian nationals whose relatives had 
been victims of the 1993 NATO bombing of Belgrade. The Court held that 
the conduct of hostilities by the executive branch constituted an atto politico 
and was thus outside the reach of judicial review.95 

The  problem  raised  by  the  'political  question'/atto  politico  doctrine  is 
essentially one of a tradeoff between separation of powers and the rule of law. 
In  shielding  political  acts  from  judicial  review,  this  doctrine  entails  an 
obvious  tension  with  the  idea  that  the  political  branches  should  be  held 
accountable  for  breaches  of  the  law.  This  also  applies  as  far  as  the  IRL  is 
concerned.  Indeed,  when  the  'political  question'  doctrine  is  applied  to  the 
field of foreign affairs, it constitutes one of the typical 'avoidance doctrines' 
used  by  courts  to  refrain  from  applying  international  law  in  politically 
sensitive  cases.  As  such,  it  has  been  criticized  as  severely  limiting  the 
effectiveness of international law within domestic legal orders: in practice, it 
may  lead  any  international  law  claim  against  the  government  to  fail  on 
procedural grounds.96 

In the present case, one of the issues before the Court was whether the acts 
of  the  Minister  could  be  subject  to  judicial  review  even  though  they  were 
expressions of a political decision by the executive. The prosecutor argued 
that  the  facts  under  scrutiny  constituted  a  legitimate  political  choice,  not 
subject  to  judicial  review  on  account  of  the  principle  of  separation  of 
powers.97 However, the Court struck the balance between the prerogatives 

94 

95 

James Crawford, Brownlie's Principles of Public International Law (Oxford University 
Press 2012) at 83-87 and 103-110. 
Presidency of the Council of Ministers v Markovic and ors, Order No. 8157 of 8 February 
2002, ILDC 293 (IT 2002). For the doctrine's classic restatement in the US legal 
system, see Baker v Carr, 369 US 186 (1962). 

96  Benvenisti (n 22) at 169-170. See further Daniele Amoroso, 'Judicial Abdication in 
Foreign  Affairs  and  the  Effectiveness  of  International  Law'  (2015)  14  Chinese 
Journal of International Law 99. On the concept of 'avoidance doctrines' see also 
above Section II. 

97  Roberto  Bin,  'Halloween!  Il  Caso  Diciotti  e  il  fantasma  dell'atto  politico' 
2018) 

(laCostituzione.info, 

November 

1 

 
 
 
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{Vol. 12 No. 1 

of  the  political  branches  and  their  accountability  decisively  in  favor  of 
accountability. It stated that only acts laying down the governmental political 
agenda  in  a  general  and  abstract  way  can  be  free  from  judicial  review, 
mentioning,  by  way  of  example,  the  government's  request  for  a  vote  of 
confidence or the management of foreign relations. By contrast, this does not 
apply  to  political  decisions  which  have  the  capacity  to  directly  impinge  on 
individual rights.98 

Such a restrictive understanding of the notion of atto politico – as well as the 
ensuing  enhancement  of  governmental  accountability  – 
is  certainly 
commendable  from  the  standpoint  of  the  IRL.  It  also  appears  reasonable 
from the standpoint of domestic constitutional law. As a matter of fact, the 
Court proved to be well aware of separation of powers concerns and did not 
rule out that certain areas of governmental action may lie outside the realm 
of judicial scrutiny. It simply limited such an exemption to those decisions 
that the Constitution expressly allocates to the legislature and executive only. 
This approach distances itself from the Marković precedent, and with good 
reason:  with  regard  to  that  case,  it  had  been  noted  in  the  literature  that 
specific military actions 'are not to be considered as political decisions, but 
rather as executive activities undertaken in the implementation of a previous 
political decision' and should thus be amenable to judicial review.99 What the 
Italian Constitution does entrust to the parliament, which also confers upon 
the executive the necessary authority in this field, is the authority to decide 
to engage in military operations, so that, as a consequence, only such political 
decisions  may  not  be  subject  to  judicial  scrutiny.100  Mutatis  mutandis,  the 

<https://www.lacostituzione.info/index.php/2018/11/01/halloween/>  accessed  19 
April 2019. 

98  Request (n 41) at 48. 
99  Micaela Frulli, 'When are States Liable towards Individuals for Serious Violations 
of  Humanitarian  Law?  The  Marković  case'  (2003)  1  Journal  of  International 
Criminal Justice 406, at 411-412. 

100  Ibid. For critical views of the 'political question' doctrine from the standpoint of 
constitutional law see further Jonathan I. Charney, 'Judicial Deference in Foreign 
Affairs' (1989) 83 American Journal of International Law 805, at 806-807, noting 
that the idea that the judiciary should play no role in the area of foreign affairs is an 
unproven  assumption;  and,  with  regard  to  Italy,  Francesco  Bilancia,  'Ancora 
sull'"atto politico" e sulla sua pretesa insindacabilità giurisdizionale. Una categoria 
AIC, 
tradizionale 

tramonto?' 

Rivista 

(2012) 

al 

 
 
 
 
 
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National Courts and the International Rule of Law 

221 

Tribunal  of  Catania's  approach  to  the  notion  of  atto  politico  seems  to  fall 
squarely within this approach. Furthermore, the 'political question' doctrine 
is not the only way of safeguarding the prerogatives of the political branches 
from judicial encroachment. A restrictive understanding of that doctrine may 
well combine with other means of protecting the separation of powers, such 
as the adoption of techniques of judicial review of variable intensity. These 
may  include  resorting  to  the  (broader)  'unreasonableness'  test  or  to  the 
(stricter) proportionality test.101 

In light of the above, the response of the Italian judiciary to the governmental 
breaches of international law in the context of the Diciotti affair might appear 
to be a textbook confirmation of the view of national courts as guardians of 
the  IRL.  From  an  institutional  standpoint,  Italian  courts  are  certainly 
independent  and  empowered  by  domestic  law  to  apply  international  law, 
whose  municipal  hierarchical  rank  is  moreover  higher  than  ordinary 
legislation. In the course of the Diciotti case, the courts showed no proclivity 
for the protection of executive policies, nor did they overtly or covertly resort 
to any 'avoidance doctrines' with a view not to enforcing international law. 
On  the  contrary,  the  Tribunal  of  Catania  was  willing  to  use  the  relevant 
international norms as standards of review of the legality of executive action. 
And this was not limited to reparation claims against the state, but the courts 
even attempted to hold members of the executive individually liable from a 
criminal  standpoint.  All  the  elements  would  seem  to  be  in  place  for 
effectively  ensuring  respect  for  the  IRL,  along  the  lines  of  what  the 
'internationalist model' suggests. 

<https://www.rivistaaic.it/images/rivista/pdf/F.%20Bilancia.pdf>  accessed  12  July 
2019. Different considerations apply to cases where a constitution expressly rules 
out judicial review of governmental action; but this  is a rare occurrence. See e.g. 
Art.  19(3)  of  the  Hong  Kong  Basic  Law:  'The  courts  of  the  Hong  Kong  Special 
Administrative Region shall have no jurisdiction over acts of state such as defence 
and foreign affairs'. 
101  Amoroso (n 96) at 123-124. 

 
 
 
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2. The Limits of National Courts: Structural and Functional  Obstacles to Holding 
Governments Accountable 

But  this  is  not  the  whole  story.  Indeed,  the  Diciotti  case  also  allows  us  to 
identify possible shortcomings of the 'internationalist model', highlighting at 
least  three  reasons  for  caution  as  regards  national  courts'  capacity  to 
contribute to the IRL. These reasons concern: (i) the relationship between 
domestic and international rule of law; (ii) the effectiveness of the remedies 
provided  by  national  courts;  and  (iii)  the  issues  relating  to  national  courts' 
international law expertise. The first two points are more substantial in that 
they relate to structural limitations on the role of national courts, i.e. they are 
legal  framework.  As  a 
constraints  originating  from  the  domestic 
consequence, a national court normally has no power to overcome them. The 
third point instead concerns a functional limitation on the courts' ability to 
effectively apply international law, i.e. a difficulty produced by the court itself 
and specific to a concrete case.102 

A first issue highlighted by the Diciotti case is that conflating the IRL and the 
domestic  rule  of  law  comes  at  the  risk  of  some  oversimplification.103  As  a 
matter  of  fact,  what  the  two  concepts  require  may  very  well  diverge  in 
practice,  even  in  cases  where  there  is  a  substantive  overlapping  between 
international law and national law. Consider the criminal prosecution against 
the  Minister  of  the  Interior.  As  noted  above,  the  Tribunal  of  Catania 
requested parliament to authorize the prosecution to proceed, on the basis 
that  the  Constitution  necessitates  such  an  authorization.  However, 
Parliament  eventually  refused  to  grant  authorization,  thus  barring  the 
enforcement  of  (domestic  and)  international  law  against  members  of  the 
executive.104 Was parliament's refusal compliant with the rule of law? If only 
one notion of the rule of law existed, the answer to this question would be 

102  See Sharon Weill, The Role of National Courts in Applying International Humanitarian 

Law (Oxford University Press 2014) at 180. 

