sabato 28 dicembre 2013

Mapping International Adjudicative Bodies, the Issues and Players

Cesare P.R. Romano 

Loyola Law School Los Angeles

Karen J. Alter 

Northwestern University - Department of Political Science; University of Copenhagen, Faculty of Law - iCourts Center of Excellence

Yuval Shany 

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology; Israel Democracy Institute

December 17, 2013

Romano C./Alter K./Shany Y., “Mapping International Courts and Tribunals, the Issues and Players”, in Romano C./Alter K./Shany Y. (eds.), The Oxford University Press Handbook of International Adjudication, Oxford University Press, 2013, pp. 3-26
Loyola-LA Legal Studies Paper No. 2013-43 

This is the first chapter of Romano C./Alter K./Shany Y. (eds.), The Oxford University Press Handbook of International Adjudication (2013). The primary goal of this introductory chapter is to document the institutional, legal, and empirical terrain that is the focus of the Handbook. It contains a quick digest for the rest of the volume, elucidating how the individual chapters connect and relate to aspects of international adjudication. The chapter begins by setting out definitional criteria and explaining key concepts, particularly what differentiates adjudicative bodies from diplomatic means and other non-binding procedures; judicial bodies from arbitral bodies; and international adjudicatory mechanisms from their domestic counterparts. The dozens of international adjudicative bodies currently existing are then arranged into two large groups: judicial bodies and arbitral bodies, and then they are divided into several sub-groups, according to similarities in structure or function. After laying down some key concepts and terms (Section I), the chapter puts forward a basic classification (Section II). It then presents the greatest challenges faced by contemporary international adjudication (Section III), the actors who participate in international adjudication and the main stakeholders (Section IV), and, finally, an overview of the main theoretical models applied to the study of international adjudication (Section V).

Number of Pages in PDF File: 25

Authoritarian Constitutionalism

Mark Tushnet 

Harvard Law School

December 18, 2013

Harvard Public Law Working Paper No. 13-47 

Legal scholars and political theorists interested in constitutionalism as a normative concept tend to dichotomize the subject. There is liberal constitutionalism of the sort familiar in the modern West, with core commitments to human rights and self-governance implemented by means of varying institutional devices, and there is authoritarianism, rejecting human rights entirely and governed by unconstrained power-holders. This Article explores the possibility of forms of constitutionalism other than liberal constitutionalism. The Article focuses on what I call authoritarian constitutionalism. That discussion is connected to recent literature in political science on hybrid regimes. Drawing on these literatures, this Article outlines some characteristics of authoritarian constitutionalism understood normatively.

The reason for such an exploration parallels that for the analysis of hybrid regimes. For a period those regimes were described as transitional, on the assumption that they were an intermediate point on a trajectory from authoritarianism to liberal democracy. Scholars have come to understand that we are better off seeing these regimes as a distinct type (or as several distinct types), as stable as many democracies. In short, they have pluralized the category of regime types. Similarly, I suggest, pluralizing the category of constitutionalism will enhance understanding by allowing us to draw distinctions between regimes that should be normatively distinguished.

I begin with a brief description of three forms of constitutionalism other than liberal constitutionalism. In absolutist constitutionalism, a single decision-maker motivated by an interest in the nation’s well-being consults widely and protects civil liberties generally, but in the end decides on a course of action in the decision-maker’s sole discretion, unchecked by any other institutions. In mere rule-of-law constitutionalism, the decision-maker conforms with some general procedural requirements and implements decisions through, among other things, independent courts, but is not constrained by any substantive rules regarding, for example, civil liberties. Finally, in authoritarian constitutionalism liberal freedoms are protected at an intermediate level and elections are reasonably free and fair.

