Double Standards? Veils and Crucifixes in the European Legal Order

Comparing the treatment of Islamic veils and Christian crucifixes by the European Court of Human Rights, this paper re-examines the charge of “double standards” on the part of this guardian of the European legal order, which is seen as disadvantaging Islam and favoring Christianity. While this is proved partially correct, the paper calls for a more differentiated treatment of the issue. For one, there is a modicum of consistency in the European Court’s decisions, because they are all meant to further “pluralism”. Only, Islam and Christianity fare differently in this respect, as “threat” to and “affirmation” of pluralism, respectively. This distinction hinges on Islam’s compatibility with the liberal-secular order, on which the jury is out. A possible way out of the “pluralism v. pluralism” dilemma, I argue, is signaled in the European Court’s recent decision in Lautsi v. Italy (2011), which pairs a preference for “culturalized” Christianity with robust minority pluralism.

The autonomy of the EU legal order and the law-making activities of international organizations. Some examples regarding the Council most recent practice. Research Papers in Law 03/2012

[Introduction.] It is generally believed that while the principle of the autonomy of the EU legal order, in the sense of constitutional and institutional autonomy that is to say what concerns the autonomous decision-making of the EU, has been clearly strengthened by the most recent jurisprudence of the Court of Justice (eg. Moxplant3, Intertanko or the Kadi/Al Baraakat judgements or the Opinion 1/2009 of the CJEU etc.) as well as, in my opinion, in many aspects by the Treaty of Lisbon, it is still valid to add that the principle of a favourable approach, stemming from the Court jurisprudence, for the enhanced openness of the EU legal order to international law has remained equally important for the EU4. On the other hand, it should be also seen that in a globalized world, and following the increased role of the EU as an international actor, its indispensable and crucial role concerning the creation of world (legal) order in many policy fields ( for example let's think about the G20 issues, the global economic and financial crisis, the role of the EU in promoting and protecting human rights worldwide, the implementation of the multilateral or regional conventional law, developed in the framework the UN (e.g. in the field of agriculture or environment etc) or what concerns the Kyoto process on climate change or the conservation of marine biological resources at international level etc), it seems reasonable and justified to submit that the influence, for example, of the law-making activities of the main stakeholder international organizations in the mentioned policy-areas on the EU (especially on the development of its constantly evolving legal order) or vice-versa the influence of the EU law-making practice on these international organizations is significant, in many aspects mutually interdependent and more and more remarkable. This tendency of the 21st century doesn't mean, however, in my view, that the notion of the autonomy of the EU legal order would have been weakened by this increasing interaction between international law and EU law over the passed years. This contribution is going to demonstrate and prove these departuring points by giving some concrete examples from the most recent practice of the Council (all occuring either in the second half of 2009 or after the entry into force of the Lisbon Treaty), and which relate to two very important policy areas in the EU, namely the protection of human rights and the Common Fishery Policy.

The importance of International Developments in the case-law of the European Court of Justice: Kadi and the autonomy of the EC legal order. Research Papers in Law, 1/2009

From the Introduction. In the USA, the debate is still ongoing as to whether and to what extent the Supreme Court could or should refer to foreign precedent, in particular in relation to constitutional matters such as the death penalty.1 In the EU, in particular the recent Kadi case of 20082 has triggered much controversy,3 thereby highlighting the opposite angle to a similar discussion. The focus of attention in Europe is namely to what extent the European Court of Justice (hereafter “ECJ”) could lawfully and rightfully refuse to plainly ‘surrender’ or to subordinate the EC legal system to UN law and obligations when dealing with human rights issues. This question becomes all the more pertinent in view of the fact that in the past the ECJ has been rather receptive and constructive in forging interconnectivity between the EC legal order and international law developments. A bench mark in that respect was undoubtedly the Racke case of 1998,4 where the ECJ spelled out the necessity for the EC to respect international law with direct reference to a ruling of the International Court of Justice. This judgment which was rendered 10 years earlier than Kadi equally concerned EC/EU economic sanctions taken in implementation of UN Security Council Resolutions. A major question is therefore whether it is at all possible, and if so to determine how, to reconcile those apparently conflicting judgments.

Strategic Water Resources in Central Asia: in search of a new international legal order. EUCAM Policy Brief No. 14, May 2010

The allocation and use of the water resources of Central Asia is one of the most difficult issues to arise out of the break-up of the Soviet Union. How should the waters of the great Central Asian rivers, the Syr Darya and Amu Darya, be used? To generate much needed hydropower electricity in the mountainous countries in which they arise? Or for irrigation in the energy-rich downstream countries? The aim of this paper is to describe the basic problem and the efforts undertaken both by the Central Asian states and the international community, including the EU, to seek a resolution. It traces recent developments relating to the planned construction of dams, the modification of energy supplies and the periodic issue of increasingly bellicose statements from the capitals of the region. Finally it looks into the challenge for establishing a modern international legal order to govern the region's strategic water resources.

