giovedì 27 febbraio 2014

Counter-Terrorism Law and Judicial Review: The Challenge for the Court of Justice of the European Union

Cian C. Murphy 

King's College London – The Dickson Poon School of Law

August 1, 2013

Forthcoming in de Londras & Davis (eds) Critical Debates on Counter-terrorist Judicial Review (2014 CUP) 

Any discussion of European Union counter-terrorism law poses challenges. There is a challenge for the conservative observer that sees the former economic community with power akin to that of a sovereign state. For the liberal observer, the substance of much EU counter-terrorism law is so far-removed from European ideals of respect for human rights and the rule of law as to be rather alarming. In the present context, a book exploring judicial review of counter-terrorism action, there are also challenges. In the first half of this paper the idea that the ECJ is an appropriate institution for review of counter-terrorism law is subject to challenge. The ECJ has been the subject of much praise for its judicial review of counter-terrorism law – but that praise often overlooks the Court’s limitations. In earlier work it was possible to speak of ‘the difficult position of the European judiciary’. In that work the analysis set out the problem the Court faces in striking an appropriate balance between rules of EU constitutional law on division of powers and the protection of human rights. In this chapter the analysis takes a further look at the Court’s work in light of its history and practices. A key question is whether the Court of Justice conducts review in a manner appropriate to counter- terrorism law. The substantive challenge for the Court of Justice in more recent cases has been to reconcile overlapping rules of counter-terrorism law with legal principles such as the rule of law. Thus, the second half of the paper turns to the Court’s emerging counter-terrorism jurisprudence. That jurisprudence, in particular the line of cases dealing with restrictive measures, now ranks amongst the most discussed judgments in its history. After its judgment in Kadi I the Court is seen as a bastion of the rule of law in the face of executive power that has a global reach. That judgment was undoubtedly a positive one for the rule of law but it left many questions without answers. These questions – on intensity of review, secret evidence, and due process – have since been the subject of litigation in Kadi II and other cases. The central aim of this paper is to challenge the complacency in much European legal debate that courts – and the Court of Justice in particular – can be relied upon to control executive power. The paper argues that although they are a necessary part of a system of constraint they are by no means sufficient by themselves.
Number of Pages in PDF File: 14

Keywords: counter-terrorism, judicial review, European Union, Kadi, due process

mercoledì 26 febbraio 2014

The Moment of Schmittian Truth: Conceiving of the State of Exception in the Wake of the Financial Crisis

Ming-Sung Kuo 

University of Warwick School of Law


Christian Joerges and Carola Glinski (eds), The European Crisis and the Transformation of Transnational Governance: Authoritarian Managerialism versus Democratic Governance (Oxford: Hart Publishing, 2014 Forthcoming). 
Warwick School of Law Research Paper No. 2014/01 

This paper aims to provide critical perspectives on the constitutional debate surrounding global governance by examining the de facto state of exception as the euro crisis has prompted. I first discuss the character of the US emergency power regime and show that the euro crisis management evokes the design of emergency power in the US: executive emergency powers are ‘normalised’ through ordinary legislation but only switched on with the securitisation of the administrative machinery when a crisis is looming. While (global) administrative law, based on the US experience in dealing with the rise of the administrative state, has been advocated as a pragmatic and normative approach to framing global governance in legal terms, the resemblance the euro crisis management bears to American emergency regime reveals the second but more disturbing aspect of modelling global governance on American administrative law. Then, I reflect upon the appeal and limits of constitutionalisation as a practical response to the new crisis management in global governance. In contrast to the issues concerning American emergency regime, the question of transnational states of emergency is entangled with the constitutional debate over global governance and its political condition. I argue that the dilemma facing the constitutionalisation of global crisis governance exposes the Achilles heel of global governance: the absence of a common political will beyond the state. Thus situated, not only is a successful invocation of emergency power unlikely on the transnational level but global governance will continue to be conceived in non-constitutional terms. Here shines the cunning of the crown jurist of the Third Reich.
Number of Pages in PDF File: 25

Keywords: financial and euro crisis, (global) economic state of emergency, Carl Schmitt, state of exception, emergency powers, normalization of state of emergency, US emergency power regime, global governance, troika, global administrative law

Using the EU Charter of Fundamental Rights Against Private Parties after Association De Médiation Sociale