The Article proceeds by describing in Part II Singapore’s constitutionalism, to motivate the later consideration of a more generalized account of authoritarian constitutionalism. Beginning the effort to pluralize the idea of constitutionalism, Part III examines the role of constitutions and courts in absolutist nations and in nations with mere rule-of-law constitutionalism. Part IV is deflationary, arguing against some political scientists’ instrumental or strategic accounts of constitutions, courts, and elections in nations with fully authoritarian systems, where liberal freedoms are not generally respected. The Part implicitly suggests that whatever semblance of true constitutionalism there is in such nations results from normative commitments by authoritarian rulers. Part V lays out some general characteristics of authoritarian constitutionalism, again with the goal of suggesting that authoritarian constitutionalism may best be defined by attributing moderately strong normative commitments to constitutionalism – not strategic calculations – to those controlling these nations. The upshot of Parts III through V is that either (a) the commitment to constitutionalism in all authoritarian regimes is a sham, or (b) at least some of them – the ones I label “authoritarian constitutionalist” – might have a normative commitment to constitutionalism. Part VI concludes with the suggestion that authoritarian constitutionalism has some normative attractions, at least in nations where the alternative of authoritarianism is more likely than that of liberal democracy.
Number of Pages in PDF File: 110

Keywords: authoritarianism, constitutionalism, Singapore

Historical Revisionism in Comparative Perspective: Law, Politics, and Surrogate Mourning

Uladzislau Belavusau 

VU University Amsterdam - Faculty of Law

December 18, 2013

EUI Department of Law Research Paper No. 12/2013 

Recently the law on the Armenian genocide denial in France with a subsequent decision of the Conseil Constitutionnel (February 2012) shed fresh light on the controversial issue of historical revisionism. It disposed the issue in a wider perspective than a recurrent legal discussion on Holocaust denial. Furthermore, in drawing their bill, the authors of the French law invoked the EU Council Framework Decision 2008/913. This article demonstrates the chilling effects of that EU instrument for the freedom of speech in Europe. To these ends, it first explores the “European” model of legal engagement with historiography that is radically different from its counterpart in the USA. It further places this model in a fertile yet under-theorized comparative realm of three Central and Eastern European (CEE) countries: the Czech Republic, Hungary, and Poland. The CEE is a primary arena of the Holocaust, a region particularly sensitive to interpretations of World War II, and a battlefield of two totalitarian regimes. In normative terms, this comparative study of semantic and pragmatic differences between historical revisionism and hate speech, of victimhood and mens rea in the crime of Holocaust denial, as well as of the appropriation of selected episodes of World War II, concludes that the criminalization of historical revisionism constitutes a substantial impairment to the freedom of (academic) expression for the sake of politics of memory (Geschichtspolitik).
Number of Pages in PDF File: 31

Keywords: Historical revisionism; Holocaust denial; Armenian genocide; hate speech; freedom of expression; EU Central and Eastern Europe; Council Decision 2008/913

The Shadow Zones of International Judicialization

Cesare P.R. Romano 

Loyola Law School Los Angeles

December 17, 2013

C. Romano, K. Alter and Y. Shany, eds., The Oxford University Press Handbook of International Adjudication, Oxford University Press, 2013, pp. 90-110
Loyola-LA Legal Studies Paper No. 2013-45 

Despite the plethora of international adjudicative bodies created over time and across regions, international judicialization is still remarkably uneven. First, while some regions of the globe contain multiple, overlapping, international adjudicative bodies, others have none. Second, patterns of utilization are inconsistent. Even where international adjudicative bodies exist, certain actors use them more frequently than others. Third, certain areas of international relations have been judicialized significantly more than others. This chapter describes the current state of judicialization along these three main dimensions, highlighting the areas and issues where judicialization has not arrived, and advances some possible explanations for this puzzle.

Number of Pages in PDF File: 22

Deterritorialization in Administrative Law: Exploring Transnational Administrative Decisions

Angelos S. Gerontas 

Free University of Berlin (FUB) - Department of Law

December 12, 2013

Columbia Journal of European Law, Vol. 19, No. 3, 2013 

Even though transboundary administrative cooperation procedures have gradually increased in breadth and complexity over time, transnational administrative decisions, a major legal instrument of the deterritorialization of administrative law, have not been systematically explored. Drawing on both EU and international law, this Article offers a conceptual framework of the legal instrument of transnational administrative decision and distinguishes it from other forms of deterritorialization in administrative law. To explore how foreign administrative decisions intervene in a domestic legal order, the Article presents a three-pronged classification of transnational administrative decisions on the basis of legal criteria: 1) the origin of their transnational effects under international or under EU law, 2) their normative foundation, and 3) their reviewability from national administrative authorities and national courts.