The international legal thought of Carl Schmitt : towards a critique of the contemporary international order

The aim of the thesis is to develop a critique of current liberal conceptualizations of international order. In order to conduct this critique, this thesis revisits the arguments first put forth by the German legal and political theorist Carl Schmitt. Schmitt conceptualizes a tripartite unity between law, order, and place. This unity, established at the constituent moment of land-appropriation, forms a concrete nomos, which subsequently creates the contours of the legal and political order. The establishment of the concrete order is necessarily the construction of a territorial boundary that designates an inside and an outside of the polity. By speaking of a nomos of the earth, Schmitt globalized this understanding of concrete order by looking at the various historical developments that created a "line" between the concrete applicability of interstate norms and a region where the exceptional situation prevails. The critique presented in this thesis is concerned with the lack of concrete boundary conditions within the current international legal order. It is argued that this lack of a well-defined boundary condition is what results in extreme forms of violence that were traditionally bracketed.

Legal Reasoning in Context

This study in EU law analyses the reasoning of the Court of Justice (the Court of Justice of the European Union) in a set of its preliminary rulings. Preliminary rulings are answers to national courts questions on the interpretation (and validity) of EU law called preliminary references. These questions concern specific legal issues that have arisen in legal disputes before the national courts. The Court of Justice alone has the ultimate authority to interpret EU law. The preliminary rulings bind the national courts in the cases giving rise to the preliminary reference, and the interpretations of EU law offered in the preliminary rulings are considered generally binding on all instances applying EU law. EU law is often described as a dynamic legal order and the Court of Justice as at the vanguard of developing it. It is generally assumed that the Court of Justice is striving to realise the EU s meta-level purpose (telos): integration. Against this backdrop one can understand the criticism the Court of Justice is often faced with in certain fields of EU law that can be described as developing. This criticism concerns the Court s (negatively) activist way of not just stating the law but developing or even making law. It is difficult to analyse or prove wrong this accusation as it is not in methodological terms clearly established what constitutes judicial activism, or more exactly where the threshold of negative activism lies. Moreover, one popular approach to assessing the role of the Court of Justice described as integration through law has become fairly political, neglecting to take into consideration the special nature of law as both facilitating and constraining action, not merely a medium for furthering integration. This study offers a legal reasoning approach of a more legalist nature, in order to balance the existing mix of approaches to explaining what the Court of Justice does and how. Reliance on legal reasoning is found to offer a working framework for analysis, whereas the tools for an analysis based on activism are found lacking. The legal reasoning approach enables one to assess whether or not the Court of Justice is pertaining to its own established criteria of interpretation of EU law, and if it is not, one should look more in detail at how the interpretation fits with earlier case-law and doctrines of EU law. This study examines the reasoning of the Court of Justice in a set of objectively chosen cases. The emphasis of the study is on analysing how the Court of Justice applies the established criteria of interpretation it has assumed for itself. Moreover, the judgments are assessed not only in terms of reasoning but also for meaningful silences they contain. The analysis is furthermore contextualised by taking into consideration how the cases were commented by legal scholars, their substantive EU law context, and also their larger politico-historical context. In this study, the analysis largely shows that the Court of Justice is interpreting EU law in accordance with its previous practice. Its reasoning retains connection with the linguistic or semiotic criteria of interpretation, while emphasis lies on systemic reasoning. Moreover, although there are a few judgments where the Court of Justice offers clearly dynamic reasoning or what can be considered as substantive reasoning stemming from, for example, common sense or reasonableness, such reasons are most often given in addition to systemic ones. In this sense and even when considered in its broader context, the case-law analysed in this study does not portray a specifically activist image of the Court of Justice. The legal reasoning approach is a valid alternative for explaining how and why the Court of Justice interprets EU law as it does.

Structural challenges in a multipolar and multicultural global legal era : BRICS’ global legal politics beyond cultural and economic partnerships

New emerging international dynamics introduce a global poly-axiological polycentric disorder which undermines the tradition of a unique global legal order in international law. Modern Era was characterized by Western European civilizational model – from which human rights is a byproduct. This consensus had its legitimacy tested by XXst century’s scenario – and the ‘BRICS factor/actor’ is a symptom of this reality. Its empowerment in world politics lead to the rise of distinct groups of States/civilizations provided with different legal, political, economic and social traditions – promoting an unexpected uprise of otherness in international legal order and inviting it to a complete and unforeseeable reframing process. Beyond Washington or Brussels Consensus, other custom-originated discourses (Brasília, Moscow, New Delhi, Peking or Cape Town Consensus, among other unfolded possibilities) will probably henceforth attempt shaping international law in present global legal disorder.