Cian C. Murphy 

King's College London – The Dickson Poon School of Law

February 24, 2014

European Human Rights Law Review, 2014 Forthcoming 

The judgment in Association de Médiation Sociale gave the Court of Justice the opportunity to revisit its decision in Kücükdeveci on the effect of the EU Charter. In its short judgment the Court declines to follow the complex reasoning of Advocate General Cruz Villalón in his Opinion in the case and leaves the law on the effect of the EU Charter in disputes between private parties rather unclear. The analysis herein explores the Court of Justice judgment in its wider legal context, taking in the Court’s affirmation of the rule against horizontal direct effect, the distinction of Kücükdeveci, and the question of rights and principles in the Charter. It concludes with some thoughts on how litigants in disputes between private parties might best frame their claims on the basis of the Charter and on current challenges for the European Union and the Court of Justice in this evolving field of law.
Number of Pages in PDF File: 12
Keywords: human rights, EU law, horizontal direct effect, Court of Justice of the European Union

domenica 23 febbraio 2014

Jurisprudence of the European Court of Human Rights Regarding Indigenous Peoples: Retrospect and Prospects

Timo Koivurova 

University of Lapland - Arctic Centre - Northern Institute for Environmental and Minority Law 

February 17, 2014

M. Fitzmaurice and P. Merkouris (eds.), The Interpretation and Application of the European Convention of Human Rights: Legal and Practical Implications (Martinus Nijhoff Publishers, 2013) 217-257. 

The development of international law relating to indigenous peoples has been rapid, in particular if one considers advances at the universal level since the 1980s. The article provides with a short introduction of the Convention on Indigenous and Tribal Peoples in Independent Countries and determining whether complaints manifesting problems that the northern indigenous peoples confront when dominant societies and modern economic activities penetrate deeper into their traditional territories and hamper their traditional livelihoods.

Number of Pages in PDF File: 22

The Court of Justice's Participation in the Judicial Discourse: Theory and Practice

Christina Eckes 

Amsterdam Centre for European Law and Governance

February 17, 2014

Marise Cremona & Anne Thies (eds.), The European Court of Justice and External Relations - Constitutional Challenges (Hart Publishing, Oxford, 2014) 

Judges argue within a legal frame of reference. They identify and interpret this frame and read factual situations before them in the light of it. By interpreting the law and the facts coherently with the relevant legal frame of reference they aim to objectively justify their decisions. This may sound naïve and often be much less heroic in practice. However, the core value of separation of powers and of independent judicial review is widely accepted, including the added value of the judiciary’s attempts to objectify what is ‘just’ outside of the political power struggle. Judicial discourse, it is here argued, could help the judiciary to continue to offer this objectifying value in a pluricontextual setting, where the internal and the external become increasingly interlocked because policy making is increasingly externalized, rights relevant decisions are taken by the executive outside the domestic constitutional framework, and an increasing number of players claim authority, including ultimate authority, to govern a legal situation.

The chapter hopes to contribute to the thinking about the role of the judiciary in a pluricontextual setting and turns to the European Union (EU) for inspiration. Within the EU the relationship between EU law on the one hand and the Member States collectively and individually on the other is characterized by an on-going pulling and pushing of law and politics. Both the Court of Justice of the European Union (CJEU) and Member States’ courts have long functioned in this setting. The Union legal order is a compound constitutionalized construction with interlocking claims of ultimate authority. This chapter considers what could be learned from interaction between different judiciaries within the EU legal order for the CJEU’s approach to external claims of authority.

Section One lays out the theoretical grounding of the value and necessity of judicial reasoning. It then makes the argument that both within the EU and beyond the boundaries of the EU legal order, the same philosophical arguments and theories require not only an inward looking judicial reasoning but also a discourse with other judicial bodies. Section Two looks consequently into the practice of judicial interaction between the CJEU and the courts of the Member States (internal discourse) and then to the interaction between the CJEU and international judicial bodies (external discourse). This sets the scene for Section Three, which addresses the core questions of this chapter: What lessons can the CJEU learn from the internal European judicial discourse that can be transferred to the external discourse with international courts and tribunals? What considerations should guide the CJEU’s external relations case law in the described pluricontextual setting?
Number of Pages in PDF File: 28

Keywords: Judicial discourse; European Union; Court of Justice

Kant, Human Rights and Courts

Andreas Follesdal 

University of Oslo; University of Oslo - Norwegian Centre for Human Rights; Pluricourts


Kantian Theory and Human Rights, eds. Andreas Follesdal and Reidar Maliks: Routledge. 2014, 193-202
PluriCourts Research Paper No. 14-05 