Number of Pages in PDF File: 65

The Rule of Law in Times of Crisis - A Legal Theory on the State of Emergency in the Liberal Democracy

Andrej J. Zwitter 

University of Groningen - Faculty of Law

December 1, 2012

This is an earlier draft of the article that appeared as: Andrej Zwitter, "The Rule of Law in Times of Crisis A Legal Theory on the State of Emergency in the Liberal Democracy", in Archives for Philosophy of Law and Social Philosophy 98, 2012: 95.
University of Groningen Faculty of Law Research Paper No. 10/2013 

This article aims to contribute to the theoretical discussion about the rule of law and about its definition by looking at situations where the rule of law is put to the test – states of emergency. states of emergency and laws of exception have specific characteristics, one fundamental characteristic being that legislative power is shifted to the executive – in other words, democracies become less democratic. By analysing the principle of the rule of law in conjunction with the nature of emergencies and the structure of states of emergency, their interconnection will become more transparent. It will logically demonstrate that rules regarding states of exception concern only liberal democracies and that the rule of law has to continue its rule also within times of crisis. I will argue that there is no democracy without a conception of the rule of law and the rule of law only works in democracies and is therefore inapplicable to authoritarian regimes. Having established that, this article adds to the legal-theoretical understanding of the rules of emergency powers by elaborating them on the basis of the concepts democracy, rule of law and separation of powers.
Number of Pages in PDF File: 36

Keywords: State of emergency, rule of law, human rights, emergency powers, separation of powers,

Arab Spring – State of Emergency and Constitutional Reform

Andrej J. Zwitter 

University of Groningen - Faculty of Law

December 18, 2013

This paper is an earlier draft that is selected to appear as: Andrej Zwitter, "Arab Spring – State of Emergency and Constitutional Reform" in Air and Space Power Journal, 2014 (Forthcoming).
University of Groningen Faculty of Law Research Paper 2013 

This article presents the current constitutional developments around the Arab Spring. It analyses the prospects of democratic control and the rule of law from the view of constitutional arrangements concerning states of emergency. As such each section briefly outlines the political and legal background of the country and takes a look at the legal norms concerning the state of emergency. Countries covered for the purpose of this article are those, which due to the Arab Spring are engaged in large-scale constitutional reform processes: Egypt, Tunisia and Libya. Before these case studies, the essay will outline key elements of checks and balances that derive from the principles of democracy and the rule of law for emergency regulations.
Number of Pages in PDF File: 19

Keywords: state of emergency, emergency powers, arab spring, constitutional reform

The Impact of Internationalisation on National Constitutions

Cheryl Saunders 

Melbourne Law School

December 18, 2013

A Chen (ed), Constitutionalism in Asia in the Early Twenty-First Century, 2014, Forthcoming 
U of Melbourne Legal Studies Research Paper No. 671 

Internationalisation has caused significant convergence of the national constitutional systems of the world. Internationalisation occurs along vertical lines through the influence of international and supranational norms, institutions and processes on national constitutions as well through the horizontal movement of constitutional principles and practices across states. This chapter identifies the principal paths along which internationalisation occurs and how they contribute to convergence. It shows, however, that while internationalisation has reduced some differences between the constitutions of an increasing range of states, it has not eradicated difference altogether. Rather, internationalisation affects countries and constitutions to different degrees, and constitutions continue to have a distinctive relationship with the states for which they were made that affects their form and operation in practice. The chapter concludes by considering the implications of internationalisation for comparative constitutional method. It argues that despite internationalisation, comparative tools are as necessary as ever to understand national constitutional arrangements. Using Asia as an example, the chapter suggests that regional groupings of states may offer a useful taxonomy for the purposes of constitutional comparison and accommodate the twin realities of convergence and difference.
Number of Pages in PDF File: 27

