791 resultados para legitimacy of law
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From the Introduction. This article seeks to examine the relationship between European Union law, international law, and the protection of fundamental rights in the light of recent case law of the European Court of Justice (ECJ) and the Court of First Instance (CFI) relating to economic sanctions against individuals. On 3 September 2008, the ECJ delivered its long-awaited judgment in Kadi and Al Barakaat on appeal from the CFI.3 In its judgment under appeal,4 the CFI had held that the European Community (EC) is competent to adopt regulations imposing economic sanctions against private organisations in pursuance of UN Security Council (UNSC) Resolutions seeking to combat terrorism; that although the EC is not bound directly by the UN Charter, it is bound pursuant to the EC Treaty to respect international law and give effect to UNSC; and that the CFI has jurisdiction to examine the compatibility of EC regulations implementing UNSC resolutions with fundamental rights not as protected by the EC but as protected by jus cogens. On appeal, following the Opinion of Maduro AG, the ECJ rejected the CFI’s approach. It held that UNSC resolutions are binding only in international law. It subjected the contested regulations to full review under EC human rights standards and found them in breach of the right to a hearing, the right to judicial protection and the right to property. Kadi and Al Barakaat is the most important judgment ever delivered by the ECJ on the relationship between EC and international law and one of its most important judgments on fundamental rights. It is imbued by constitutional confidence, commitment to the rule of law but also some scepticism towards international law. In the meantime, the CFI has delivered a number of other judgments on anti-terrorist sanctions assessing the limits of the “emergency constitution” at European level. The purpose of this paper is to examine the above case law and explore the dilemmas and tensions facing the EU judiciary in seeking to define and protect the EU’s distinct constitutional space. It is divided as follows. It first looks at the judgment in Kadi. After a short presentation of the factual and legal background, it explores the question whether the EU has competence to adopt smart sanctions. It then examines whether the EU is bound by resolutions of the Security Council, whether the ECJ has jurisdiction to review Community measures implementing such resolutions and the applicable standard of judicial scrutiny. It analyses the contrasting views of the CFI, the Advocate General, and the ECJ taking account also of the case law of the European Court of Human Rights (ECtHR). Further, it explores the consequences of annulling the contested regulation. It then turns to discussing CFI case law in relation to sanctions lists drawn up not by the UN Security Council but by the EC. The paper concludes by welcoming the judgment of the ECJ. Whilst its reasoning on the issue of Community competence is questionable, once such competence is established, it is difficult to support the abrogation of Community standards for the protection of fundamental rights. Such standards should ensure procedural due process whilst recognising the importance of public security.
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The purpose of this paper is to analyse the economic basis of mass support for, and opposition to the European Community. In other words the main question is: to what extent, and in what ways, is popular support or opposition to the EC dependent upon economic circumstances and considerations? Behind this research question lies the matter of the legitimacy of the EC in the eyes of citizens across Europe. In some respects the results of this study are frustrating and inconclusive. In other respects, however, the results suggest some clear generalizations and conclusions. First, we have found rather little evidence that the EC or European unification are evaluated in primarily economic terms. Secondly, support seems to be associated more strongly with social and attitudinal variables of a non-economic kind. Thirdly, the figures suggest that diffuse and somewhat idealistic reasons for supporting unification and EC membership tend to outweigh more specific reasons. Fourthly, a solid foundation of inertia, custom, and national tradition seem to maintain support and make it grow.