103  On this equivalence, see Nollkaemper (n 1) at 3. See further above Section II. 
104 

'Diciotti: il Senato nega l'autorizzazione a procedere per Salvini' Ansa (20 March 
2019) 
<http://www.ansa.it/sito/notizie/politica/2019/03/19/diciotti-in-aula-al-
senato-il-voto-su-salvini-diretta_e77b11bc-d840-4f9f-b49f-424054ca8167.html> 
accessed 19 April 2019. 

 
 
 
 
 
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National Courts and the International Rule of Law 

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unequivocal.  Arguably,  however,  such  an  evaluation  varies  depending  on 
whether one adopts an international law or a domestic law perspective. 

From  the  standpoint  of  the  IRL,  parliament's  vote  cannot  but  be  judged 
negatively,  in  that  it  stood  in  the  way  of  governmental  accountability  for 
violations of international law and effectively diminished the courts' ability 
to act as agents for the promotion of the IRL. Conversely, from the viewpoint 
of  the  domestic  rule  of  law,  there  is  simply  no  accountability  gap. 
Parliament's refusal to authorize prosecution belongs to the physiology of the 
domestic  legal  system.  Indeed,  Article  9(3)  of  Constitutional  Law  No  1  of 
1989, whose legal value in the Italian legal system is equal to the Constitution, 
provides  that  parliament  may  deny  the  authorization  to  proceed  if  it 
considers  that  the  Minister  acted  'for  the  protection  of  a  constitutional 
interest of the State or for the pursuit of a pre-eminent public interest in the 
exercise of the function of Government'. Parliament's decision is expressly 
qualified  as  not  subject  to  external  review.  Thus,  it  is  the  domestic 
constitutional framework itself which allows for violations of the law when 
they are directed at pursuing prominent public interests, and this decision is 
bestowed  on  parliament  only.  This  may  offer  support  to  the  view  that 
national courts are first and foremost bound to the promotion of the domestic 
rule of law.105 They may also promote the IRL when the two concepts happen 
to  coincide;  however,  where  the  IRL  and  the  domestic  rule  of  law  set 
differing  standards  –  as  may  well  be  the  case  –  the  former  is  inevitably 
destined to give way. 

The failure of the Diciotti prosecution also provides a second insight into the 
structural limits faced by national courts in the application of international 
law. The 'internationalist model' is premised on the idea that domestic courts 
can  provide  international  law  with  effective  mechanisms  of  enforcement. 
However, there may be a risk of overstating the effectiveness of the remedies 
that  domestic  law  can  provide.  National  courts  normally  intervene  ex  post 
facto  and  their  intervention  is  often  confined  to  the  area  of  monetary 
compensation. While this may ensure redress  for the victims, it is hardly a 

105  Benvenisti and Downs (n 25) at 61. See further above Section II. 

 
 
 
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means which can effectively alter state policies challenging the IRL and avoid 
breaches of international law.106 

Notably, while the civil case against the Italian government for breaches of 
international law occurred during the Diciotti incident is still pending, Italy's 
policies of migration containment (particularly the 'closed ports policy') have 
continued  unaltered,107  thus  creating  the  risk  of  new  violations  of 
international  migration  law.  This  situation  is  not  surprising.  A  civil  case 
brought against the state as a whole, where claimants ask for modest amounts 
of  compensation,108  is  hardly  a  powerful  incentive  to  avoid  breaches  of 
international  law  –  even  more  so  for  governments  feeding  on  migration 
control  for  political  gains.  The  Diciotti  prosecution  was  an  attempt  by  the 
Italian  courts  to  turn  the  tables,  in  that  holding  members  of  the  executive 
individually liable for breaches of international law is certainly a much more 
effective means to condition future state policies and avoid further breaches 

106  Importantly,  there  are  relevant  exceptions  where  national  courts  can  prevent 
breaches of international law from occurring. The most relevant exception occurs 
in situations where courts can alter domestic legislation, e.g. by declaring domestic 
statutes inconsistent with international law to be null and void. This may happen 
in  the  Italian  legal  order,  where  the  Constitutional  Court  can  quash  statutes 
conflicting with either general international law (see Italian Constitutional Court, 
Judgment  No.  131  of  15  May  2001)  or  international  treaties  (see  Italian 
Constitutional  Court,  Judgments  No.  348  and  349  of  24  October  2007).  But  of 
course this remedy is only able to prevent breaches of international law which are 
directly produced by legislation. This was not the case with the Diciotti incident, 
where the breaches of international law were caused by acts of government. In yet 
other  cases,  national  courts  do  not  merely  intervene  ex  post  facto  but  may  order 
cessation of an ongoing illegal act (e.g. an unlawful detention). But again, this was 
not the case for the Diciotti migrants, whose deprivation of liberty was not subject 
to any judicial review. 

Ansa 

107  As  of  September  2019,  the  'closed  ports  policy'  is  being  reconsidered  in 
consequence  of  a  change  of  government:  see  'Conte  migrant  summit  with 
Lamorgese' 
2019) 
(12 
<http://www.ansa.it/english/news/world/2019/09/12/conte-migrant-summit-with-
lamorgese_26afc861-3988-40fe-b9be-d5a0d5e74b69.html> accessed 17 September 
2019. 
In  the  civil  case  before  the  Tribunal  of  Rome,  the  41  appellants  asked 
compensation ranging from around 1000 to 1700 euros per migrant: see the appeal 
(n 77) at 33. 

September 

108 

 
 
 
 
 
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National Courts and the International Rule of Law 

225 

of  international  law.  But,  as  the  case  at  hand  proves,  a  constellation  of 
procedural obstacles may make this option impracticable. Therefore, there 
appears  to  be  an  intrinsic  limit  to  the  powers  of  national  courts.  Their 
primary role is to provide remedies for breaches that have already occurred,109 
not to guarantee compliance with international obligations in the first place. 

In addition to the above structural problems, another difficulty arises from 
the fact that the Tribunal of Catania's analysis of international law betrayed 
a serious lack of international law expertise. Had the Parliament allowed the 
criminal case to proceed, these flaws might have proven to be serious hurdles 
in  the  subsequent  stages  of  the  trial.  This  confirms  the  scholarly  warnings 
that an insufficient knowledge of international law among judges frequently 
proves to be a significant obstacle to the implementation of international law, 
perhaps not less relevant than large-scale institutional deficits in a country's 
domestic law.110 

There were two main weaknesses in the way the Tribunal of Catania handled 
the  crucial  issue  of  the  unlawfulness  of  the  deprivation  of  liberty.  First,  it 
assumed too much with regard to violations of the law of the sea. The Court 
found a breach of international law in the refusal by the Italian authorities to 
formally answer to the Diciotti's request for a place of safety.111 However, the 
Conventions do not set forth any such obligation. They merely require the 
rescued people to be brought to a location which meets the required standard 

109  David  Sloss,  'Domestic  Application  of  Treaties',  in  Duncan  B.  Hollis  (ed),  The 
Oxford Guide to Treaties (Oxford University Press 2012) 367, at 392-393, noting that 
if  executive  officials  correctly  interpret  and  apply  international  law  a  corrective 
intervention by national courts may not be needed in the first place. 

110  Many  authors  have  noted  that  a  deficient  application  of  international  law  in 
domestic legal systems may stem from a  lack of familiarity of judges and lawyers 
with  it,  or  from  the  courts'  unconscious  penchant  for  domestic  law.  See  e.g. 
Huneeus  (n  28)  at  134-135;  Harold  H.  Koh,  'Why  the  President  (Almost)  Always 
Wins  in  Foreign  Affairs  –  Lessons  on  Iran-Contra  Affair'  (1988)  97  Yale  Law 
Journal 1255, at 1315-1316, noting the importance of the background and personality 
of  judges;  Bakhtiyar  R.  Tuzmukhamedov,  'International  Law  in  the  Russian 
Constitutional  Court'  (2000)  94  American  Society  of  International  Law 
Proceedings 166, at 170, citing as hearsay the case of a US judge who refused to apply 
the ICCPR 'because he had never heard of it'. 
Ibid 31. 