It is, perhaps, not by chance that the steep increase in theories of human rights has been matched by a renaissance in studies of Kant’s political philosophy. The essays are animated by the idea that if we get a better grip on Kant’s philosophy of right, we can energize the creative endeavor of developing philosophical theories of human rights, inspired by his particular way of thinking about the relation between rights and the rule of law. Three features characteristic of Kant’s thinking frequently crop up in the following chapters and help explain why so much recent scholarship may indeed properly be called ‘Kantian’. These features concern rights, legitimacy, and institutions. freedom is constituted by the rights and duties that enable individuals to be subject to the rule of law instead of arbitrary power. Second, political and legal authorities that establish human rights through law derive their legitimacy from being capable of justification to individuals. Third, the public institutions at the domestic and the international level are considered part of the same system. The contributions explore these Kantian principles in different directions.

Number of Pages in PDF File: 12

Fragile Democracies, Strong Human Rights Courts? Comparing European and Inter-American Cases

Leiry Cornejo Chavez 

University of Oslo - Norwegian Centre for Human Rights

Andreas Follesdal 

University of Oslo; University of Oslo - Norwegian Centre for Human Rights; Pluricourts

December 1, 2013

Nordic Journal of Human Rights, 2013, No. 4
PluriCourts Research Paper No. 14-03 

Do regional Human Rights Courts strengthen democracy? If so, when and why does this occur: what are the scope conditions and intervening mechanisms that make such courts have positive effects? The articles in this special section address these questions as regards the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR). Their similarities and differences allow several lessons to be drawn about the relationship between such courts and democracy.

Number of Pages in PDF File: 5

Much Ado About Nothing? International Judicial Review of Human Rights in Well Functioning Democracies

Andreas Follesdal 

University of Oslo; University of Oslo - Norwegian Centre for Human Rights; Pluricourts


The Legitimacy of International Human Rights Regimes. A. Follesdal, J. Schaffer and G. Ulfstein. Cambridge, Cambridge University Press, 272-299
PluriCourts Research Paper No. 14-04 

The chapter addresses some of the tensions between sovereignty, international human rights review and legitimacy, and bring these findings to bear on the proposals for reform of the European Court of Human Rights (ECtHR) that would reduce its authority over national legislatures and judiciaries. The objectives of such review are not obvious, the causes of noncompliance are contested, as is the legality of dynamic treaty interpretation; all of which hamper efforts to assess proposed improvements. Section 1 presents some relevant aspects of the ECtHR. Section 2 reviews some of the recent criticism against the ECtHR practice of judicial review to protect human rights in ‘well-functioning’ democracies, in terms of various forms of legitimacy deficits. It also presents some of the recent proposals for reform of the ECtHR. Section 3 lays out some reasons why such judicial review of majoritarian democratic decision-making may be defensible, also for well functioning democracies. Section 4 responds to some of the criticisms, and presents a partial defence. Some standard objections are not well targeted against the practices
of the ECtHR, partly due to the division of responsibility between it and national public bodies, and the different roles of legislators and of judiciaries. Section 5 returns to the proposals presented in section 2. Section 6 concludes by considering some of the important remaining normative challenges, this partial defence notwithstanding.

Number of Pages in PDF File: 27

Who Got to Adjudicate the EU's Financial Crisis and Why? Judicial Review of the Instruments of a Postnational Legal Order: Adjudicating the Practices of the Eurozone

Samo Bardutzky 

University of Michigan at Ann Arbor - University of Michigan Law School

Elaine Fahey 

Amsterdam Centre for European Law and Governance

May 15, 2013

Forthcoming in The Constitutionalization of European Budgetary Constraints First Edition Maurice Adams, Federico Fabbrini and Pierre Larouche (eds) (Oxford: Hart Publishing, 2014) 

The European Stability Mechanism (“ESM”) is one of a series of law and governance mechanisms designed to finally resolve the Eurozone qua EU’s financial crisis, purporting to create an EU replica of the International Monetary Fund (“IMF”). Recently enacted law and governance mechanisms perform, cumulatively, a radical rebalancing of powers and functions. Whilst on the one hand, they purport to dramatically decrease Member State fiscal sovereignty through non-conventional and sometimes transitional instruments, on the other hand, they increase the capacity to protect the Eurozone through funds derived from the Member States themselves, albeit in shares apportioned relative to the size and financial capacity thereof. The account here argues that the adjudication of the ESM is a rich case study of the character of law in contemporary EU integration and the state of postnationalism. Moreover, the account here contends that it constitutes an example of suboptimal adjudication in the EU courts, plural, rooted in both the character of Eurozone law and a rather flawed procedural matrix for judicial review, in the form of the preliminary reference mechanism, pursuant to Article 267 TFEU. We seek to argue that courts possibly offered a unique forum for participation and contestation for these esoteric mechanisms, which was largely not availed of. Accordingly, in our analysis, first and foremost, we consider the characterization of the ESM, in light of how it was conceived by its framers. Secondly, we consider what happened when it was assessed by several European courts, national and supranational. Thirdly, we examine the preliminary reference mechanism as the tool that could have facilitated a more participatory and orchestrated judicial response, but did so to a very limited extent. We conclude by briefly considering the reasons why this happened, but focus our attention more generally upon the character of the ESM and its adjudication.
Number of Pages in PDF File: 18