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The Western Balkans integration within the EU has started a legal process which is the rejection of former communist legal/political approaches and the transformation of former communist institutions. Indeed, the EU agenda has brought vertical/horizontal integration and Europeanization of national institutions (i.e. shifting power to the EU institutions and international authorities). At this point, it is very crucial to emphasize the fact that the Western Balkans as a whole region has currently an image that includes characteristics of both the Soviet socialism and the European democracy. The EU foreign policies and enlargement strategy for Western Balkans have significant effects on four core factors (i.e. Schengen visa regulations, remittances, asylum and migration as an aggregate process). The convergence/divergence of EU member states’ priorities for migration policies regulate and even shape directly the migration dynamics in migrant sender countries. From this standpoint, the research explores how main migration factors are influenced by political and judicial factors such as; rule of law and democracy score, the economic liberation score, political and human rights, civil society score and citizenship rights in Western Balkan countries. The proposal of interhybridity explores how the hybridization of state and non-state actors within home and host countries can solve labor migration-related problems. The economical and sociopolitical labor-migration model of Basu (2009) is overlapping with the multidimensional empirical framework of interhybridity. Indisputably, hybrid model (i.e. collaboration state and non-state actors) has a catalyst role in terms of balancing social problems and civil society needs. Paradigmatically, it is better to perceive the hybrid model as a combination of communicative and strategic action that means the reciprocal recognition within the model is precondition for significant functionality. This will shape social and industrial relations with moral meanings of communication.
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The nomination of a First Vice-President (Frans Timmermans) in charge of rule of law and the EU Charter of Fundamental is one of the more far-reaching innovations contained in the new institutional shape of the Juncker Commission. This CEPS Commentary by Sergio Carrera and Elspeth Guild welcomes the fact that a new fundamental rights and rule of law First Vice-President will exercise a coordination and advisory role over the other two JHA Commissioners – Věra Jourová, responsible for Justice, Consumers and Gender Equality (DG Justice); and Dimitris Avramopoulos, responsible for Migration and Home Affairs (DG Home Affairs), but expresses a note caution whether this new role and triangular relationship can be made to work effectively in practice.
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This contribution presents migrant smuggling by sea as a multi-faceted phenomenon. It juxtaposes State rights and duties, State security interests and protection of fundamental rights. Similarly, various branches of law, sometime contradictory, regulate irregular maritime migration. In view of these considerations, the argument is made that any effort to control the situation must lie in a cooperative initiative among States which considers migrant smuggling by sea in a holistic manner.
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Viktor Orban’s sweeping victory in the 2010 election ensured his party, Fidesz, a constitutional two-thirds majority in parliament. The party took over the rule of the country from the discredited political left when Hungary was plunged in political and economic crisis. Claiming that the circumstances were unusual and that it had a strong electoral mandate, Fidesz introduced radical changes in the country and thus challenged the previous economic and political order. These changes have led to an unprecedented concentration of power and provoked a discussion on the limits of democracy and the rule of law in the European Union. The state’s economic role has strengthened. The Orban government has been unable to overcome economic stagnation but it has managed to stabilise Hungary’s budget situation, which needs to deal with the high debt. Hungary’s relations with most partners in the EU and NATO have cooled due to controversial moves made by its government. As regards foreign policy and economic co-operation, Orban has granted high priority to the ‘Eastern opening’, where Russia has assumed the leading role.
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Russia, being aware of the evolution of the EU gas market and the fluctuations in trends that accompany it, and in an attempt to maintain its position on the European gas market, is sticking to a dichotomous strategy. On the one hand, Moscow has taken an offensive approach: it continues its traditionally critical rhetoric with regard to the legal and institutional changes; by negating the legitimacy of the new rules, it has been making efforts to undermine them by employing legal and political measures; Russia has used such traditional economic means as investments in assets and pushing through the implementation of new gas pipeline construction projects. On the other hand, the evolution of the EU gas market has forced Russia to take steps to adapt to a certain extent: partial changes in the operation of the internal gas sector; promises to further curb Gazprom’s dominant position; the concessions made in trade negotiations with European partners; partial adjustments to the EU’s so called third energy package regulations. Hoping that the unfolding situation on the gas markets will contribute to slowing down the recent liberalisation tendencies in the EU and that EU member states won’t make progress in decreasing their dependence on Russian gas, Moscow is thus preparing itself for the ‘long game’ in gas with its European partners.