Keywords: comparative, constitutions, internationalisation, globalisation, convergence, Asia

The Borkean Dilemma: Robert Bork and the Tension between Originalism and Democracy

Ilya Somin 

George Mason University School of Law

December 18, 2013

The University of Chicago Law Review Dialogue, Vol. 80, pp. 243-255, 2013 (Symposium on the work of Judge Robert H. Bork)
George Mason Law & Economics Research Paper No. 13-72 

As a constitutional theorist, the late Judge Robert Bork was best known for his advocacy of two major ideas: originalism and judicial deference to the democratic process. In some cases, these two commitments may be mutually reinforcing. But Judge Bork largely failed to consider the possibility that his two ideals sometimes contradict each other. Yet it has become increasingly clear that consistent adherence to originalism would often require judges to impose more constraints on democratic government rather than fewer. The tension between democracy and originalism is an important challenge for Bork’s constitutional thought, as well as that of other originalists who place a high value on democracy. We could call the trade-off between the two the “Borkean dilemma.”

Part I of this Essay briefly outlines Bork’s well-known commitments to both originalism and judicial deference to the democratic process. Part II discusses his failure to resolve the potential contradiction between the two. In Part III, I explain why the tension between originalism and deference has become an increasingly serious problem for originalists and briefly consider some possible ways to resolve, or at least minimize, the contradiction. Some of these theories have potential, especially the idea that many types of judicial review might actually promote rather than undermine popular control of government. Ultimately, however, none of them comes close to fully resolving the conflict between originalism and democracy. The consistent originalist will likely have to accept substantial constraints on democracy. The consistent adherent of deference to the democratic process will have to reject judicial enforcement of major parts of the original meaning of the Constitution.
Number of Pages in PDF File: 14

Keywords: constitutional law, deference, democracy, framers, interpretation, judicial review, originalism, original intent, original meaning, presumption of constitutionality, representation-reinforcement, Robert Bork, Randy Barnett, supermajoritarian decision-making, Thayer

Beyond Sumptuary: Constitutionalism, Clothes, and Bodies in Anglo-American Law, 1215-1789

Ruthann Robson 

CUNY School of Law


British Journal of American Legal Studies, Vol. 2, No. 2, Fall 2013 

Current scholarship is peppered with casual references to “sumptuary laws” whenever regulations of clothing or bodies are at issue. Too often, these references are incorrect, or at best incomplete. This Article is a careful consideration of the various regulations of attire and bodily markings from the Magna Carta in 1215 to the adoption of the United States Constitution in 1789. This Article situates bodily regulation within Anglo-American constitutionalism, including nascent constitutional Tudor-era struggles between the monarch and Parliament, the status of colonial laws, the American Revolution, pre-constitutional slavery, and the formation of the Constitution, including a proposed “Sumptuary Clause.”
Number of Pages in PDF File: 36

Keywords: Constitutional Law, Legal History, Sumptuary, Clothing

The Role of Law in the Next Stage of European Integration

T. Koopmans 


October 1, 1986

The international Comparative Law Quarterly, 35 (4), 1986 

The title of this article would suggest that there have been earlier stages of European integration and that the law then had a different role to play. That suggestion would fit in with a history book image of human progress: mankind is on tis march through times, it meets problems, it solves them manfully but, alas, it is then faced with new problems to solve – and that is how it is making progress. There is, however, another picture. In it, mankind never actually solves any of its social problems; it just leaves them aside when they are overtaken by newer or more important problems.
Number of Pages in PDF File: 7

Keywords: Role, Law, Next Stage, European Integration

Political Constraints on International Courts

Tom Ginsburg 

University of Chicago Law School

December 19, 2013

Chap. 22 (pp. 483-502) in The Oxford Handbook of International Adjudication, Oxford University Press, 2013
U of Chicago, Public Law Working Paper No. 453 

The complicated relationship between politics and law has long been a central concern among international lawyers. The project of international law has, for more than a century, sought to construct a zone for autonomous legal decision-making, immune from political considerations, to solve international disputes. Yet the context of international adjudication is, almost by definition, an intensely political one, and the efficacy of international law requires some consideration of that context. International disputes frequently involve high stakes, and so the dream of autonomous law providing technically correct solutions to resolve problems has always confronted the hard realities of international politics.