Keywords: EU Institutional law, Eurozone law & governance, Preliminary reference, Judicial function, Postnationalism

The Financial Crisis: A Reason to Improve Shareholder Protection in the EU?

Jonathan Mukwiri 

Durham University - Durham Law School

Mathias M. Siems 

Durham University - Durham Law School; University of Cambridge - Centre for Business Research

November 1, 2013

The global financial crisis of 2008 has stimulated the debate on corporate governance and shareholder protection. The intuitive reason for the topicality of shareholder protection is that insolvencies mainly harm shareholders as the companies’ residual claimants. In addition, ideally, shareholder empowerment may ensure better monitoring of management and therefore better-run companies preventing corporate failures and benefiting the economy as a whole. Yet, it is not self-evident that shareholder participation has such a positive effect. This paper critically examines the discussion about the relationship between the financial crisis, shareholder protection and law reform. We also develop a central position: while there may be a need to improve shareholder protection, we do not take the view that any increase in shareholder rights is the right way forward; rather, such reforms should aim to encourage shareholder engagement by responsible long-term investors.
Number of Pages in PDF File: 20

Keywords: shareholder protection, financial crisis, EU company law, long-term investors, shareholder engagement, institutional investors, shareholder activism

Economic and Fiscal Governance: The Hardening of European Soft Law

Holly Jarman 

University of Michigan

Scott L. Greer 

University of Michigan at Ann Arbor - Department of Health Management and Policy

February 16, 2014

The European Union’s new architecture of fiscal and economic governance can be difficult to understand. How do two legislative packages, a treaty, a strategy and a “European Semester” interact to shape member state policies? This paper argues, on the basis of a review and presentation of the new fiscal governance architecture, that what we see is a hardening of European soft law. The new European Union fiscal governance involves both tougher and more automatic sanctions for states that violate the Stability and Growth Pact, and an expansion of mechanisms of surveillance and Commission involvement in member state economic and fiscal planning. The result is planned to combine the information and constant surveillance of soft law with the judicial enforceability and tough sanctions of hard law.
Number of Pages in PDF File: 45

Keywords: European Union, fiscal governance, economic governance, law, soft law, governance, fiscal policy

EU Financial Assistance Conditionality after 'Two Pack'

Michael Ioannidis 

Goethe University Frankfurt - Faculty of Law; Max Planck Institute for Comparative Public Law and International Law

February 20, 2014

Conditionality is the new topos of EU economic governance. In Pringle, the ECJ raised “strict conditionality” to a necessary requirement of assistance to Members in financial distress, and after the recent amendment of Article 136 TFEU this is also explicitly set out in the Treaties. Moreover, conditionality proved to be an extremely powerful instrument. It has been used to press for reforms in recipient countries’ economies, healthcare and pension systems, education and research. On many occasions, the conditions for accessing European financing are prescribed in minute detail. Never before had European institutions been engaged in so close surveillance and micromanagement of domestic public policies. Starting from these observations, this article has two purposes. Firstly, to shed some light to the origins and the mechanics of EU financial assistance conditionality, and, secondly, to offer a critical appraisal of its role in the context of the new EU economic governance, especially after the so-called “Two Pack” set of reforms. Although Regulation 472/2013/EU succeeds in putting all forms of conditional lending under a common EU framework, it fails to address the basic concerns raised by the emergence of conditionality as a cornerstone of EU economic governance. Blurred responsibility, wide executive discretion, and uncertainty as to the legal instruments are some of the points that remain problematic.

