sabato 25 agosto 2012

STALS Book Review

This a review that Marta Simoncini (University of Antwerp) kindly wrote on my last book in Italian "Lo spirito polemico del diritto europeo. Studio sulle ambizioni costituzionali dell'Unione" (Aracne, Roma, 2011)

You can read the full text of the review at the following URL:

giovedì 23 agosto 2012

Alemanno on Global Food Governance

Testing the Limits of Global Food Governance: The Case of Ractopamine

Alberto Alemanno 

HEC Paris - Law Department

Giuseppe Capodieci 

affiliation not provided to SSRN

August 22, 2012

European Journal of Risk Regulation, Vol. 3, 2012 

Although few citizens outside of the livestock industry have heard about this veterinary drug, ractopamine is set to become not only the source of public concern but also the trigger of another endless transatlantic trade dispute. After years of scientific and political deadlock, the Codex Alimentarius Commission (CAC) narrowly voted, on July 5, 2012 to adopt the first-ever maximum residue levels for ractopamine hydrochloride, a controversial veterinary drug used in animal feed that boosts growth and promotes leanness in pigs and cattle. The high polarization on the political acceptability of the substance as well as the politicization of its underlying science that have accompanied the discussions within Codex are likely to weaken the legitimacy and overall effectiveness of the adopted standard on the multilateral global food safety governance. In particular, this decision, by making it easier for the U.S. and others to challenge countries like China, the European Union and Taiwan for having zero tolerance policies for ractopamine residues in meat products, is likely to lead the World Trade Organization to judge against those countries that ban the use of ractopamine. Yet this likely outcome begs the question of whether the weight of an international standard adopted with a one vote difference could realistically be considered tantamount to one adopted under consensus. Under these circumstances, ractopamine is set to become the source of another endless transatlantic trade dispute and a test case for the embryonic and fragmented global food governance system.

Keywords: codex alimentarius, risk regulation, food law, precautionary principle, EU law, WTO Law

sabato 11 agosto 2012

Guastaferro on Art. 4.2 TEU


Article 4(2) of the Treaty on the European Union, in its novel formulation provided by the Treaty of Lisbon, requires the Union to “respect Member States’ national identitiesinherent in their fundamental structures, political and constitutional, including regional and local self-government”. This work seeks to elucidate the meaning and the legal implications of the identity clause in its current wording. To this end, this work analyzes the working documents of the European Convention to determine the drafter’s intended role of the so-called “Christophersen clause”, the predecessor of Art. 4 (2) TEU. It then focuses on the use of the identity clause by the ECJ in the review of both EU and national measures. This work challenges the conventional assumption that the evident purpose of the clause is that of applying in exceptional cases of conflicts between EU law and domestic constitutional law—in an attempt to narrow the scope of application of the supremacy doctrine—and explores the potential use of the clause in the ordinary functioning of EU law. Some normative recommendations will be put forward as to the identity clause potential use in safeguarding Member States’ cultural diversity, regulatory autonomy, and margin of appreciation.

Full paper available here:

domenica 5 agosto 2012

Anna Margherita Russo on Comparative Regionalism in the EU

From the abstract

En este trabajo se analiza la distribución territorial del poder en los 27 Países de la Unión Europea, clasificados –según una tipología que se construye a través la metodología jurídica comparada– asumiendo parámetros tales como la génesis del ordenamiento, el alcance y nivel de garantía del principio autonómico, el perfil cuantitativo y cualitativo los distintos niveles institucional-territoriales de los que se compone cada ordenamiento y, además, la influencias de “factores externos” (como la integración EU) en la evolución del modelo territorial. Sobre tal base se clasifican los Países bajo distintas formulas: descentralización (administrativa) local (one/two tier local self-government); “regionalismo variable” (regionalismo “fuerte”, “administrativo”, “parcial”); “federalismo procesal” (federalismo “de agregación” y “de devolución”).