Number of Pages in PDF File: 24

Challenging Executive Dominance in European Democracy

Deirdre Curtin 

Amsterdam Centre for European Law and Governance

December 20, 2013

Modern Law Review, 77(1), 2013
Amsterdam Law School Research Paper No. 2013-77
Amsterdam Centre for European Law and Governance Research Paper No. 2013-09 

Executive dominance in the contemporary EU is part of a wider migration of executive power towards types of decision making that eschew electoral accountability and popular democratic control. This democratic gap is fed by far-going secrecy arrangements and practices exercised in a concerted fashion by the various executive actors at different levels of governance and resulting in the blacking out of crucial information and documents – even for parliaments. Beyond a deconstruction exercise on the nature and location of EU executive power and secretive working practices, this article focuses on the challenges facing parliaments in particular. It seeks to reconstruct a more pro-active and networked role of parliaments – both national and European – as countervailing power. In this vision parliaments must assert themselves in a manner that is true to their role in the political system and that is not dictated by government at any level.
Number of Pages in PDF File: 43

Keywords: European Union, executive power, representative democracy, secrecy, parliaments, co-operation

The National Margin of Appreciation Doctrine: In Search of a Balance between Democracy and Rights in the International Sphere

Marisa Iglesias Vila 

Pompeu Fabra University - Law Department

December 20, 2013

A. Amaral and J. H. Ribeiro Roriz (eds.), New Issues in International Law, Forthcoming 

The paper critically examines how the margin of appreciation doctrine has been applied in the jurisprudence of the ECtHR regarding religious symbols in public schools. It aims to distinguish two versions of this doctrine, a voluntarist version of the margin of appreciation (VVM) and a rationalized version of the doctrine (RVM), comparing their features and impact on the ECtHR’s reasoning. It then focuses on the dynamics of a RVM, its argumentative steps and requirements to underline the most important flaws in the Court’s case law on religious symbols. The paper argues that the use of the RVM as a general hermeneutic tool in the application of the Convention is the most suitable way, on the one hand, for the ECtHR to legitimize its judicial function in the face of the current European religious pluralism and, on the other hand, for it to obtain the axiological equilibrium between rights and democracy that is inherent to the ECHR itself.
Number of Pages in PDF File: 32

Keywords: Margin of Appreciation, Convention Rights, Democracy, Religious Pluralism, International Courts

Transnational Legal Discourse: Reflections on My Time with the German Law Journal

Peer Zumbansen 

York University - Osgoode Hall Law School


German Law Journal, Vol. 14, No. 12, 2013
Osgoode CLPE Research Paper No. 60/2013 

This paper looks back at the first decade and a half of the German Law Journal, an online law review launched in 2000 and co-founded/co-edited by the author from 2000 until 2013. The refereed Journal, published monthly in English, began with case notes and essays on German, European and International high court decisions, and over time grew into a lively transnational forum for critical legal commentary. With a worldwide readership and authors ranging from law students to Supreme Court Justices, the Journal has long been both a launching pad for emerging scholars‘ writing careers and a vehicle for critical intervention from established scholars and seasoned practitioners. The GLJ provides a unique space for intellectual collaboration and thought exchange, for thematic symposia and timely engagement with newest legal-political developments. Tracing the evolution and publication record of the Journal since its start, the short essay highlights some of the GLJ’s main contributions to transnational legal discourse, scholarship and legal education and emphasizes the significance of border-crossing scholarly collaboration, critical engagement and student mentoring.
Number of Pages in PDF File: 14