111 

 
 
 
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of safety, not that such location should be expressly and formally designated 
as  a  'place  of  safety'  under  the  terms  of  the  treaty.112  Second,  and  more 
importantly,  the  Court  only  analyzed  the  international  law  of  the  sea  and 
failed to consider the international obligations in the field of human rights 
law, particularly those arising from the ECHR. However, as seen above, the 
jurisprudence  of  the  ECtHR  is  directly  concerned  with  the  notion  of 
unlawful  deprivation  of  liberty,  and  thus  would  have  constituted  a  much 
sounder  basis  on  which  to  affirm  that  international  obligations  had  been 
breached.113 This failure is all the more surprising when considering that the 
Court did mention the ECtHR Khlaifia v Italy judgment in another passage 
of its decision, but merely in order to sustain the (rather obvious) principle 
that inviolable human rights should be recognized also to illegal migrants.114 

Of course, one should be cautious to draw general conclusions from specific 
cases where courts showed a lack of international law expertise. Where the 
misapplication of international law derives simply from negligence or careless 
methodology,  the  issue  may  perhaps  be  brushed  off  by  blaming  domestic 
judges  for  lack  of  professionalism.  However,  national  courts'  frequent 
ignorance of international legal regimes appears to raise a more profound and 
systemic red flag. Even where all the institutional conditions required under 
an  'internationalist  model'  for  national  courts  to  function  as  agents  of  the 
international legal order are realized – jurisdiction, independence, ability to 
apply international law, and standing – one should not simply expect national 

112  The reason for such a misreading of the IMO Conventions lies in the fact that, in 
order to identify the relevant international obligations, the Court also relied on a 
non-binding document by the Italian Ministry of Infrastructure and Transport and 
the Italian Coast Guard containing the standard procedures for the identification 
of places of safety in the management of migratory flows: see 'Procedure operative 
standard per l'individuazione del "POS – place of safety" nell'ambito di operazioni 
flussi  migratori  via  mare',  SOP  009/15, 
SAR  connesse  all'emergenza 
<https://www.lastampa.it/rw/Pub/Prod/PDF/Standard%20Operating%20Proced
ure.pdf> (in  Italian) accessed 19 April 2019. Because this document was adopted 
with a view to implementing the obligations flowing from the international law of 
the sea, the Court seemingly assumed that its contents were fully consonant with 
such obligations. But the procedural aspects of this regulation are of purely internal 
relevance and find no correspondence in the Conventions. 
See above Section II. 
114  Request (n 41) at 43. 

113 

 
 
 
 
 
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National Courts and the International Rule of Law 

227 

courts to start acting as a 'a conveyor belt that delivers international law to 
the people'.115 Similarly, also the courts' willingness to apply international law 
may not suffice.116 The Court in the Diciotti case misconstrued international 
law despite being both institutionally empowered and clearly willing to apply 
it. 

In  concreto,  in  order  to  solve  this  issue,  it  may  prove  necessary  to  actively 
provide  national  courts  with  the  necessary  expertise,  and  this  may  require 
support  from  other  agencies  of  the  state.  Just  by  way  of  example,  many 
domestic legal systems confront this issue by promoting better legal training 
and  information  or  by  adopting  legislation  implementing  or  reproducing 
international norms which would be already part of national law.117 At other 
times, national courts may rely on the executive's expertise for ascertaining 
the content of international law or for its interpretation. This form of judicial 
deference  in  international  legal  matters  is  normally  criticized  by  the 
proponents  of  the  'internationalist  model'  as  an  undue  interference  by 
executives  in  judicial  affairs,  as  if  it  would  necessarily  diminish  the 
international  legal  function  of  national  courts.118  While  this  opinion  is 
certainly justified in cases where courts are  obliged to conform to executive 

115  Knop (n 27) at 505. 
116  The relevance of the national courts' willingness to apply international law to the 
maximum  extent  allowed  by  their  own  domestic  legal  order  is  stressed  by 
Benedetto  Conforti  (Massimo  Iovane  ed),  Diritto  internazionale  (11th  end, 
Editoriale Scientifica 2018) at 8. 

117  Gennady  M.  Danilenko,  'Implementation  of  International  Law  in  CIS  States: 
Theory  and  Practice'  (1999)  10  European  Journal  of  International  Law  51,  at  56; 
Sloss (n 109) at 375-376. 

118  The  term  judicial  deference  is  generally  used  to  describe  all  situations  where 
national courts, 'out of respect for the legislature or the executive […] decline to 
make their own judgment on a particular issue': see Richard Clayton, 'Principles for 
Judicial Deference' (2006) Judicial Review 109, at 109. See Conforti, International 
Law (n 14) at 17-20, advocating the disposal of all forms of judicial deference to the 
executive; Pierre Pescatore, 'Conclusion', in Francis G. Jacobs and Shelley Roberts 
(eds),  The  Effect  of  Treaties  in  Domestic  Law  (Sweet  &  Maxwell  1987)  273,  at  277, 
arguing that judicial deference to the executive in treaty interpretation 'cannot be 
reconciled with the very idea of the rule of law'. 

 
 
 
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interpretation,119 national courts' insulation from their domestic institutional 
environment  is  not  necessarily  a  condition  to  be  hoped  for.  Independent 
national  courts  can  get  it  wrong,  as  the  Diciotti  case  shows.  And  if  some 
institutional support from other state agencies, including the executive, can 
enable them to obtain a better knowledge of international law, it is hard to 
see how that would not be a positive outcome for the IRL.120 

V. CONCLUSION 

The  foregoing  consideration  of  the  Diciotti  incident  gives  a  mixed  picture 
regarding  national  courts'  capacity  to  contribute  to  supporting  the  IRL. 
Some  elements  certainly  give  reasons  to  trust  in  national  judiciaries.  The 
governmental breaches of international law committed in the course of the 
incident entailed two strands of cases, one civil and the other criminal, before 
the  Italian  courts.  Regarding  the  criminal  case,  the  competent  court,  the 
Tribunal of Catania, confirmed the charges brought against the Minister of 
the Interior and asked parliament to authorize a trial, as required under the 
Italian Constitution. The principles espoused by the Tribunal of Catania in 
its 
especially  notable.  The  Court 
uncompromisingly  stated  that  international  law  constitutes  a  limit  to  the 
exercise  of  political  and  administrative  discretion  in  the  management  of 
migratory flows. It also discarded the argument that the governmental choice 
to  'close'  Italy's  ports  was  not  subject  to  judicial  review  by  reason  of  its 
political  nature.  The  Court  instead  construed  the  notion  of  'political 
question'  restrictively  and  affirmed  that  any  decision  of  the  political 

to  parliament 

request 

are 

120 

119  Notably,  the  French  practice  to  reserve  treaty  interpretation  to  the  Minister  of 
Foreign  Affairs  was  found  by  the  European  Court  of  Human  Rights  to  be 
illegitimate,  because  in  violation  of  the  right  to  access  to  an  independent  and 
impartial tribunal: see Beaumartin and Others v France, App No 15287/89 (ECtHR 24 
November 1994). 
Julian Arato, 'Deference to the Executive. The US Debate in Global Perspective', 
in Helmut Philipp Aust and Georg Nolte (eds),  The Interpretation of International 
Law by Domestic Courts: Uniformity, Diversity, Convergence (Oxford University Press 
2016)  198,  particularly  at  213,  noting  that  'a  degree  of  interpretive  discretion  for 
national  executives  may  be  a  good  thing  for  the  international  legal  order'.  For  a 
similar position in the context of the UK Human Rights Act 1998, see Alison L. 
Young, 'In Defence of Due Deference' (2008) 72 Modern Law Review 554. 

 
 
 
 
 
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National Courts and the International Rule of Law 

229 

authorities can be subject to judicial review as long as as it directly compresses 
individual rights. 

However,  other  elements  of  the  Diciotti  affair  suggest  that  some  degree  of 
caution  is  required.  Firstly,  the  courts'  capacity  to  hold  the  government 
accountable for its breaches of international law was limited by parliament's 
vote  barring  the  hearing  of  the  criminal  case.  This  outcome,  which  is 
consistent  with  the  Italian  Constitution,  highlights  that  the  IRL  and  the 
domestic rule of law cannot be easily conflated. What is desirable from the 
standpoint  of  the  former  may  run  counter  to  the  domestic  constitutional 
framework and, thus, to the domestic rule of law. Secondly, the case at hand 
shows that the effectiveness of national courts' tools to enforce international 
law should not be overstated, particularly because national courts normally 
intervene  in  the  remedial  phase  and  may  not  be  capable  of  guaranteeing 
compliance  with  international  law  in  the  first  place.  The  cases  initiated 
before the Italian courts produced no tangible effects on the governmental 
policies of migration containment from which the Diciotti incident, and the 
ensuing  breaches  of  international  law,  originated.  Thirdly,  the  lack  of 
international law expertise shown by the Tribunal of Catania when dealing 
with the events of the Diciotti suggests that national courts may be unable to 
correctly  apply  international  law  even  where  they  are  both  institutionally 
empowered and willing to do so. It might perhaps be advisable, therefore, to 
reconsider the view that national courts' insulation from other state branches 
is a necessary precondition for them to contribute to the IRL. 