Full text available at:

mercoledì 1 agosto 2012

MY (OUR) NEW BOOK: G.Martinico-O.Pollicino, The Interaction Between Europe’s Legal Systems Judicial Dialogue and the Creation of Supranational Laws, Elgar, 2012

Finally, our book came out:

The Interaction Between Europe’s Legal Systems. Judicial Dialogue and the Creation of Supranational Laws

Giuseppe Martinico, Oreste Pollicino

Giuseppe Martinico, García Pelayo Fellow, Centro de Estudios Politicos y Constitucionales, Spain and Oreste Pollicino, Associate Professor of Comparative Law, Bocconi University, Italy

This book examines the broad issue of the rapprochement between the legal systems of the EU and the European Convention of Human Rights (ECHR) and asks whether the two systems are converging. While the literature on the issue of the national application of EC/EU law or that of ECHR norms is voluminous, a specific comparative analysis that takes into account the national judicial treatment of both laws has been lacking, until now.
Contents: Part I 1. The Interaction between Europe’s Legal Systems: An Introduction to the Investigation 2. The Formal Parameter 3. The Law in Action Part II 4. External Convergence: Towards a Rapprochement of the EU and ECHR Regimes After the Enlargement of Europe to the East 5. The Enlargement of Europe to the East and the Reaction of the European Court of Human Rights 6. The Enlargement of Europe to the East and the Reaction of the European Court of Justice 7. Conclusions Index

Further information

This detailed book begins with some reflections on the importance of judicial interactions in European constitutional law, before going on to compare the relationships between national judges and supranational laws across 27 European jurisdictions. For the same jurisdictions it then makes a careful assessment of way in which ECHR and EU law is handled before national courts and also sets this in the context of the original goals and aims of the two regimes. Finally, the authors broaden the perspective to bring in the prospects of European enlargement towards the East, and consider the implications of this for the rapprochement between the two regimes.

The Interaction between Europe’s Legal Systems will strongly appeal to academics and students in European law, comparative law, theory of law, postgraduate students and LLM students in European law and in comparative law.

Recensione a C.Murphy, EU Counter-Terrorism Law Pre-Emption and the Rule of Law, Hart, Oxford, 2012.

C.Murphy, EU Counter-Terrorism Law Pre-Emption and the Rule of Law, Hart, Oxford, 2012.

È stato da poco pubblicato, nella serie “Modern Studies in EU Law” dell'editore Hart, il nuovo libro di Cian Murphy (, Lecturer alla Dickson Poon School of Law del King's College di Londra e già autore di numerosi saggi su riviste prestigiose come Common Market Law Review o European Public Law.
Il lavoro rappresenta la versione finale della tesi di dottorato difesa presso il King's College ed è dedicato al tema della normativa europea (UE) anti-terrorismo; un estratto del lavoro è peraltro disponibile sul sito dell'editore ( Si tratta di un libro ambizioso, frutto di anni di ricerca, in cui l'autore cerca di dimostrare come la lotta al terrorismo stia di fatto indebolendo il rule of law europeo (per un’analisi dettagliata del concetto di “rule of law” nella giurisprudenza della Corte di giustizia si veda L.Pech, “The Rule of Law as a Constitutional Principle of the European Union”, Jean Monnet Working Paper 4/2009, e analizza i futuri scenari che eventi come l'entrata in vigore del Trattato di Riforma, l'adozione del Programma di Stoccolma e  (aggiungiamo qui) l'adesione alla CEDU dell'Unione avranno in questo settore.
Il libro è diviso in tre parti de articolato in otto capitoli (più una introduzione e un capitolo conclusivo).
Il primo capitolo si incentra sullo sviluppo della politica e normativa UE in materia di lotta al terrorismo, il secondo analizza lo sviluppo del concetto di rule of law in ambito europeo (sviluppando alcune intuizioni di von Bogdandy contenute in “Constitutional Principles” in A von Bogdandy r J Bast (eds), Principles of European Constitutional Law, Oxford, Hart Publishing, 2006).
I capitoli che vanno dal 3 al 7 (e che compongono la seconda parte del volume) selezionano cinque case studies di legislazione antiterrorismo (la “Framework Decision on Combating Terrorism”, cap. 3; l'“anti-money laundering and counter-terrorist finance laws”, cap. 4; le “UN and EU targeted asset-freezing sanctions”, cap. 5; la “Data Retention Directive” e i “Passenger Name Records agreements”, cap. 6; lo “European Arrest Warrant” e lo “European Evidence Warrant”, cap. 7).
L'ottavo capitolo riconsidera l'idea di rule of law europeo come sviluppata nella prima parte, cercando di studiare “the state of the rule of law in the EU today and how it is being reshaped by pre-emptive counter-terrorism”(p. 15).
L'ultimo capitolo, infine, cerca di anticipare le future evoluzioni del sistema UE alla luce dei più recenti eventi (Lisbona, programma Stoccolma etc).
Si tratta di un volume molto ben strutturato e scritto in maniera chiara che ha il pregio di prendere in considerazione la letteratura non solo giuridica sul tema, come dimostrano anche gli interessanti excursus storici relativi alla nozione di “terrore” nel pensiero rivoluzionario francese, un libro che si inserisce con originalità in un contesto già caratterizzato dall’esistenza di numerosi scritti dedicati al tema terrorismo all’indomani dell’11 settembre.