Keywords: Law review, transnational legal discourse, online publications, discussion forum, transnational law, EU law, international law, comparative law, legal education

What Lies Before, Behind and Beneath a Case? Five Minutes on Transnational Lawyering and the Consequences for Legal Education

Peer Zumbansen 

York University - Osgoode Hall Law School


Shauna Van Praagh and Helge Dedek (eds.), Stateless Law: Evolving Boundaries of a Discipline (Ashgate, 2014), Forthcoming
Osgoode CLPE Research Paper No. 62/2013 

The following paper serves as the Epilogue to an edited volume that celebrates the first decade of McGill’s ambitious legal education reform in ‘Transsystemic Law‘. Placing this innovation in a larger context of curriculum reform, law school crisis – then and now -, it becomes apparent that McGill’s program can be seen as part of global changes in the way that law schools struggle with student expectations, market demands, and shifting frameworks of domestic and transnational lawyering. Karl Llewellyn’s observations “On What is Wrong With Legal Education“ ring true still today, almost eighty years later. Still we seek ways to inspire law students to think critically and to develop a sense for their own moral compass, and still we find ourselves succumbing to the pressure to deliver, above all, “skills“ and practical training. The here made contention is to introduce transnational case scenarios, constellations and case studies into the law school curriculum to illustrate the complexity of social and legal facts and the treacherousness of forgetting the former over an exclusive emphasis on the latter: using, for example, labor rights struggles as in the context of the Foxconn suicides or in the Bangladeshi ready-made-garment industry, we can introduce students to different layers of legal, political and social arguments in contexts where it is not enough to identify plaintiff and defendant. The “case“ beneath that case is infinitely more complex and necessitates historical, political, economic, cultural understanding. Confronting students in first and upper year classes with such instances of ‘law in context‘, we might begin to complement our already ongoing efforts of making them sensitive to the ethical challenges of legal profession with accessible examples of transnational lawyering. Such illustrations bear crucial insights into the transnational complexities of rights advocacy, lawyering, access to justice and the legal process.
Number of Pages in PDF File: 22

Keywords: legal education, law school crisis, transnational lawyering, ethical lawyering, access to justice, transnational advocacy networks, legal process, law in context, transnational law, legal pluralism

Judicial Construction of Hong Kong's Basic Law: Concerns, Organization and Findings

P. Y. Lo 

University of Hong Kong

December 20, 2013

P Y Lo, The Judicial Construction of Hong Kong's Basic Law: Courts, Politics and Society after 1997 (Hong Kong University Press, 2014) 

China has granted Hong Kong a high degree of autonomy through the Basic Law of the Hong Kong Special Administrative Region under the principle of "one country, two systems." Hong Kong's legal system under the Basic Law is based on the common law and is administered by independent courts. By exercising the power of interpretation of the Basic Law, the Hong Kong courts have reviewed legislation and executive decisions and have achieved a "second founding" of the Basic Law as an enforceable constitutional instrument. This paper is Chapter 1 of my upcoming book on how the Hong Kong courts, particularly the Hong Kong Court of Final Appeal, gained and used the power of judicial review. It sets out the concerns of the study, including Mainland Chinese skepticism of Hong Kong courts having the power of judicial review, as well as the comparatively more moderate form of review undertaken by the courts of the Macao Special Administrative Region. It also details the organization of the book, which includes a chronological narrative of important court cases since 1997, and analyses of how the Hong Kong courts maintain their relationships with the executive and the legislature of the Hong Kong Special Administrative Region, and with China's Central Authorities, which have the power to interpret authoritatively the provisions of the Basic Law to nullify the precedential effect of the adjudicative interpretation adopted by the Hong Kong Court of Final Appeal of the relevant provision of the Basic Law. The findings of the study are outlined at the end of the paper, underlining particularly the challenge of integration that the Hong Kong courts' position as common law courts in socialist China inevitably poses.
Number of Pages in PDF File: 12

Keywords: China, Hong Kong, Courts of Hong Kong, Judicial review, Basic Law of HKSAR