All things considered, the Diciotti affair seems to offer some support for the 
view  that  one  should  not  put  unlimited  trust  in  the  power  of  national 
judiciaries to enforce international law against unruly governments. While it 
is  undeniable  that  they  perform  an  important  international  legal  function, 
they cannot be a panacea for all international law violations, not only because 
they  cannot  normally  prevent  breaches  of  international  law,  and  mainly 
intervene in a remedial phase, but also because their remedial powers can be 
severely  constrained  by  limitations  set  forth  in  domestic  law.  Briefly  put, 
national  courts  are  valuable  yet  imperfect  systemic  instruments  for  the 

 
 
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{Vol. 12 No. 1 

IRL.121 Difficult though  it  may  be,  state compliance  with international law 
normally requires efforts on the part of the state machinery as a whole. 

121 

In these terms see Amoroso (n 96) at 133-134. 

 
 
 
 
 
 
BOOK REVIEWS 

ROB VAN GESTEL AND ANDREAS LIENHARD (EDS),  
EVALUATING ACADEMIC LEGAL RESEARCH IN EUROPE. THE ADVANTAGE 
OF LAGGING BEHIND (EDWARD ELGAR 2019) 

Olga Ceran* 

Some time ago, Anna Krisztian and I were writing an editorial for an issue of 
the  European  Journal  of  Legal  Studies  (EJLS).  In  one  of  the  very  first 
sentences,  we  wrote  that  the  EJLS  aspires  'to  contribute  to  a  scholarly 
communication of the highest academic standard'.1 But it felt uncomfortable. 
Managing a multilingual journal makes one fully aware of the very different 
academic  traditions  authors  come  from.  What  'high  quality'  means  in  the 
context of scholarly publications, and even a basic understanding of what an 
'academic article' looks like, are neither clear-cut nor set in stone. In the end, 
that  sentence  gained  a  new  addition  -  'as  we  know  it'.2  What  'the  highest 
academic  standard'  means  to  us,  the  authors  of  the  editorial,  might  not  be 
universal. And we did not want to suggest otherwise.  

The  lack  of  clarity  when  it  comes  to  quality  standards  in  academic  legal 
research,  especially  in  a  transnational  context,  was  exactly  what  prompted 
the  authors  of  the  book  discussed  here  to  commit  themselves  to  this  joint 
project. Evaluating Academic Legal Research in Europe. The Advantage of Lagging 
Behind, edited by Rob van Gestel and Andreas Lienhard,3 undertakes the – 

*  Doctoral  Researcher,  Department  of  Law,  European  University  Institute; 
Managing Editor and Media Coordinator at the European Journal of Legal Studies. 
The author is grateful to the anonymous reviewers for their comments on earlier 
versions  of  this  review.  All  mistakes  and  opinions  are  the  author's  own.  E-mail: 
olga.ceran@eui.eu. 

2 

1  Olga Ceran and Anna Krisztian, ‘From Inclusivity to Diversity: Lessons Learned 
from the EJLS’ Peer Review Process’ (2019) 11 European Journal of Legal Studies 1. 
Ibid. 
The eBook version is priced from £22/$31 from Google Play, ebooks.com and other 
eBook  vendors,  while  in  print  the  book  can  be  ordered  from  the  Edward  Elgar 
Publishing website. 

3 

EJLS 12(1), April 2020, 231-240 

 doi:10.2924/EJLS.2019.012 

 
 
 
 
 
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European Journal of Legal Studies  

{Vol. 12 No. 1 

not  easy – task of  providing information on what quality of academic legal 
research means throughout Europe: why and how academic legal research is 
currently  evaluated,  and  what  sorts  of  criteria,  indicators  and  assessment 
methods  are  being  applied.  The  authors  pose  a  number  of  questions:  what 
purposes does the research evaluation serve? Which methods are being used, 
and by what kinds of evaluators? What sorts of consequences are attached to 
the outcomes of the evaluations? To what extent are these methods, and their 
future, a topic of debate? 

The discussion about law's nature and identity as an academic discipline has 
been ongoing for years. Law has been described as  'a discipline in crisis',4 a 
'science at the crossroads'5 or 'the odd man out in the university'.6 Scholars in 
Europe  and  elsewhere  have  been  discussing  whether  –  and  how  –  legal 
scholarship could aspire to the status of a science, and what it would mean for 
its methods and quality standards,7 taking into account law's 'distinctiveness' 
– whatever that may mean.8 There has been a growing body of literature on 
the  internationalization  of  legal  education  and  scholarship,  and  the 
challenges  posed  by  those  processes.9  To  a  great  extent,  those  discussions 
build on what law schools and legal scholars produce; on their output in form 
of various publications, their evaluation, and the relation between evaluation 
and quality. Indeed, in many volumes touching upon the (future) nature of 
law  as  an  academic  discipline  one  can  find  contributions  on  publication 

4 

5 

6 

7 

8 

9 

Jan M Smits, The Mind and Method of the Legal Academic (Edward Elgar Pub 2012) 1. 
Ibid 6. 
CJJM  Stolker,  Rethinking  the  Law  School  Education,  Research,  Outreach  and 
Governance (Cambridge University Press 2014) 89. 
Rob  van  Gestel,  Hans-W  Micklitz  and  Edward  L  Rubin,  Rethinking  Legal 
Scholarship : A Transatlantic Dialogue (Cambridge University Press 2016). 
Smits (n 4); Stolker (n 6) 200–230. 
Jan Klabbers and MNS (Mortimer NS) Sellers (eds), The Internationalization of Law 
and Legal Education (Springer 2008); Christophe Jamin and William van Caenegem 
(eds), The Internationalisation of Legal Education (Springer International Publishing: 
Imprint:  Springer  2016);  Jan  M  Smits,  'European  Legal  Education,  or:  How  to 
Prepare Students for Global Citizenship?' (Social Science Research Network 2010) 
SSRN  Scholarly  Paper  ID  1719118  <https://papers.ssrn.com/abstract=1719118> 
accessed 20 April 2017. 

 
 
 
 
 
2020} 

Evaluating Academic Legal Research in Europe 

233 

fashions,10 evaluation strategies,11 or issues of management, accessibility and 
readership.12  

While  the  issues  of  assessment  practices  in  various  contexts  have  been 
discussed before,13 no legal scholar has attempted to address the question of 
what exactly the differences between different systems are, and what it means 
for  legal  scholarship  more  broadly.  As  such,  this  volume  is,  as  the  editors 
claim, the first book ever to attempt to analyse and compare quality criteria 
and research evaluation methods in the field of law in Europe. The authors 
do  not  attempt  to  take  sides  in  the  debate  about  the  nature  of  law  as  an 
academic discipline, or to promote a certain view on quality management in 
academia.14 Rather, based on the comparative overview of the legal and policy 
norms impacting the evaluation of academic legal research, they are tracing 
disagreements and potential convergence trends.15  

The  Introduction  is  engaging  and  does  well  at  providing  context  for  the 
debates. It constitutes a succinct but exhaustive overview of the literature on 
academic  evaluation  practices 
in  general,  the  debates  about  the 
(dis)advantages  of  peer  review  and  bibliometrics,  and  the  relationship 
between methodological accountability and quality of research. Against this 

10  Reza  Dibadj,  'Transatlantic  Publication  Fashions:  In  Search  of  Quality  and 
Methodology in Law Journal Articles' in Hans-W Micklitz, Edward L Rubin and 
Rob Van Gestel, Rethinking Legal Scholarship: A Transatlantic Dialogue (Cambridge 
University  Press  2017)  </core/books/rethinking-legal-scholarship/transatlantic-
publication-fashions/0F58B7E37EAEE7BA0280E65B41CEF99F> accessed 9 July 
2019. 

11  Rob  van  Gestel,  'Ranking,  Peer  Review,  Bibliometrics  and  Alternative  Ways  to 
Improve the Quality of Doctrinal Legal Scholarship' in Hans-W Micklitz, Edward 
L Rubin and Rob Van Gestel, Rethinking Legal Scholarship: A Transatlantic Dialogue 
(Cambridge  University  Press 
2017)  </core/books/rethinking-legal-scholar 
ship/ranking-peer-review-bibliometrics-and-alternative-ways-to-improve-the-
quality-of-doctrinal-legal-scholarship/879D67992FBD1FE7E7D5753125B1DA8F> 
accessed 9 July 2019. 
Stolker (n 6) 231–262. 
See, for example: Thierry Tanquerel and Alexandre Flückiger, L' Évaluation de La 
Recherche En Droit : Enjeux et Méthodes (Bruylant 2015). 

12 

13 

14  Rob van Gestel and Andreas Lienhard, Evaluating Academic Legal Research in Europe 

the Advantage of Lagging Behind (Edward Elgar Pub 2019) 14. 
Ibid 15. 