Giuseppe Martinico

NEW BOOK: E.U.Petersmann (ed.), International Economic Law in the 21st Century: Constitutional Pluralism and Multilevel Governance of Interdependent Public Goods, Hart, 2012

The state-centered paradigm of international law - the Westphalian model - has failed to deliver effective and universal human rights protection, democratic peace, sustainable development, and consumer welfare. Why? Despite the full weight of UN endorsement, human rights conventions and the Bretton-Woods agreements continue to treat citizens as mere objects of inter-state regulation, not as the main subject of human rights protection and of international economic cooperation. In this book, Ernst-Ulrich Petersmann - a widely admired and experienced academic, judge, and policy maker in the field of international economic law - argues that there is a need to 'civilize' the global economy by improving its human rights performance. Worldwide economic regulation tends to lack reference to human rights, general consumer welfare, democratic citizen participation, and the rule of law among citizens. The practical influence of national parliaments on intergovernmental rule-making is all too often marginal. In order to make global governance for the collective supply of 'global public goods' legitimate and effective, multilevel economic regulation must be designed and justified in terms of human rights and other 'principles of justice.' The bedrock of this move to civilize will be international law based on adequate 'constitutional safeguards.'

Methodological Pluralism and Its Critics in International Economic Law Research

Ernst-Ulrich Petersmann
European University Institute - Department of Law (LAW) 
July 1, 2012

EUI Working Papers LAW no 2012/18 

This paper (accepted for publication in the Journal of International Economic Law 15 (2012)) uses the term ‘legal methodology’ as referring to the conceptions of the sources and ‘rules of recognition’ of law, the methods of interpretation, the functions and systemic nature of legal systems like international economic law (IEL), and their relationships to other areas of law and politics. It begins with discussing six competing theories of justice justifying international economic regulation. This overview of theories of justice is followed by a discussion of competing moral, economic, political and legal conceptions of the ‘primary’ and ‘secondary rules’ of IEL. Due to the ‘dual nature’ of modern legal systems resulting from the universal recognition of human rights and of other principles of justice, legal positivism, natural law theories, social and policy conceptions of national, transnational and international legal systems must be applied in mutually coherent ways. As law and jurisprudence are less about ‘truth’ than about ‘institutionalizing public reason’, positive and normative legal arguments must respect legitimate ‘constitutional pluralism’ and ‘reasonable disagreement’ about interpretation and legal protection of civil, political, economic, social and cultural human rights as relevant context for interpreting IEL. The paper explains why, due to ‘globalization’ and the transformation of ever more national into transnational public goods, national Constitutions have become ‘partial constitutions’ that can no longer protect many public goods without international law and institutions. Constitutional and ‘public goods’ theories confirm that the five competing conceptions of IEL must be embedded into a multilevel constitutional framework limiting abuses of public and private power in all human interactions at national, transnational and international levels. The paper includes case-studies illustrating the need for comparative institutional research on which multilevel legal, institutional and regulatory approaches protect human rights, other cosmopolitan rights of citizens and related public goods most effectively. The obvious ‘governance failures’ in protecting interdependent public goods call not only for ‘democratic empowerment’ of citizens by cosmopolitan rights compensating the inadequate parliamentary control of multilevel governance by new forms of ‘participatory’, deliberative and cosmopolitan democracy. The obvious abuses of ‘Westphalian conceptions’ of ‘international law among states’ must also be limited by stronger multilevel judicial protection of cosmopolitan rights in order to hold governments more accountable for their failures to protect interdependent public goods more effectively.
Number of Pages in PDF File: 45
Keywords: international economic law, constitutionalism, human rights, justice