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2009 may become a turning point in the history of post-Soviet Moldova. The country’s political class and society are faced with a fundamental choice. On the one hand, if the Party of Communists of the Republic of Moldova, which has governed the country since 2001, remains in power, this would mean a consolidation of the authoritarian rule of the party leader Vladimir Voronin, perpetuation of the superficial nature of democratic institutions and a continuation of the manoeuvring between the European Union and Russia (with the increasing risk of falling into the latter’s exclusive zone of influence). On the other hand, the take over of political power by the opposition parties creates an opportunity for Moldova to resume building a democratic, pluralistic political system based on the rule of law and to develop closer links with the European Union within the framework of the European Neighbourhood Policy, including the Eastern Partnership.
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The Action Plan on visas adopted during the recent EU-Ukraine summit is a success for Ukraine. It is the first time that Kyiv has succeeded in obtaining a definition of the conditions and criteria whose fulfilment will enable Ukraine to apply for the lifting of EU visas for its citizens. Ukraine's strong point has been its political will; the lifting of this visa regime has been a priority for all Ukrainian governments since 2005. Since Viktor Yanukovych became president, Ukraine has adopted or prepared key legal acts that brought it nearer to European standards in the area of border and migration management. One of Kyiv's strengths is also its relatively well reformed and efficiently managed border service. Moreover, illegal transit migration via Ukraine is decreasing, and fewer Ukrainians are trying to enter or stay in the EU illegally. Also, Kyiv has efficiently implemented the EU-Ukraine readmission agreement. The hardest task for Ukraine will be to meet the EU’s expectations concerning values, the condition of Ukrainian democracy, and the rule of law. Corruption remains the main barrier to Ukraine's development and modernisation; the courts are weak and the judicial system inefficient. The main undertaking of the new migration service that is being formed at the moment will be to create a civil system of registration, monitoring and regulating the stays of foreign nationals. This may prove difficult, as the supervisory authority (the Ministry of the Interior) remains an unreformed, police-type bureaucratic institution. Ukraine is lagging behind countries such as Russia, Belarus and Moldova when it comes to the introduction of biometric documents. Another problem is the lack of an electronic information system on foreign nationals, visas and border crossings which would be accessible to all the relevant services and institutions. For these reasons, the complete abolition of visas seems to be a longterm perspective, especially considering that many EU countries, which themselves are faced with the problem of migrants’ integration, are rather sceptical about the further liberalisation of movement of people with their eastern neighbours. In the immediate future, if Ukraine meets some of the requirements set by the EU, it will be able to seek the extension of the visa facilitations that have been in operation since 2008.
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In a globalized economy the skills of the workforce are a key determinant of the competitiveness of a country. One of the goals of Higher Education is precisely to develop the students’ skills in order to allow them to match the increasing demand for highly qualified workers while it is simultaneously the best period of life to acquire multicultural skills. For this reason, the European Union has fostered student mobility through several programs: the Erasmus program and the Bologna process are the best known among them. Although student mobility is a growing phenomenon, publications and research on the subject remain relatively scarce. This paper aims to contribute to that literature through an empirical analysis which exploits a questionnaire submitted to university alumni and focuses on two research questions: what drives studies abroad and what drives expatriation of graduates. Our empirical analysis first shows that exposure to international experiences before entering tertiary education and family background are the main factors influencing student mobility. A second conclusion is that studying abroad increases the international mobility on the labor market. Both confirm previous studies. Moreover, by making a distinction between participating in the Erasmus program and in other exchange programs or internships abroad, we found that the Erasmus program and the other programs or internships have an equivalent influence on the international mobility on the labor market: they increase by 9 to 12.5 percentage points a student’s chance to be mobile on the international labor market. This result shows the legitimacy of the Erasmus program, but it also reveals the important impact of other forms of experience abroad. It provides support for policy makers to encourage mobility programs, in order to foster integration of the European labor market.