15 

 
 
 
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European Journal of Legal Studies  

{Vol. 12 No. 1 

background, the editors draw attention to those features of legal scholarship 
that are often seen as ultimately distinctive in comparison to other disciplines 
(for example the variety of publications addressing multiple audiences, such 
as courts, legislators, practitioners, and other academics). By doing so, they 
motivate a separate discussion on the evaluation of academic legal research, 
as undertaken in this book.  

The  volume  continues  with  a  collection  of  individual  reports  on  different 
academic  contexts,  including  the  United  Kingdom,  the  Netherlands, 
Germany,  Austria,  Switzerland,  Sweden,  Finland,  Italy,  France,  Spain, 
Slovenia, and the EU as a whole.16 The chapters focus on four situations in 
which  legal  publications  are  evaluated:  evaluations  of  law  faculties  and/or 
other research institutions; evaluations of legal research projects (ex-ante or 
ex-post);  evaluations  of  (academic)  legal  publications  by  publishers;  and 
evaluations of legal researchers in the context of tenure/promotion. Although 
specifically focusing on the evaluation of publications, the chapters generally 
provide  the  reader  with  much  more  information.  For  example,  when 
standards for PhD dissertations are discussed, knowledge about the process 
of PhD examination committees' appointments or the internationalization 
of PhD programmes is also presented.17 Additionally, every chapter includes 
a  brief  overview  of  institutional  frameworks  in  which  legal  education  and 
legal research function (e.g. whether there are private universities, and how 
this  might  reflect  on  the  quality  assessment),  and  sometimes  even  their 
historical  context.18  The  value  of  this  should  not  be  underestimated,  as  it 
allows  for  a  more  insightful  comparison  of  different  quality  management 
systems at the end of the book.  

The chapters generally follow a uniform outline, although not all categories 
are relevant for all of the countries discussed to the same degree. They are 
primarily descriptive, as the main objective of this explorative study was 'to 

16  The countries are listed in the order presented in the book.  
17 

See, for example, the chapter on Italy that introduces a reader to an additional PhD 
certification in this country – 'Doctor Europaeus' – that requires satisfying certain 
conditions above the 'normal' PhD requirements.  
See, for example, the chapter on Slovenia where Janja Hojnik mentions the impact 
of  the  dissolution  of  the  Former  Socialist  Yugoslav  Republic  on  the  –  suddenly 
considerably smaller – legal academic community in Slovenia.  

18 

 
 
 
 
 
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Evaluating Academic Legal Research in Europe 

235 

gather factual information instead of opinions'.19 Discussing such a relative 
concept  as  quality  in  the  context  of  national  academic  traditions  cannot 
however  fully  escape  some  subjectivity,  especially  where  there  is  little  data 
and relatively little discussion. In light of this, some rapporteurs had to draw 
from  anecdotal  evidence  and  confidential  interviews  with  colleagues,20  or 
refer  to  their  own  opinions  or  intuitions.21  This,  however,  does  not 
undermine  the  main  objective  but  rather  adds  additional  layers  to  the 
description, emphasizing the lack of an institutionalized reflection on quality 
standards of legal research in given countries. Despite that, all contributions 
achieve  a  great  depth  of  description.  Although  undoubtedly  providing 
considerable  academic  strength,  this  may  nevertheless  be  considered  a 
weakness by some readers, as certain audiences may find it difficult to follow 
the detailed descriptions of, for example, bibliometric evaluations. 

The chapter on the assessment of academic legal research in the EU context 
is  a  welcome  and  significant  addition  to  the  discussion.  While  most  other 
chapters  do  not  discuss  it  explicitly,22  there  is  no  doubt  that  research 
evaluation practices on the European level influence the strategic behaviour 
of  researchers,  and  therefore  also  affect  national  evaluation  frameworks. 
What gets highlighted in this context is that the European Research Council 
puts a lot of emphasis on methodological rigour of funded projects, which – 
with law being assimilated with other disciplines – constitutes a challenge for 
legal scholars. Further, legal scholars should be aware of the tension between 
the requirement of 'scientific excellence', by many understood as clarity of a 
research  problem  and  methodological  rigour,  and  the  search  for  novel  and 
ground-breaking  research,  as  well  as  the  discrepancies  in  geographical  and 
institutional  allocation  of  grants  –  with  researchers  from  institutions 
perceived as of high quality receiving more funding.  

While this tension is true for all scientific fields, the lack of methodological 
uniformity  within  the  legal  field  poses  additional  challenges  and  could 
potentially reinforce this effect. What is not discussed in the book, but which 
may  perhaps  gain  importance  in  the  future,  is  the  indirect  evaluation  of 

19  Van Gestel and Lienhard (n 14) 15. 
20 

21 

See, for example, the chapter on Germany: Ibid 89. 
See, for example, the chapter on Spain: Ibid 302. 
22  The chapter on Sweden is, for instance, an exception. 

 
 
 
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research  institutions  at  the  EU  level.  For  example,  this  happens  already  in 
relation  to  the  Erasmus  Mundus  Joint  Master  Degrees  or  Doctorates,23 
where consortiums of law schools and/or legal faculties also have to compete 
with other institutions, including those of other academic fields.24  

The last chapter of the book, 'Conclusion and discussion', is divided into two 
parts. The Conclusion serves as a very good summary of the chapters' main 
points, juxtaposing the rich information on the different countries together. 
The  Discussion  offers  deeper  insight  into  evaluation  of  legal  academic 
research in Europe, resulting from the comparison of national policies and 
practices. Following the same outline as the individual chapters, the editors 
offer  some  food  for  thought  regarding  the  future  of  the  evaluation  of  legal 
scholarship.  While  the  efforts  undertaken  in  this  book  were  envisaged  as 
explorative,  the  authors  do  not  shy  away  from  posing  bold  questions 
regarding what measuring research quality means for law as a discipline, and 
legal education, on a more fundamental level. What do our evaluation choices 
mean for academic values such as integrity and freedom of research? Do legal 
scholars perform better if they are constantly evaluated? Should all  areas of 
legal scholarship be evaluated the same way? Would it be better if European 
law  schools  competed  on  a  transnational  level  according  to  harmonized 
assessment standards? Should European legal journals have a uniform format 
for academic articles, and is it even feasible?  

These  questions  all  build  upon  the  underlying  idea  of  the  book:  law's 
'advantage  of  lagging  behind'.25  While  other  disciplines  struggle  with  their 

23  The  main  objective  of  the  EMJMD  programme  is  to  attract,  select,  and  fund 
excellence,  understood  i.a.  in  terms  of  academic  quality  of  the  participating 
organisations. See: 'Erasmus+ Programme Guide 2019' (the European Commission 
2019)  295  <https://ec.europa.eu/programmes/erasmus-plus/resources/documents/ 
erasmus-programme-guide-2019_en> accessed 7 March 2019. 

24  And  indeed  –  similarly  to  research  projects  –  law  degrees  are  relatively  few 
compared to other disciplines. See, for example: the European Master In Law And 
Economics; the Law, Science and Technology Joint Doctorate; or the European 
Joint  Doctorate  in  Law  and  Development  (in  which  participating  institutions 
come also from outside of Europe).  

25  This is not the first time when Rob van Gestel talks about 'the advantage of lagging 
behind'. See, for example: Van Gestel, Micklitz and Rubin (n 7) 355; Tanquerel and 
Flückiger (n 13) 32, 48–53. 

 
 
 
 
 
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Evaluating Academic Legal Research in Europe 

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increasingly complex evaluation practices, quality standards and evaluation 
benchmarks  in  law  are  –  still  –  often  implicit.  As  such,  on  their  quest  to 
establish  more  transparent  quality  indicators,  legal  scholars  can  learn  from 
the  mistakes  made  elsewhere,  especially  in  humanities  and  other  social 
sciences.  Law,  as  a  discipline  lagging  behind,  still  has  the  advantage  of 
addressing the questions posed above in a proactive manner. Therefore, the 
authors  of  this  volume  believe  that  there  should  be  a  strong  internal  drive 
within the discipline to respond to current challenges.26 Otherwise, law will 
continue to be looked upon by other disciplines with suspicion, and risks that 
"foreign" quality standards will be imposed upon it.  

The book,  keeping in mind its explorative nature,  is certainly successful in 
making its case. What it does outstandingly well is the presentation of the 
interdependency of many evaluation situations, and the interactions between 
national and transnational levels. With different quality indicators employed 
by different evaluators (universities, publishers, funding bodies, governments 
– not only on the national level), it demonstrates why and how legal academics 
have  to  make  strategic  decisions  regarding  their  career  and  publication 
choices. None of the elements of these systems functions in a vacuum, and in 
an  increasingly  transnational  academic  world  mutual  trade-offs  are  a  must. 
On the other hand, this can be frustrating and difficult to navigate, and does 
not  necessarily  contribute  to  the  quality  of  research  outputs.  This  both 
explains  and  justifies  the  book's  main  argument  that  the  current  state  of 
affairs calls for a revision.  