International Economic Law in the 21st Century: Need for Stronger ‘Democratic Ownership’ and Cosmopolitan Reforms

Ernst-Ulrich Petersmann  
European University Institute - Department of Law (LAW) 

July 1, 2012

EUI Working Papers LAW no 2012/17 

This article, accepted for publication in the 2012 Polish Yearbook of International Law, argues that – in order to make international economic law (IEL) a more effective instrument for protecting human rights and other public goods – citizens and courts of justice must insist on interpreting and developing IEL ‘in conformity with principles of justice’ and human rights, as required by the customary methods of treaty interpretation (I). By empowering citizens through legal and judicial remedies, cosmopolitan rights can strengthen the legal and democratic accountability of governments for their ‘duties to protect’ public goods (II). The ‘dual nature’ of modern legal systems resulting from their incorporation of ‘inalienable’ human rights requires justifying IEL in terms of ‘normative individualism’ and reasonable interests of all citizens (III). Human rights and democratic constitutionalism entail not only changes of the ‘rules of recognition’ (IV) and require ‘judicial balancing’ as the ‘ultimate rule of law’ (V). They also protect individual and democratic diversity and ‘reasonable disagreement’ (VI). The article discusses ten areas of increasing synergies between IEL and human rights law (VII- IX). Arguably, the normative proposition of justifying and designing IEL in terms of constitutional principles of justice and cosmopolitan rights is confirmed by the empirical fact that cosmopolitan legal systems (e.g. in European commercial, trade, investment and human rights law) tend to realize their declared objectives more effectively than state-centred ‘Westphalian legal regimes’ (X-XII).
Number of Pages in PDF File: 37
Keywords: international economic law, human rights, democracy, judicial review

Germany’s Dialogue with Strasbourg: Extrapolating the Bundesverfassungsgericht’s Relationship with the European Court of Human Rights in the Preventive Detention Decision

Birgit Peters 

University of Bremen

May 24, 2012

13 German Law Journal 757-772 (2012) 

Much is and has been written on the relationship between the German Federal Constitutional Court (Bundesverfassungsgericht) and the European Court of Human Rights (ECtHR). According to its findings in the Görgülü and Caroline decisions, the Bundesverfassungsgericht follows an “interpretative,” and thus overall benevolent, approach to its relations with the ECtHR, which is inspired by the “friendliness” of the Basic Law towards international law. Despite the friendliness, both Görgülü and Caroline left several important questions concerning that relationship unanswered. Are national courts obliged to interpret constitutional provisions in light of the European Convention on Human Rights (ECHR), and, if yes, under what conditions? The most recent decision of 4 May 2011 on preventive detention dealt with those remaining questions in an almost textbook-like manner. Even though the decision still raises some issues of its own, its inclusive approach may, hopefully, lead the way in the current debate on the relationship of national courts with the ECtHR.

Full text available at:

The European Court of Justice, Member State Autonomy and European Union Citizenship: Conjunctions and Disjunctions

Theodora Kostakopoulou 

University of Southampton - School of Law

July 25, 2012

B. de Witte and Hans-W. Micklitz (eds.) The European Court of Justice and The Autonomy of the Member States (Leiden: Intersentia, 2012), pp. 175-203
Southampton Law School Research Paper 

