Autumn 2017 – Volume 10 – Issue 1
Catalogue no.: QM-AZ-19-020-EN-N
Managing a Student-Run Peer-Reviewed Legal Journal: Ten Years of Bridging Research and Experience
By: Elias Deutscher, Raphaële Xenidis, Birte Böök
Of Victims and Villains in the Fight against International Terrorism
By: Marina Aksenova
Producing a satisfactory international definition of terrorism requires the resolution of a number of problems. I argue that one of the biggest challenges stems from the incompatibility of the offence of terrorism and the traditional roles assigned by the criminal justice system to victims, offenders and mediators. The usual paradigm embodies values formed over time and collectively shared by society. As a result, offenders are the ‘villains’ in the eyes of the community for violating the agreed norms, victims suffer evident harm on an individual basis and courts together with the law enforcement agencies serve as legitimate mediators in the conflict by administering justice on behalf of the public. These roles are, however, often reversed or mixed up in the fight against terrorism. Because of the preventative focus of the laws tackling the problem, terrorist suspects become the new ‘victims’ if they are tortured, banned from entering a country or mistreated in other ways, executive agencies sanctioning these practices become the new ‘villains’, and those harmed by the attacks involuntarily become the new ‘mediators’ because their suffering is intended to transmit a certain message to the rest of the world. The uncertainty about the roles within domestic law, in turn, reduces the possibility of creating a viable international formula defining terrorism.
The Validity of Treaties Concluded under Coercion of the State: Sketching a TWAIL Critique
By: Guilherme Del Negro
The invalidity of treaties based on non-military coercion remains one of the biggest unresolved problems within the law of treaties. It paradoxically combines great certainty and clarity on the side of soft law with uncertainty and indeterminacy on the side of hard law. Unfortunately, the codification undertaken at the Vienna Convention on the Law of Treaties (VCLT) not only did not solve the hard law uncertainties, but also enlarged the cleavage between the perspectives of weak and strong States regarding international relations. By combining legal positivism with Third World Approaches to International Law (TWAIL), this paper suggests that (i) the way Article 52 of the VCLT was drafted had the effect of undermining the concept of consent and paving the way for the entrenchment of power politics, and (ii) that there is some elbow room for trying to consolidate a wider interpretation of the Article. Such an interpretation would allow us to condemn economic and political pressures that amount to true coercion as illegal strategies in treaty negotiations, safeguarding weaker States.
An Analysis of the Diplomatic Crisis between Turkey and the Netherlands in Light of the Existing International Legal Framework Governing Diplomatic and Consular Relations
By: Francesca Capone, Andrea de Guttry
Some of the most heated events related to the 2017 Turkish referendum, which significantly amended the country’s constitution, did not take place in Turkey but in several European countries where a large number of Turkish citizens reside. The tension escalated when the Netherlands barred a plane carrying the Turkish Minister for Foreign Affairs from landing on Dutch soil and then prevented the Turkish Family and Social Policies Minister from accessing the Turkish Consulate in Rotterdam. This triggered what has been described as an unprecedented diplomatic crisis between two NATO allies. Turkey vigorously claimed that the Netherlands’ behaviour breached the law of diplomatic and consular relations. The Netherlands, in turn, defended its actions, stating that they did not amount to a violation of international law. The present article will first provide an overview of these events and introduce the claims that were made by each side. Secondly, this article will briefly analyse the relevant treaty provisions and customary rules to ascertain whether Foreign Ministers enjoy a special status while visiting a third country and whether consular premises can legitimately be used to carry out political activities, ultimately challenging Turkey’s claims that the Netherlands violated international law.
The Application of the EU-Turkey Agreement: A Critical Analysis of the Decisions of the Greek Appeals Committees
By: Mariana Gkliati
The article discusses the first case law issued on the EU-Turkey deal that authoritatively answers the question whether Turkey constitutes a safe third country for refugees. In 390 out of 393 decisions, Greek Asylum Appeals Committees ruled that the safe third country requirements are not fulfilled with respect to Turkey, essentially impeding the application of the EU-Turkey deal. The purpose of this article is, on the first level, through empirical research, to shed light on the reasoning of the decisions of the Appeals Committees and investigate the impact of the EU-Turkey agreement upon them. On a second level, it focuses on evaluating from the perspective of effective legal protection the legislative amendment, subsequent to these decisions, which modifies their composition. The analysis is of significant societal relevance, as it aspires to inform further law, policy, and jurisprudence in the field, especially since it provides access to sources that due to language and other practical barriers would remain far from the reach of legal and policy experts.