The  book  follows  previous  research  projects  on  the  evaluation  of  legal 
research undertaken in the Netherlands and Switzerland. The rich expertise 
of the editors when it comes to issues of legal education, legal publishing and 
evaluation of legal research is clearly shown both in the Introduction and in 
the concluding chapter.27 They should also be commended for their selection 

26  Van Gestel and Lienhard (n 14) 12. 
27  Van Gestel, Micklitz and Rubin (n 7); Rob Van Gestel, Karin Byland and Andreas 
Lienhard, 'Evaluation of Legal Research: Comparison of the Outcomes of a Swiss 
and Dutch National Survey' (2018) 23 Tilburg Law Review; Rob Van Gestel, Sense 
and Non-Sense of a European Ranking of Law Schools and Law Journals (2015); Rob Van 
Gestel and Jan Vranken, Assessing Legal Research: Sense and Nonsense of Peer Review 
versus  Bibliometrics  and  the  Need  for  a  European  Approach  (2011);  Martin  Schmied, 
Karin  Byland  and  Andreas  Lienhard,  'Procedures  and  Criteria  for  Evaluating 

 
 
 
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{Vol. 12 No. 1 

of  countries  and  national  rapporteurs,  and  their  clear  explanation  of 
methodological choices in this regard.28 It is especially praiseworthy that they 
attempted to include both "new" and "old" EU countries, as well as non-EU 
countries, and to strike a balance between Northern and Southern countries. 
However,  although  the  book  claims  to  have  reached  a  balanced 
representation of jurisdictions, with the exception of Slovenia, Central and 
Eastern  Europe  still  seems  to  be  underrepresented  in  the  analysis.  In  that 
context, one could also wonder to what extent Austria can still be said to be a 
"new"  EU  Member  State,  especially  as  Finland  and  Sweden  –  that  also 
acceded to the EU in 1995 – are not being described this way. 

While Central and Eastern Europe can be expected to share some common 
features  and/or  problems  with  other  European  countries,  there  are  certain 
elements  that  make  the  region  different.  Importantly,  one  must  take  into 
account its common historical heritage and related structural problems of the 
higher education sector,29 such as the selection of young academics 'based on 
their ability to understand and obey the informal omertà of the system, rather 
than on scientific merits'.30 The strong distrust in public experts, often seen 
as a common feature of post-socialist countries where funding of research was 
for  years  subordinated  to  political  decisions  rather  than  dependant  on  any 

28 

Academic Legal Publications: Results of a Survey in Switzerland' (2018) 27 Research 
Evaluation  335;  Andreas  Lienhard  and  others,  'L'evaluation  de  La  Recherche  En 
Droit En Suisse' in Thierry Tanquerel and Alexandre Flückiger (eds), L' évaluation 
de la recherche en droit : enjeux et méthodes (Bruylant 2015). 
Following the order of presentation in the book, individual chapters were written 
by: Daithi Mac  Sithigh  (the  United  Kingdom),  Rob  van  Gestel  and  Marnix  Snel 
(the Netherlands), Kai Purnhagen and Niels Petersen (Germany), Elisabeth Maier 
(Austria),  Andreas  Leinhard,  Karin  Byland  and  Martin  Schmied  (Switzerland), 
Antonina Bakardjieva Engelbrekt (Sweden), Pia Letto-Vanamo (Finland), Ginevra 
Peruginelli  (Italy),  Delphine  Costa  (France),  Albert  Ruda  (Spain),  Janja  Hojnik 
(Slovenia), and Marnex Snel (the EU level).  

29  Antal  Szerletics  and  Lidia  Rodak,  'Introduction:  Legal  Education  in  Europe. 
Challenges and Prospects' (2017) 7 Challenges and Prospects (December 13, 2017). 
Oñati Socio-Legal Series 1584. 
Ibid 1585. 

30 

 
 
 
 
 
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Evaluating Academic Legal Research in Europe 

239 

evaluation  of  performance,31  had  significant  influence  on  how  evaluation 
practices were designed and have been perceived in those countries.32  

Additionally,  there  are  certain  editorial  issues  that  need  to  be  highlighted. 
While some of them are very minor and do not influence the reception of the 
content (e.g. on page 16, there is a mention of 10 countries selected, while in 
reality there are 11 discussed in the book), one is more significant. The editors 
say that while designing the study, they opted for a questionnaire for which 
they  developed  a  standard  format,  allegedly  presented  to  a  reader  in 
Appendix 1.33 Unfortunately, there is no Appendix in the book, nor in the e-
book  version.  Naturally,  the  structure  of  individual  chapters  suggests  the 
format. However, having direct access to the questionnaire could be ouf use 
to other  scholars wishing  to  build  on  the  work  presented  in  this  study  and 
progress  the  debate  further.  Furthermore,  it  would  contribute  to  better 
methodological consistency across this field of study.34  

This book, while providing some answers, poses even more questions – and 
this is indeed its greatest strength. The reader unfamiliar with the subject will 
find in the book a helpful introduction to the many problems it attempts to 
address, while the more informed reader will appreciate the degree of detail 
of the individual chapters, and the depth of the comparison undertaken by 
the editors. Without any doubt, as the authors themselves promise, this book 
will serve as a food for thought to a broad range of audiences: policy makers 
in  higher  education,  university  and/or  faculty  management,  evaluation 
experts,  research  foundation  and  funding  bodies,  and  legal  publishers. 
Overall,  I  consider  this  book  to  make  a  valuable  contribution  to  the 
discussion about the future of legal scholarship, both in Europe and beyond. 
Taking  into  account  the  relative  lack  of  literature  on  quality  standards  for 

31 

32 

Julita  Jabłecka  and  Benedetto  Lepori,  'Between  Historical  Heritage  and  Policy 
Learning: The Reform of Public Research Funding Systems in Poland, 1989–2007' 
(2009) 36 Science and Public Policy 697, 700–701; Emanuel Kulczycki, 'Assessing 
Publications  through  a  Bibliometric  Indicator:  The  Case  of  Comprehensive 
Evaluation of Scientific Units in Poland' (2017) 26 Research Evaluation 41, 41. 
See, for example: Kulczycki (n 31); Barbara Good and others, ‘Counting Quality? 
The  Czech  Performance-Based  Research  Funding  System’  (2015)  24  Research 
Evaluation 91. 

33  Van Gestel and Lienhard (n 14) 16. 
34  The Appendix was, however, shared with the author of this review upon request.  

 
 
 
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academic legal research in Europe, this volume opens new debates that will 
hopefully be taken up in the coming years.  

 
 
 
 
 
ROSTAM J. NEUWIRTH, LAW IN THE TIME OF OXYMORA: A 
SYNAESTHESIA OF LANGUAGE, LOGIC AND LAW (ROUTLEDGE 2018) 

Kerttuli Lingenfelter* 

I. INTRODUCTION 

Have  you  ever  wondered  whether  an  oxymoron  might  change  human 
evolution and, ultimately, fate? Until I read Rostam J. Neuwirth's new book, 
I, for one, had not. In Law in the Time of Oxymora, Neuwirth invites the reader 
into  an  abundant  and  curious  amalgam  of  thoughts  and  theorisations. 
Drawing  on  linguistic,  religious,  and  legal  sources,  as  well  as  philosophy, 
(neuro)science  and  fiction,  the  book  explores  the  impact  of  increasing 
oxymora in art, science and law upon human senses and the mind. Neuwirth 
proposes that dualistic logic, even if universal and inherent to humans, may 
be  losing  its  validity.1  Instead,  the  author  argues,  we  ought  to  shift  toward 
oxymoronic  thinking  and  a  holistic  'theory  of  everything'.2  The  book 
boisterously  postulates  that,  in  our  rapidly  changing  world,  by  enabling 
paradoxical problem-solving skills and cognitive coherence, such a theory can 
aid the establishment of 'a global legal framework adequate for the challenges 
in the governance of global affairs'.3 

Neuwirth's book is a colourful addition to the growing body of literature on 
questions of "law and …" and "law in …".4 Most importantly, the book delves 
into the importance of language as a means of communication and thought, 
including within the realm of law. In this sense, its pronounced contribution 

2 

3 

4 

*  Doctoral Researcher, Department of Law, European University Institute. 
1 

Rostam J Neuwirth, Law in the Time of Oxymora: A Synaesthesia of Language, Logic 
and Law (Routledge 2018) 184. 
Ibid 227–228. 
Ibid 243. 
For  instance,  see  William  Twining,  Law  in  Context:  Enlarging  a  Discipline 
(Clarendon  Press  1997);  Upendra  Baxi,  Christopher  McCrudden  and  Abdul 
Paliwala (eds), Law's Ethical, Global and Theoretical Contexts (Cambridge University 
Press  2015); Peer  C  Zumbansen,  'Transnational Law  as  Socio-Legal Theory:  The 
Challenges  for  "Law  in  Context"  in  a  Divided  World'  (Social  Science  Research 
Network 2019) SSRN Scholarly Paper ID 3505560. 