Scholarship on the role of the European Court of Justice in shaping the polycentric European governance and the law and politics of ‘sovereign’ national authorities contains plenty of discords. Yet its role as a driving force of European integration is probably beyond dispute. Not only jurists but also political scientists have acknowledged its authoritative reasoning on issues of integration and principle, notwithstanding the existence of concerns about growing judicial power and the perennial disagreement over whether judicial processes are less legitimate than democratic ones. Certainly, if the meaning of the latter is confined to majoritarian processes, then the assumption of a quasi-legislative role by courts, that is, their ability to bypass political and legislative processes, appears to be problematic. But since democratic systems are built upon majoritarian electoral processes as well as reflective values and rights, which place constraints on governments’ powers, the judicial protection and advancement of these values and rights are normatively and empirically justified. Courts function as ‘fora of principle’and have been recognised as reliable agents for securing equitable settlements within and above the nation-state. This also applies with respect to European Union Citizenship. By comparing and contrasting two dimensions of the same institution; namely, the judicialised material scope and the non-judicialised personal scope of European Union citizenship, I argue that while the material scope of Union citizenship has been characterised by incremental, principled and transformative institutional change, its personal scope, that is, the question of who is entitled to be a member of the European citizenry, has by and large evaded a similar process of critical reflection and adaptation to changing conditions. In the subsequent discussion, I reflect on the consequences of governing with or without judges, the Rottmann judgement and the Member States’ relative autonomy and argue that the political consequences as far as the rights of citizens and residents, substantive commitments to non-discrimination and equal treatment and the vision of an inclusive European public are concerned are too important to be left to self-regulation.
Number of Pages in PDF File: 30
Keywords: European Union Citizenship, Jusidial Activism, Rottmann, Member State Autonomy

On European Identity

Theodora Kostakopoulou 

University of Southampton - School of Law

July 25, 2012

R. Bellamy and U. Staiger (eds.), EU Citizenship and the Market, The European Institute, UCL, 2011
Southampton Law School Research Paper 

The European identity can never be a mirror image of national identities; being at war within itself and with other countries is not the modality of European identity. In addition, the existence of an overarching identity is not needed in order to furnish the unity and the purpose of the European edifice. For this has already achieved by doing things together, solving problems together, by designing appropriate institutions, reflecting critically on them, revising and redrawing the European Union architecture. True, the participants in this project must not be indifferent, that is, they must have a positive orientation towards European integration and a sense of commitment that stimulates their engagement, but such orientation and engagement have many shades and are manifested in different ways. Certainly, European citizens are not required to suppress all other identifications and to display unqualified acceptance of, and allegiance to, what has been decided. The language of sacrifice and patriotism is not apposite to the European Union; in fact, the latter has led us to revise our belief that a political order that cannot command personal sacrifice is either short-lived or illegitimate. In the plural European community people are free to choose whether or not to identity with a particular community or with more than one communities simultaneously and to revise or modify this choice whenever they wish.
Number of Pages in PDF File: 5
Keywords: European identity, national identity, European citizenship

Transnational Surrogacy and International Human Rights

Barbara Stark 

Hofstra University - Maurice A. Deane School of Law

July 26, 2012

ILSA Journal of International & Comparative Law, Vol. 18, No. 2, 2012 

Transnational surrogacy is becoming increasingly commercial, drawing on a wide range of domestic laws, including some notably lax domestic laws, and dramatically disparate economic circumstances, to create new families. Part I of this Article introduces the subject and explains why the domestic family laws of the participating states are inadequate to address it. Part II explains how international human rights law, especially three major human rights treaties: the International Covenant on Economic, Social and Cultural Rights (“ICESCR” or the “Economic Covenant”), the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW” or the “Women’s Convention”) and the Convention on the Rights of the Child (“CRC”) provides some useful guidelines.

While none of these treaties explicitly address surrogacy, they each address rights crucial in this context, including the right to health, the right to support, the right to know one’s origins, and the right to a family. The argument here is that, at the very least, where surrogacy is allowed, the protections of well-established human rights norms should be assured. In some cases, this may be accomplished through regulation or contractual provisions, such as the assurance for the gestational mother of free pre-natal care. In other cases, this may be more difficult, such as treatment for as yet unknown conditions that may result from the hormonal treatments necessary for surrogacy. If, for any reason, such assurances are impossible, surrogacy should be barred as a violation of human rights.
Number of Pages in PDF File: 16
Keywords: Surrogacy; Family Law, Domestic Relations, International Family Law, Human Rights Law; International Law, Jurisprudence

Who Determines What Civil Courts Decide? Private Rights, Public Policy and EU

Simon Whittaker 

University of Oxford - Faculty of Law

July 27, 2012

D.Leczykiewicz and S. Weatherill (eds) The Involvement of EU Law in Private Relationships, Richard Hart Publishing, (2012) (Forthcoming)
Oxford Legal Studies Research Paper 