Number of Pages in PDF File: 44

Towards Global Social Theory

Björn Hettne 

Göteborg University - School of Global Studies

Fredrik Söderbaum 

University of Gothenburg, School of Global Studies; United Nations University, Institute on Comparative Regional Integration Studies (UNU-CRIS)


Journal of International Relations and Development, Vol. 2, No. 4. pp. 358-368, 1999 

Our purpose is to take stock of some current trends in the rethinking of development theory, but above all to transcend the development discourse and move towards a comprehensive social science theory, here called ‘global social theory’, meaning a unified historical and critical social science that moves beyond the pitfalls of state-centrism and an obsession with ‘national development’. In a turbulent and ‘globalised’ world, the nation-state no longer constitutes the dominant framework for understanding society, and social processes must be analysed delinked from national space. It is argued that certain strands of international political economy (IPE) theory and certain strands of development theory, in conjunction with a new emphasis on cultural studies as well as the new development-related conflicts, together constitute possible building blocks of a reconstruction of development theory, as a step towards global social theory.
Number of Pages in PDF File: 20
Keywords: social theory, globalization, developent theory, IPE
Accepted Paper Series 

Full text available at:

Politicizing Europe: The Challenge of Executive Discretion

Jonathan White 

London School of Economics & Political Science (LSE)

February 21, 2014

LEQS Paper No. 72 

Political decision-making in the Euro-crisis has relied heavily on executive discretion, exercised at speed and rationalised with reference to the pressing demands of emergency. This paper explores the challenges raised for political opposition, notably challenges of a temporal kind. With its deviations from policy and procedural norms, discretionary politics tends towards a politics without rhythm, leading to major asymmetries between decision-makers and voices of opposition. These centre on issues of timing and the ability to identify authorship and content of decisions. Such asymmetries arguably correspond to an underlying one between the temporality of political decision-making and of contemporary finance capitalism, with agents of the former increasingly inclined to pursue ‘fast policy’ as a means to keep pace. A democratic response is likely to involve strengthening and synchronising the rhythms of parliamentary politics, as well as being receptive to forms of opposition less reliant on the rhythms that discretion subverts.
Number of Pages in PDF File: 28
Keywords: politicization, democracy, time, executive power, European Union

JEL Classification: Z00

A Right to Cultural Identity in a UK Bill of Rights?

Elizabeth Craig 

University of Sussex

April 29, 2013

European Public Law, Vol. 19, p. 789, 2013 

This article considers the possible inclusion of a right to cultural identity in a UK Bill of Rights, highlighting the centrality of culture to debates about the accommodation of diversity in the UK as well as the increased recognition of the importance of cultural rights under international human rights law. The article argues that the inclusion of a minimal minority rights guarantee based on Article 27 of the International Covenant on Civil and Political Rights 1966 would be an innocuous step that would provide the impetus needed for greater cultural sensitivity in decision-making processes in a way that acknowledges the centrality of culture to people's identities and everyday lives. It claims that the inclusion of such a right alongside a freestanding right to equality would provide a useful addition to the rights currently recognized as 'Convention rights' under the UK Human Rights Act 1998. This is argued on the basis of both international and domestic case law, including opinions of the UN Human Rights Committee, developments in European human rights law and experiences in other jurisdictions.
Number of Pages in PDF File: 32

Keywords: cultural rights, minority rights, cultural identity, bill of rights, cultural diversity

martedì 18 febbraio 2014

PHD Persona e tutele giuridiche

Lezione Magistrale
Prof. ANDRAS SAJO (European Court of Human Rights)

How International Human Rights Protection can be: The example of the European Court of Human Rights

 24 febbraio 2014, ore 10.30
Aula Magna Storica
Scuola Superiore Sant’Anna
Piazza Martiri della Libertà, 33 - Pisa

lunedì 10 febbraio 2014

Unione europea e good governance: seminari integrativi (Università di Pisa, Prof. Sara Poli)

Il corso Unione europea e good governance (laurea magistrale in Studi Internazionali, LM 52) organizza due seminari integrativi in lingua inglese.

Il primo seminario, Good governance in EU external relations, è tenuto dal Prof. Dr. Jan Wouters (Jean Monnet Chair ad personam EU and Global Governance; Full Professor of International Law and International Organizations; Director, Leuven Centre for Global Governance Studies - Institute for International Law, Università di Lovanio). Si svolgerà martedì 25 febbraio 2014, alle 10.30, aula M2 - polo Piagge

Il secondo seminario, The European Ombudsman and the right to good administration as a fundamental right: conceptual issues, sarà tenuto dal dr. Antonis Antoniadis, funzionario del mediatore europeo. Si svolgerà venerdì 6 marzo 2014, alle ore 15, aula N2 - polo Piagge.