EJLS 12(1), April 2020, 241-249 

doi:10.2924/EJLS.2019.020 

 
 
 
 
 
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{Vol. 12 No. 1 

is to an old and 'current legal issue', i.e. legal knowledge on the relationship 
between law and language.5 For its rhythm, flow and themes, it brings to mind 
vibrant explorations of law from a literary perspective.6  

Its ambition is, however, where the book falters. While Neuwirth proposes 
to  discard  the  dualist  methodology  and  logic  of  the  law,  the  book's  main 
limitation is the lack of suggestions as to how, practically, one would do so. 
Moreover, the proposed grand theory of everything comes across as a lofty 
ideal  –  suitable  for  food  for  thought  but,  perhaps,  not  yet  ripe  for  serious 
scientific  exploration.  I  willingly  admit,  however,  that  Law  in  the  Time  of 
Oxymora  provoked  me  to  grapple  with  the  paradoxes  and  dichotomies 
apparent in my own thinking and writing. Herein, I suggest, lies the value of 
Neuwirth's work. While the book sometimes seems far removed from law as 
lawyers  usually  understand  it,  its  theory  pushes  one  to  reconsider  the 
language and concepts one commonly – and, perhaps, too casually – employs, 
including when discussing law and events mediated through law. I will return 
to  the  compelling  quandaries  the  book  offers  (section  III),  following  a 
summary of Neuwirth's main argumentation. 

II. SUMMARY 

In simple terms, Neuwirth hypothesises that, in our increasingly fast-paced 
and changing world,'essentially oxymoronic concepts' are on the rise and may 
be able to help us overcome binary thinking. At once, these concepts both 
correspond with the current need for new language to describe our changing 
world and may change the very condition of humanity.7 The author provokes, 
'[e]ventually,  we  need  to  ask  if  oxymora  and  paradoxes  will,  after  affecting 
first our  language, then  our  thinking,  and possibly our perception,  at some 
point  also  alter  our  biological  appearance,  our  organs  and  eventually  our 

5 

6 

See also Michael Freeman and Fiona Smith (eds), Law and Language: Current Legal 
Issues Volume 15 (Oxford University Press 2013); Andrei Marmor,  The Language of 
Law  (Oxford  University  Press  2014);  Brian  Bix,  Law,  Language,  and  Legal 
Determinacy (Oxford University Press 1995). 
A favourite of mine, for example, is Colin Dayan, The Law Is a White Dog (Princeton 
University Press 2011). 

7  Neuwirth (n 1) 114. 

 
 
 
 
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Law in the Time of Oxymora 

243 

fate?'8  Classical  logic,  which  perpetuates  binary  contradictions,  may, 
according to the author, become replaced by a 'synaesthesia of senses'.9 Such 
a  synaesthesia  could  allow  for  global  justice  by  laying  the  groundwork  for 
global  cognitive  coherence  and  a  common  language.  To  demonstrate  this 
elaborate claim, Neuwirth takes multiple steps.  

First, the author defines "essentially oxymoronic concepts" as consisting of 
oxymora, enantiosis and paradoxes. As a point of departure, Neuwirth frames 
these  concepts  as  the  logical  successor  for  their  harbinger,  the  "essentially 
contested concept". By combining seemingly contradictory fields, qualities 
and  sensations,  essentially  oxymoronic  concepts  can  undermine  the 
competitive and dichotomous thinking present in the essentially contested 
concepts.  From  the  very  outset  of  the  book,  Neuwirth  advances  the 
conception  of  law  as  discourse,  thus  entangled  with  language  and  logic.10 
Indeed, he writes, 'the idea underlying this book' is 'the role of concepts and 
language in law as a means of organizing life and governing societies'.11 It is for 
this reason, it seems, that law is often equated with language within the book; 
insofar  as  oxymoronic  concepts  may  prompt  new  ways  of  thinking  and 
perceiving,  they  can  subsequently  allow  for  fresh  attempts  at  solving 
individual as well as collective and even global contradictions and challenges. 
Law is presented as one language for exercising this new mode of perception 
and thought. As such, law, as a (not-yet-) global language of governance, has 
important promise, if only it can adapt to our increasingly changing world.12 

As  a  second  step,  covering  copious  examples  of  his  essentially  oxymoronic 
concepts in art and science (chapter 4) and in law (chapter 5), Neuwirth seeks 
to demonstrate an increase in their use. As the author points out, art, science 
and  law  are  all  contested  concepts,  which  provides  fruitful  ground  for 
oxymora.13 That law, in particular, is strongly based upon dualistic logic gives 
rise  to  some  discontentment  -  the  author  asks  whether  such  law  can 
'[transcend]  problems  caused  by  a  non-dualistic  or  fuzzier  category  of 

8 

9 

10 

11 

12 

13 

Ibid 143. 
Ibid 244. 
Ibid 2. 
Ibid 3. 
Ibid 23. 
Ibid 25, 60. 

 
 
 
 
 
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problems', meaning, apparently, the fuzzy, non-dualist character of problems 
arising  in  lived,  human  reality.  The  dualism  of  the  law,  which  mandates  a 
choice between justice and injustice, and between guilt and innocence, is not 
an  adequate  language  for  describing  all  situations.  For  this  reason, 
oxymoronic contradictions arise  in  the human  mind. These  contradictions 
are  reflected  in  the  language  of  the  law,  spanning  from  'forced  consent'  to 
'wilful negligence', and from 'intellectual property' to 'the free market'.14 

Lastly,  Neuwirth  situates  the  proposed  increase  in  essentially  oxymoronic 
concepts  into  his  broader  hypothesis  and  the  latter  half  of  the  book  is 
dedicated to what seems like Neuwirth's own theory of "everything". These 
chapters situate essentially oxymoronic concepts into a framework of old and 
new  science,  philosophy  and  logic.  In  essence,  the  chapters  narrate  how 
languages  change,  and  how  that  change  can  potentially  be  linked  to  the 
evolution  of  human  thinking,  perception  and  cognition.  Penultimately, 
Neuwirth contends that, as language may fundamentally shift human nature, 
'the principal challenge [in the time of oxymora] is to find out how law can 
both deal with change and produce the desired changes by using language'.15  

While the author refrains from providing a definite answer to this challenge, 
the  conclusions  indicate  that  essentially  oxymoronic  concepts  may  prove 
crucible. Their importance is due to their capacity to enhance human's ability 
to  accept  contradictions  and  to  generate  a  new  'organ  of  cognition' 
(something  Neuwirth  offers  as  a  future  possibility,  i.e.  an  organ  which 
integrates  many  of  our  seemingly  separate  senses).16  Through  the 
aforementioned capacities, essentially oxymoronic concepts could 'stimulate 
intuitive thinking', which 'will increase global connectivity in the brain'.17 In 
resemblance to Cammiss' proposition that storytelling, as a proxy for human 
experience, can offer 'space for voices that have traditionally been excluded 
from legal discourse',18 Neuwirth propounds a view of a legal language that is 

14 

15 

16 

17 

18 

Ibid 69–71, 79, 91. 
Ibid 115. 
Ibid 4. 
Ibid 250. 
Steven Cammiss, 'Stories in Law: Providing Space for "Oppositionists"?' in Michael 
Freeman and Fiona Smith (eds), Law and Language: Current Legal Issues Volume 15 
(Oxford University Press 2013) 221. 

 
 
 
 
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Law in the Time of Oxymora 

245 

more  holistic  and  intuitive,  and  does  not  abide  by  the  dominant  Western 
dualism.  A  language  that  more  accurately  reflects  the  human  mind  at  an 
increased  coherence  and 
intrapersonal 
understanding among individuals locally as well as globally, including through 
the language of the law.  

level  could,  then,  allow  for 

III. DIALOGUE 

Law  in  the  Time  of  Oxymora  grapples  with  questions  old  and  new,  and  ties 
together a variety of fields and sciences (whether it does so oxymoronically, 
holistically  or  otherwise  remains  for  the  reader  to  determine).  The  book 
raises salient questions about the law as language, and its potential impact on 
our minds in the short and long runs. If you are looking for clear answers and 
positive law, this is not the book for you. Yet for anyone seeking to engage in 
a  philosophically-tinted  exploration  of  (law's)  language,  meaning,  logic  and 
future, this book may offer provocative insights and arguments.  