Over the last decades EU legislation and decisions of the Court of Justice have empowered and sometimes required the courts of Member States to address certain EU legal issues of their own motion. Where they do so in the context of civil litigation, this cuts across existing national patterns of the relative roles of the parties and of courts in determining the subject-matter of the case. The purpose of this paper is to consider how this EU law relates to established national European approaches to the relative role of the parties and the courts in determining the questions which courts address and to national conceptions of the civil process: is civil justice seen as requiring the court to apply the law to the claims brought before them, it being the role of courts to do justice by upholding the parties’ substantive rights deriving from private law? or is the fundamental purpose of the civil process the resolution of an agreed dispute, this dispute being identified and delineated by the parties through their pleadings and submissions? The paper first looks at three national law examples (English law, French law and German law) and then considers in turn the explicit rules of the EU private international legislative acquis which impose on national courts a duty to raise issues of civil jurisdiction of their own motion, the general approach of the Court of Justice to the question whether national courts must raise issues of EU law of their own motion under Van Schinjdel and the important (and apparently distinct) line of case-law of the Court of Justice following Océano Grupo Editorial as regards the role of courts in EU consumer protection. The paper explores the difficulties facing the CJEU in determining the relative roles of national courts and parties in relation to EU law issues and explains how the CJEU has to balance the desirability of supporting the effectiveness of EU legislation against the radical effect of requiring judicial intervention not merely on national rules of civil procedure but also on national conceptions of the civil process. For this purpose, the CJEU is likely to continue to recognise very general principles of civil procedure common to the civil law of Member States, such as the principle of party initiative and its main exception in cases involving the public interest and, in doing so, brings these principles within the fold of EU law itself and develops its own European conception of the civil process.
Number of Pages in PDF File: 50
Keywords: European Union, European Court of Justice, civil process, consumer law, private international law

Invisible Cities in Europe

Fernanda Nicola 

American University - Washington College of Law

July 30, 2012

35 Fordham International Law Journal 1282 (2012)
American University, WCL Research Paper No. 2012-27
Cities in Europe control municipal services, varying from education, public health, waste management and housing policies, that at times clash with European Union rules regulating the functioning of the Internal Market. For this reason, cities are often actors in judicial proceedings before the European courts. The Lisbon Treaty has revived the judiciability of the subsidiarity principle by giving new powers to subnational actors to participate in the formation of EU law. Yet even though policy-makers promote local participation and democracy, judges, in striking down or upholding local welfare policies that conflict with Internal Market rules, have rendered cities invisible. In balancing conflicting EU versus Member States interests as two autonomous and independent spheres of power, European judges rely on a fiction of non-intervention in state-local matters. In their decisions, city interests are either subsumed into State or EU goals, or they are reduced to private market actors. Cities have traditionally been seats of civilization and flourishing of an integrated Europe but with the Internal Market, they have necessarily taken a back seat. To redress the balance, judges should address the fact that what is decided in Luxembourg inevitably affects the redistribution of power and resources in state-local relations. By exposing the interdependence between the powers of the Union, its Member States and the plurality of cities that constitute them, such process will create greater democratic accountability in the Internal Market jurisprudence.
Number of Pages in PDF File: 83
Keywords: cities, European Union, international law

Full text available at: 

Citizenship Goes Public: The Institutional Design of Anational Citizenship

Theodora Kostakopoulou 

University of Southampton - School of Law


Journal of Political Philosophy, Vol. 17, No. 3, p. 275, 2009
Southampton Law School Research Paper 

Citizenship has been an oligarchic good and that this has given rise to a number of important externalities. Citizenship might be best conceived of as a network good with low excludability. Although we tend to believe that being together and doing things together presuppose either a prior cultural cum political homogeneity or the favourable reception of a national culture, I argue that domicile and equal participation in the social, economic and political spheres of the community may provide a better foundation for citizenship than the priority thesis underpinning liberal nationalism and contractarian moral theory. The papers outlines a model of anational citizenship and defends it against possible objections.
Number of Pages in PDF File: 45
Keywords: nationalism, citizenship, liberal nationalism, inclusive democracy, domicile

Chapter 1 - Weak Constitutionalism: Democratic Legitimacy and the Question of Constituent Power