National Parliaments’ Third Yellow Card and the Struggle over the Revision of the Posted Workers Directive
By: Diane Fromage, Valentin Kreilinger
The Treaty of Lisbon strengthened the role of national parliaments in the EU legislative process by creating the Early Warning System. This procedure offers them the possibility to send reasoned opinions to the European Commission if they have subsidiarity concerns about a legislative proposal. Since 2009 the necessary threshold (i.e. one third of the total number of votes) has only been reached three times. The most recent of these ‘yellow cards’ was triggered by the Commission’s proposal to revise the Posted Workers Directive, an event that allows us to shed some light on how national parliaments use this mechanism and how the European Commission has reacted. The subsidiarity concerns were rejected by the Commission and the legislative process continues despite deep divisions between old and new Member States over the controversial policy issue of revising the Posted Workers Directive.
Party Polarization and its Consequences for Judicial Power and Judicial Independence
By: Benjamin Bricker
In this article, I reconsider the party-level forces affecting the establishment of judicial review and judicial independence. Though most current theory examines the competitiveness of the party system, I argue instead that the level of party polarization should lead to demonstrable effects on the establishment of judicial review and judicial independence rules. Using data on party polarization from the Manifesto Project, I test this theory on 38 (mostly European) countries. Results indicate a robust relationship between polarization and the presence of strong judicial independence protections, and also reinforce the importance of party competition for the establishment of judicial review. These results have important implications for constitutional design and the development of judicial power, as well as practical implications for the ability of polarized societies to develop institutions that mediate conflict.
Montesquieu and Judicial Review of Proportionality in Administrative Law: Rethinking the Separation of Powers in the Neoliberal Era
By: Lukas van den Berge
The present era has seen an unprecedented fragmentation of the public sphere, a breakup of public imperium into separate pieces, not only left in the hands of supranational or subnational authorities, but also entrusted to private actors. With the abandonment of previously undisputed notions of strict legal verticality and the undivided general interest, the separation of powers doctrine as applied in most European systems of administrative law is in need of serious rethinking. Current debates on the judicial control of governmental discretion are still hampered by a discursive language and a legal grammar that tend to draw sharp lines between law and policy, awarding each of the three branches of government its own well-defined domain. Contrary to widespread belief, the trias politica as an ideology of disjointed powers and separate spheres cannot be traced back to Montesquieu’s theory of law, but only from its philosophical rebuttal and inaccurate reception in subsequent times. Ironically, a proper analysis of Montesquieu’s theory may indicate a viable way forward for a system of review of government actions that attunes to its modern social and institutional context.
Rethinking the Structure of Free Movement Law: The Centralisation of Proportionality in the Internal Market
By: Barend van Leeuwen
This article analyses three important developments in EU free movement law from the perspective of the structure of free movement law. Each of these developments – market access, horizontal direct effect and the assimilation of justifications – is caused by structural changes in the application of the free movement provisions. Firstly, the Court of Justice of the European Union has used ‘backwards reasoning’, which means that the Court no longer maintains the consecutive order of the structure. Moreover, the Court has increasingly merged what were previously distinct stages of inquiry in free movement cases. The result is that the proportionality test has become the most likely tool to solve free movement cases. This process of centralisation can be explained by the Court’s aim to guarantee the effet utile of the free movement provisions. However, the centralisation of proportionality has a number of important consequences. Ultimately, the (almost) exclusive reliance on proportionality to solve free movement cases does not improve the functioning of the internal market. Therefore, the Court should also develop and rely on the other pillars of the structure of free movement law.
Tackling Diversity Inside WTO: The GATT Moral Clause after Colombia – Textiles
By: Silvia Nuzzo
After lying dormant for more than five decades, WTO ‘public morals’ exceptions have been more frequently invoked in recent times. During the last fifteen years, the number of disputes settled through the application of GATT 1994 Art. XX(a) and the homologue GATS Art. XIV has gone from zero to four – and it is likely to keep growing. This could be partially due to WTO expanding membership which facilitates trade connections between countries with different, sometimes opposite cultural and social backgrounds. The interpretation and application of the moral clause entail difficult challenges for WTO Panels and for the Appellate Body (AB). They are called to find a balance not only between trade and non-trade values, but also and most of all between WTO Members’ regulatory autonomy and their standard of review. However, WTO case law shows an ongoing struggle to find the best way to accomplish this task. Moving on from the analysis of the Colombia – Textiles dispute, this article will discuss the judicial application of the ‘moral clause’. It will compare Colombia – Textiles with the former case law, paying particular attention to some crucial aspects of the AB’s legal reasoning in Colombia – Textiles and their potential implications for future case law.
Book Review: Barbara Havelková, Gender Equality in Law: Uncovering the Legacies of Czech State Socialism (Hart Publishing 2017)
By: Elena Brodeală
Book Review: Geoffrey Samuel, A Short Introduction to Judging and to Legal Reasoning (Edward Elgar Publishing 2016)
By: Rūta Liepiņa