Law in the time of Oxymora treads between highly stimulating and threadbare 
argumentation. There are two aspects, in particular, that I would like to raise 
as  examples  of  this  tension.  The  first  regards  the  relationship  between 
oxymora  and  dualistic  logic.  Law  in  the  Time  of  Oxymora  relies  on  the 
suspicion that oxymora transcend binary thinking.19 Such a claim has as its 
predisposition  a  unidirectional  view  of  language  as  the  source  of  evolving 
meaning  and  logic.  The  author  asserts  that,  based  on  this  influence, 
oxymoronic concepts may give rise to consensus and universal meaning.20 In 
sum,  since  words  change  faster  than  language  as  a  whole,  and  language 
changes  faster  than  logic,  oxymora  might  influence  how  we  think,  feel, 
reason, speak and perceive.21  

If, however, change in language corresponds to changes in the real world, thus 
reflecting  a  change  in  our  perception,  are  the  resulting  parses  still 
oxymoronic? Neuwirth often posits as paradoxical the combination of two 
formalistically or conventionally separate fields – culture industry appears to 
be a favourite of his. What Neuwirth's book does not delve into, however, is 

19  Neuwirth (n 1) 3, 138. 
20 

Ibid 11, 51. 
Ibid 124. 

21 

 
 
 
 
 
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{Vol. 12 No. 1 

whether  two  previously  unrelated  concepts  brought  together  by  human 
perception  or  science  constitute  an  oxymoron or paradox when  describing 
perceived  reality.  When  our  interdisciplinary  reality,  not  individual  poetic 
phrases,  challenges  strict  (human-made)  classifications  and  disciplinary 
boundaries, is the linguistic reflection paradoxical?  

On  a  similar  note,  the  medical  doctor  and  poet  William  Carlos  Williams 
wrote: 'meanings have been lost through laziness or changes in the form of 
existence which have let words empty'.22 In other words, words, phrases and 
language may change at a pace different than that of our experience of reality, 
whereby  language  simply  does  not  coincide  with  our  cognition.  Even  the 
author  seems  to  admit  to  this;  he  writes  that,  despite  differing  languages, 
cognitive processes 'seem to be universal'.23 In this sense, change in language 
may also lag behind change in 'form of existence'.24 

I  tend  to  contemplate,  maybe  even  more  so  since  reading  this  book,  that 
oxymoronic  thinking  is  itself  inherently  dualist.  At  the  very  least,  the 
description of something as paradoxical requires that the person doing the 
describing simultaneously continues to perceive a conflict. Is the thing itself 
oxymoronic at all if the combined terms or fields are not perceived as separate 
or  contradictory?  Neuwirth  himself  acknowledges  that  conflicts  and 
contradictions exist not in reality but in the human mind.25 This subtly differs 
from, for instance, James' view that reality, experience, is just as much outside 
as it is inside the mind – where it is often counted twice over, without us even 
noticing the difference between reality and the percepts we impose upon it.26 
What I am proposing is that if a contradiction is not experienced as such, it 
ceases to exist. Thus, the percept of oxymoron or paradox fades away. To me, 
this is the case with, inter alia, culture industry, whereby the combination of 
these words serves as an accurate description of an experience of reality, not 
as  a  contradiction  that  is  actually  present,  of  which  I  have  merely  become 
conscious.  When  Neuwirth  frames  it  as  such,  I  can  recognize  why  culture 

22  William Carlos Williams, Spring and All (New Directions Publishing 2011) 20. 
23  Neuwirth (n 1) 244–245. 
24  Williams (n 22) 20. 
25  Neuwirth (n 1) 183–184, 208–209. 
26  William James, 'Does "Consciousness" Exist?' (1904) 1 The Journal of Philosophy, 

Psychology and Scientific Methods 477, 483. 

 
 
 
 
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industry could be seen as a paradox, and find the duality behind that quality. 
Still,  the  concept  does  not  appear  to  me  as  such  in  and  of  itself.  Rather, 
oxymoronic  thinking  results  in  counting  the  experience  twice  (or  thrice) 
over, whereby: 

As  'subjective'  we  say  that  the  experience  represents;  as  'objective'  it  is 
represented.  What  represents  and  what  is  represented  is  here  numerically 
the same; but we must remember that no dualism of being represented and 
representing  resides  in  the  experience  per  se.  In  its  pure  state,  or  when 
isolated,  there  is  no  self-splitting  of  it  into  consciousness  and  what  the 
consciousness is 'of.' Its subjectivity and objectivity are functional attributes 
solely, realized only when the experience is 'taken,' i.e., talked-of, twice...27 

In  this  sense,  oxymoronic  thinking  would  not  be,  as  the  author  posits, 
'holistic  and  dynamic',28  but  an  inconstant  coupling  of  reality-experienced 
and a dualist perception that sees contradiction. Instead, only by losing the 
percept  of  dualism,  which  allows  one  to  identify  an  oxymoron  or  paradox, 
could one experience holistically.  

This brings us to the second, deeper quandary. Namely, considering that we 
have  not yet  postulated a determinative  account of,  among infinite others, 
the relationship between language, experience and the human mind, and free 
will versus fate,29 it seems reasonable to question human ability, at this stage, 
to form a theory of everything.30 A synaesthesia of senses provides little relief; 
while  Neuwirth  proposes  it  could  combine  and  integrate  separate  senses, 
which would aid us humans in navigating complexity,31 neuro science suggests 
that that is exactly what our brains already do.32 Supposedly, 'a profound truth 

27 

Ibid 485. 

28  Neuwirth (n 1) 253. 
29  Cf.  ongoing  debates  between  determinists  and  compatibilists,  for  example  Sam 
Harris,  Free  Will  (Simon  and  Schuster  2012);  Daniel  C  Dennett,  'Reflections  on 
Sam Harris' "Free Will"' (2017) 8 Rivista internazionale di Filosofia e Psicologia 214; 
Derk Pereboom, 'Response to Dennett on Free Will Skepticism' (2017) 8 Rivista 
internazionale di Filosofia e Psicologia 259. 

30  Neuwirth (n 1) 227–228. 
31 

Ibid 179. 

32  Robert M Sapolsky, Behave: The Biology of Humans at Our Best and Worst (Random 

House 2017) 40. 

 
 
 
 
 
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{Vol. 12 No. 1 

surfaces'  from  'the  paradox  of  free  will  and  fate'.33  Neuwirth  does  not, 
however,  present either  the truth or  the  paradox,  or  engage  with  the  lively 
debate about brains, free will and fate. This is problematic insofar as law, as 
we  conceive  it,  relies  on  copious  legal  fictions  about  the  human  and  her 
rationality and freedom.34 The less convenient truth may simply be that there 
is no known truth about the matter yet. Along these lines, while the author 
criticises the prioritisation of analysis over synthesis,35 it may just be too early 
to synthesise, as we have so far, in most fields, insufficiently analysed.  

IV. CONCLUSION 

Neuwirth's  book,  Law  in  the  Time  of  Oxymora,  suggests  that  by  embracing 
essentially oxymoronic concepts, we may be able to adopt a new non-binary 
way of thinking about our ever-changing world and human experiences. The 
language  of  these  concepts  would,  the  author  precipitates,  change  how  we 
think about and apply the law. Replacing dichotomous logic with fuzzy logic 
would allow for coherence and synaesthesia on the individual and collective 
levels, eliciting the possibility for a true global language (and law). 

Law  in  the  Time  of  Oxymora  offers  a  new  vocabulary  for  discussing  legal 
concepts  and  logic.  While  the  book  may  not  entirely  have  succeeded  at 
challenging the limits of current legal reasoning and method, it proffers fresh 
angles  through  which  to  examine  the  language  lawyers  use  to  describe  the 
human experience. By highlighting the friction between humans' perceived 
reality and the dualist logic underlying law, Neuwirth makes a case for paying 
closer attention to when, how, what and why we express though paradoxes 
and  oxymora.  It  seems  that  either-or  options  do  not  serve  their  intended 
purpose in a world of many shades. This triggers deep questions about truth, 

33  Neuwirth (n 1) 258. 
34 

For example, Ngaire Naffine, 'The Legal Structure of Self-Ownership: Or the Self-
Possessed Man and the Woman Possessed' (1998) 25 Journal  of Law and Society 
193; Alessandro Capone, 'The Role of Pragmatics in (Re)Constructing the Rational 
Law-Maker' in Alessandro Capone and Francesca Poggi (eds), Pragmatics and Law: 
Philosophical Perspectives (Springer International Publishing 2016); Paul G Nestor, 
'In  Defense  of  Free  Will:  Neuroscience  and  Criminal  Responsibility'  (2019)  65 
International Journal of Law and Psychiatry 101344. 

35  Neuwirth (n 1) 255. 

 
 
 
 
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justice and the purpose of law. Many of these questions remain unanswered 
and, likely, unanswerable for now, but  Law in the Time of Oxymora compels 
one to seek further (inter-disciplinary) deliberation and (fuzzy) thought.