Biological Institutions: The Political Science of Animal Cooperation

Erol Akcay 

University of Pennsylvania - Department of Biology

Joan Roughgarden 

Stanford University - Department of Biological Sciences

James D. Fearon 

Stanford University

John A. Ferejohn 

NYU Law School

Barry R. Weingast 

Stanford University - The Hoover Institution on War, Revolution and Peace

December 21, 2013

Social evolution is one of the most rapidly developing areas in evolutionary biology. A main theme is the emergence of cooperation among organisms, including the factors that impede cooperation. Although animal societies seem to have no formal institutions, such as courts or legislatures, we argue that biology presents many examples where an interaction can properly be thought of as an informal institution, meaning there are evolved norms and structure to the interaction that enable parties to reach mutually beneficial outcomes. These informal institutions are embedded in the natural history of the interaction, in factors such as where and when parties interact, how long and how close they stay together, and so on. Institutional theory thus widens the scope of behavioral ecology by considering not only why animals evolve to choose the strategies they choose, but also asking both why it is that they find themselves in those particular interaction setups and how these particular interactions can be sustained. Institutions frequently enable interacting parties avoid inefficient outcomes and support efficient exchange among agents with conflicting interests.

The main thesis of this paper is that the organization of many biological interactions can properly be understood as institutions that enable mutually beneficial outcomes to be achieved relative to an unstructured interaction. To do this, institutions resolve or regulate the conflicts of interests among parties. The way conflicts of interests affect the outcome depends on the structure of the interaction, which can create problems of commitment, coordination and private information. Institutional theory focuses on how to address each of these issues, typically focusing on the development of social norms, rules, and other constraints on individual behaviors. We illustrate our thesis with examples from cooperative breed and genes as within-body-mechanism-design.
Number of Pages in PDF File: 46

Keywords: biology, biological institutions, cooperate, evolution, political science, economics

Van Gend en Loos Plus 50: The Changing Social Context of Direct Effect

Michal Bobek 

College of Europe; University of Oxford, Institute of European and Comparative Law

December 23, 2013

In: Court of Justice (ed.), 50th anniversary of the judgment in Van Gend en Loos 1963–2013 (Luxembourg: Office for Official Publications, 2013), 181-187. 

This shorter commentary examines the social foundation for direct effect fifthy years after the decision of the Court of Justice in Van Gend en Loos. Can the on-going legitimacy for direct effect remain the same today as it was some fifty years ago? Or should the changed social context of the Union of today as opposed to the EEC in 1960s, matter for redefining the justification narrative of direct effect and much of the legitimacy of the Court’s case-law?
Number of Pages in PDF File: 7

Keywords: direct effect; Van Gend en Loos; Court of Justice; EU law; legitimacy

The Fight Against Terror and the Space of Individual Freedom: A (Classic) Word of Caution

Michal Bobek 

College of Europe; University of Oxford, Institute of European and Comparative Law

December 23, 2013

Forthcoming in: Inge Govaere and Sara Poli (eds.), EU Governance of Global Emergencies (Brill Publishers, 2014 Forthcoming) 

This contribution focuses on the impact which the declared aim of the ‘fight against terror’ and legislative measures adopted on its basis have had on the state and the ‘quality’ of the EU legal order internally. It takes two significant examples of legislative measures, which have been adopted in recent years with the explicit ‘fight against terror’ rhetoric and justification: regulation(s) on airport and aviation security and the Data Retention Directive. Critically examining the operation of both of these instruments, it is suggested that the considerable inroads into individual freedom which both of these measures have required can hardly be justified by their appropriateness or their necessity. Furthermore, taking into account the historical sensibilities with regard to such measures in a number of post-dictatorial states and societies in Europe, it is suggested that such measures should not only be carefully and duly weighed up in the legislative process. Such measures and above all their actual application after their adoption must be made subject to critical scrutiny by the Court of Justice of the EU.
Number of Pages in PDF File: 10

Keywords: fight against terror; data retention; secret surveillance; airport security; secret legislation; judicial scrutiny; Court of Justice