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The question of state sustainability is highly relevant in the case of Morocco. Despite the image of a modernising and liberalising country, Morocco is undergoing a delicate phase in its development. The recent upheavals in the Maghreb and the Middle East alongside the growing problems of poor education and high unemployment are likely to bring to the surface the unsustainable elements of Morocco’s status quo. The central issues concern the quality of institutions, reforms aimed at promoting the rule of law, curbing corruption and overhauling the judiciary. This paper will argue that while institutional quality is a pre-requisite for successful and sustainable socioeconomic performance, this cannot be achieved unless major reforms in the political system are carried out. There exists a window of opportunity to accelerate reforms and to address the acute centralisation of Moroccan politics and decision-making, the lack of accountability of the monarchic institutions, as well as the fragility of representative bodies, such as parties and trade unions. Seizing this window of opportunity could spare Morocco a period of instability, while also assuring continuity in the framework of the transition that started in 1999 when the new king came to power.
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In its Conclusions of 26-27 June 2014, the European Council has adopted the new “Strategic Guidelines for Legislative and Operational Planning for the coming years within the EU’s Area of Freedom, Security and Justice (AFSJ)”. These Guidelines reveal a pre-Lisbon Treaty mindset among the EU member states and the Justice and Home Affairs Council. This essay argues that the Guidelines are mainly driven by the interests and agendas of national Ministries of Interior and Justice and are only “strategic” to the extent that they aim at first, re-injecting ‘intergovernmentalism’ or bringing back the old EU Third Pillar ways of working to the new EU institutional setting of the AFSJ and second, at sidelining the EU Charter of Fundamental Rights and rule of law in the AFSJ. The paper argues that the European Council Guidelines seek to prevent the advances in Justice and Home Affairs cooperation as envisaged in the Treaty of Lisbon, particularly its emphasis on supranational democratic, legal and judicial accountability. As a consequence of this move to ‘de-Lisbonise’ JHA cooperation, fundamental rights and rule of law-related initiatives will be neglected and the interest of the individual will be displaced from the centre of gravity in the coming AFSJ 2020 policy agenda.
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The EU’s Central Asia Strategy approaches its fourth anniversary. In that time the EU has placed its relationship with Central Asia on a more structured footing. Although progress has been made in building dialogue and in furthering engagement, the strategy’s limitations are increasingly obvious. This brief argues that the driving force of the EU engagement should be based on a closer link between security and development. Engagement in this broad field should be underpinned by a values based approach that seeks to promote more explicitly reform on human rights, rule of law, governance and democracy. The momentous changes sweeping across the Middle East and North Africa have demonstrated that even the most apparently durable authoritarian regimes are vulnerable to sudden political shocks.
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In this paper we examine the effect of law on foreign direct investment outflows with a specific interest in the relationship between international investment law and domestic private property laws. Our results indicate that FDI investor is indifferent to host country property rights, hence shareholder protection by law is not a significant determinant of FDI outflows. We argue that FDI, in contrast with other types of capital flows, can effectively mitigate the agency problem through majority ownership and control, hence reduce exposure to ex-post expropriation by the affiliate. On the other hand, FDI investor remains exposed to risk of expropriation by the host government and is strongly sensitive to the enforcement of law in the host country. In contrast with recent literature we conclude that there are no causal relationship between bilateral investment treaties and FDI.
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Since the beginning of his third presidential term, Vladimir Putin has consistently invoked conservative ideology. Thus he legitimises the Kremlin’s new political strategy, the aim of which is to stabilise the regime and prevent any political mobilisation in Russia around a liberal agenda. This strategy is also intended to strengthen the legitimacy of the current model of government, by portraying it as ‘traditional’ for Russia; and to justify the government’s repressive and anti-Western policies. It also includes the policy of reintegrating the post-Soviet space under the auspices of Moscow, as evidenced by the annexation of Crimea and the Novorossiya project. This strategy was devised as a response to the galvanisation of adherents of liberalisation in Russia, namely the new middle class and a part of the business and administrative elites who publicly demonstrated their dissatisfaction with the regime in 2011 and 2012. However, the dissonance between the conservative slogans mouthed by the ruling elite and its actual conduct suggest that the Kremlin’s ‘conservative project’ is purely instrumental in nature, which in the longer term will undercut its effectiveness by undermining its credibility in the eyes of Russian society.
