Spring 2020 – Volume 12 – Issue 1

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Catalogue no.: QM-AZ-20-001-EN-N

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Some Thoughts on the (Un)sustaintability of Academic Publishing

By: Anna Krisztián

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General Articles

Human Control over Automation: EU Policy and AI Ethics

By: Riikka Koulu

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

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

By: Luca Leone

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

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PESCO and the Prospect of a European Army: The ‘Constitutional Need’ to Provide for a Power of Control of the European Parliament on Military Interventions

By: Matteo Frau and Elisa Tira

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

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Which Courts Matter Most? Measuring Importance in the EU Preliminary Reference System

By: Michael Ovádek, Wessel Wijtvliet and Monika Glavina

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

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

By: Alexandros Demetriades

The law surrounding the extraterritorial application of the European Convention on Human Rights raises two key controversies which have troubled legal scholars for over two decades. First, the conceptual foundations of jurisdiction remain unclear. Secondly, the nature and extent of a respondent State’s responsibility regarding extraterritorial violations of Convention rights has been bedevilled by uncertainty. This paper aims to clarify these issues. The author advocates a purposive interpretation of the case law which would give rise to what may be termed a ‘concurrent and tailored’ model of extraterritorial State responsibility. In devising this model, the paper makes two propositions. First, it explores the doctrinal basis of jurisdiction and argues that when a High Contracting Party to the Convention is operating in the territory of another signatory State, this should lead to the concurrent jurisdiction of both States under Article 1 ECHR. Secondly, the paper examines the nature of a respondent State’s obligations and consequent responsibility when it is acting extraterritorially. The author proposes that this responsibility should be tailored according to that State’s factual ability to secure the enjoyment of Convention rights in the circumstances of each case.

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

By: Pierfrancesco Rossi

This paper evaluates the theory that national courts can act as agents for the protection of the international rule of law, i.e. the idea that, under certain conditions, national courts may compensate for the lack of international mechanisms of law enforcement and ensure that their own governments comply with international law. This theory is tested against a paradigmatic case study from the field of migration, the Diciotti affair, which serves as an example of international law violations caused by governmental policies of migration containment. In this incident, migrants rescued at sea by an Italian Coast Guard ship were confined onboard for a number of days in apparent violation of international legal standards. The breaches of international law which occurred during the incident were at the center of civil and criminal cases before the Italian courts. Even though, prima facie, the response of the Italian judiciary would appear to be a textbook confirmation of the view of national courts as guardians of the international rule of law, the paper argues that the Diciotti affair also suggests that caution is required as regards the actual powers of national courts to compel state authorities to respect international law.

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Book Reviews

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

By: Olga Ceran

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

By: Kerttuli Lingenfelter

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