Joel I. Colón-Ríos 

Victoria University of Wellington - Faculty of Law

May 16, 2012

Weak Constitutionalism: Democratic Legitimacy and the Question of Constituent Power, Chapter 1 (Routledge, 2012) 

This is the first chapter of Weak Constitutionalism: Democratic Legitimacy and Constituent Power (Routledge, 2012). It introduces the argument presented in the book and outlines the content of each chapter. The book argues that only a regime that provides an outlet for constituent power to manifest from time to time can ever come to enjoy democratic legitimacy. In so doing, it advances a democratic constitutional theory, one that combines a strong or participatory conception of democracy with a weak form of constitutionalism. The book engages with Anglo-American constitutional theory as well as examining the theory and practise of constituent power in different constitutional regimes (including Latin American countries) where constituent power has become an important part of the left’s legal and political discourse.
Number of Pages in PDF File: 13
Keywords: constituent power, constitutional change, constitutionalism, weak constitutionalism, democracy, popular participation, unconstitutional constitutional amendments, Latin American constitutionalism, popular constitutionalism, legitimacy, constitutional reform

A Fourth in the Court: Why are there Advocates-General in the Court of Justice?

Michal Bobek 

University of Oxford, Institute of European and Comparative Law

August 1, 2012

Forthcoming in 14 Cambridge Yearbook of European Legal Studies (2011 - 2012) 

This contribution searches for ideological, systemic justification for the role of Advocates-General in the Court of Justice. It does so by carrying out a historical and comparative study concerning their origins and systemic justification from the vantage point of a national lawyer coming from a Member State that does not know any type of a “fourth in the court”. It first explains, in point 1, which factors have considerably eroded the position of Advocates-General in the course of the last decade and why questions concerning their role and its justification became topical. Second, in points 2 and 3, the commonly invoked reference to the French inspiration for introducing Advocates-General is critically examined. It is suggested that justifications once provided with respect to the office of commissaire du gouvernement in the Conseil d´État can hardly be used on the European level with respect to Advocates-General. Third, possibilities of internal justification of the role of Advocates-General are examined in point 4: are Advocates-General providing any unique assistance to the Court of Justice, which could not be provided for in different ways? With a negative answer to the latter question, the last, part of the argument presented in point 5 offers a simple yet solid overreaching justification as to why there should be Advocates-General in the Court of Justice.
Number of Pages in PDF File: 26

India Grants a Compulsory Licence of Bayer's Patented Cancer Drug: The Issue of Local Working Requirement

Enrico Bonadio 

City University London - The City Law School; City University London

May 1, 2012

European Journal of Risk Regulation, Vol. 2, pp. 247-250, 2012 

The article analyses the first compulsory licence granted by the Indian government. The author argues that the decision adopted by India might be in violation of the non discrimination principle enshrined in Article 27(1) TRIPS Agreement.
Number of Pages in PDF File: 4
Keywords: intellectual property, patents, pharmaceuticals, compulsory licences

A Global Parliament: Essays and Articles

Andrew L. Strauss 

Widener University - School of Law

Richard Falk 

affiliation not provided to SSRN

July 30, 2012

A Global Parliament: Essays and Articles (Committee for a Democratic U.N., 2011) 

This introduction to the book, "A Global Parliament: Essays and Articles" by Richard Falk and Andrew Strauss (with a forward by Boutros Boutros-Ghali) assesses the developments that have taken place over the last decade in the movement for a global parliament. It concludes with the authors' assessment of the likely opportunities and challenges that the parliamentary movement will be confronted with in the future.
Number of Pages in PDF File: 6
Keywords: global parliament, international law, international relations, democracy

Bobek on Fundamental RIghts and the EU

Protection of Fundamental Rights Post-Lisbon: The Interaction between the EU Charter of Fundamental Rights, the European Convention on Human Rights and National Constitutions - National Report for the Czech Republic

Michal Bobek 

University of Oxford, Institute of European and Comparative Law

August 1, 2012

Published in Julia Laffranque (ed), Reports of the XXV FIDE Congress Tallinn 2012. Volume 1 (Tallinn, Tartu University Press, 2012) 355-387 

Czech national report concerning protection of fundamental rights in the European Union after the entry into force of the Lisbon Treaty, submitted to the XXV FIDE Congress, Tallinn, Estonia.

Full text available at: