Light Treatment of a Complex Problem: The Law of Self-Defence in the Wall Case

In its recent Wall Opinion, the International Court of Justicegave rather short shrift to Israel’s claims that the constructionof the wall could be justified as an act of self-defence inthe sense of Article 51 United Nations Charter. This articleassesses the Court’s approach and places it in the broadercontext of ICJ pronouncements on the use of force. It suggeststhat the Court failed to appreciate the complex legal problemsto which Israel’s claim gave rise, in particular the problemof self-defence against attacks by non-state actors. It showsthat the Court’s restrictive understanding of self-defence,while following the 1986 merits judgment in the Nicaragua case,is difficult to bring in line with modern state practice, andincreases the pressure to admit other, non-written, exceptionsto Article 2(4) of the UN Charter.     

Towards Administrative Human Rights in the EU. Impact of the Charter of Fundamental Rights

Abstract: This article analyses the development of administrative human rights in the EU. It demonstrates that the new right to good administration enshrined in Article 41 of the Charter of Fundamental Rights crowns a long process of constitutionalisation of basic administrative rights in the Community. The article discusses the meaning, content, and possible impact of Article 41 of the Charter. It explains, inter alia, the doctrinal basis of a ‘right to good administration’, and its more immediate origins. It also offers a textual analysis and commentary of Article 41. Other rights, which possibly come within the concept of ‘good administration’ but are not included in Article 41, are also suggested. The article concludes with an evaluation of Article 41 of the Charter. It argues that although Article 41 is a significant development in terms of individual administrative rights, it offers a one‐sided vision of the function of administrative law.     

Human Dignity in the EU Charter of Fundamental Rights and its Interpretation Before the European Court of Justice

This article argues that the EU Charter’s dignity provisions must be given a specific, expansive European meaning that underpins the importance the EU places on fundamental rights protection as a principle EU value. To this end, the article examines the EU Charter provisions on dignity and critically analyses the case law before the EU Charter had full legal effect and after it did. It finishes with looking at three areas in which the potential for an expansive interpretation of dignity could help bring the EU closer to its people and fully respect and protect dignity: asylum, criminal justice and sexual orientation.     

The fundamental right of data protection in the European Union: in search of an uncharted right

The entry into force of the EU Charter of Fundamental Rights and the ensuing introduction of the right to data protection as a new fundamental right in the legal order of the EU has raised some challenges. This article is an attempt to bring clarity on some of these questions. We will therefore try to address the issue of the place of the right to the protection of personal data within the global architecture of the Charter, but also the relationship between this new fundamental right and the already existing instruments. In doing so, we will analyse the most pertinent case law of the Court of Luxembourg, only to find out that it creates more confusion than clarity. The lesson we draw from this overview is that the reasoning of the Court is permeated by a ‘privacy thinking’, which consists not only in overly linking the rights to privacy and data protection, but also in applying the modus operandi of the former to the latter (which are different we contend). The same flawed reasoning seems to be at work in the EU Charter of Fundamental Rights. Therefore, it is crucial that the different modi operandi be acknowledged, and that any upcoming data protection instrument is accurately framed in relation with Article 8 of the Charter.     

MAGNA CARTA 1215: A GLORIOUS FAILURE

Along with the tradition of celebrating the importance of the Charter of 1215, there is a long tradition of skepticism concerning its purpose (which was not to achieve responsible government but to preserve the property of wealthy landowners), its force (it was annulled by the Pope and repudiated by the king within a few weeks), and even its success as a peace treaty (war broke out within a few months). The author will outline the reasons for skepticism, because we can only see what there is to celebrate in 2015, if we understand that the Charter of 1215 was the failed result of a reactionary armed tax rebellion by wealthy and powerful landowners, who were not trying to make a new constitution. What is there to celebrate? The author will address that question by asking why the Charter of 1215 was neither void (as the Pope asserted) for repugnancy to the King’s authority, nor voidable for duress. The author challenges the idea that the Charter of 1215 is the foundation of the rule of law in England, arguing that the rule of law goes back farther, and that the Charter of 1215 was very limited in its impact. But it did promote the rule of law in two ways: by giving new specificity to legal duties and restrictions that the king had already been subject to, and by highlighting the country’s need for effective processes for giving effect to those duties and restrictions.     

Exploring the non-absolute nature of the right to data protection

In two recent judgements, the Court of Justice of the European Union stated that ‘The right to the protection of personal data is not, however, an absolute right, but must be considered in relation to its function in society’ (Eifert, para 48). This paper considers the ‘non-absolute’ nature of the right to data protection. Being a relatively new right, the boundaries of this right in the Charter are still somewhat unexplored. This paper considers five aspects that can be seen as setting boundaries to the otherwise absolute nature of the right to data protection: (a) consideration of the function of the right to data protection in society; (b) positive delimitations of the right that come from the formulation of the right (Article 8) in the Charter; (c) limitations on the right provided for in Article 52 of the Charter; (d) close connections with Article 7 of the Charter and Article 8 ECHR; and (e) the detailed provisions in current data protection secondary legislation and the future data protection regulation framework. Based on the reflections on each of these boundary-setting aspects, the paper argues that in spite of occasional vagueness and conflicting approaches of each of the aspects, understanding of the right to data protection has evolved since its first formulation in the Charter. There is a subtle and gradual distancing from the initial understanding of the close relationship with the right to private and family life. This gradual distancing is a positive development as the two have different foundations, scope and purposes. Yet it is only when both are taken together that the shared common objective of providing effective protection to citizens' personal and family life can be achieved.     

So Long,Farewell, Auf Wiedersehen,Adieu: Brexit and the Charter of Fundamental Rights

The UK's relationship with the Charter of Fundamental Rights of the European Union can at best be described as strained, at worst, actively hostile. The Charter was, for the UK, an unwanted child, unloved at birth, grudgingly tolerated during life, and willingly surrendered at the death of the UK's membership of the EU. This article charts the UK's approach to the Charter from its inception to its demise in the EU (Withdrawal) Act 2018. It considers, in particular, the UK's so‐called opt out from the Charter in Protocol 30 and the confusion that has been generated as a result. It then argues that the Charter will have a legacy effect in the UK, primarily through the renaissance of the general principles of law.     

Dominant Rail Undertakings under European Competition Policy

Abstract: For the last 30 years, railway transport has been in steep decline within the Community. It is argued that such a decline is not inevitable, but it is partly due to regulatory distortions that favour other transport modes. As a result of the delay in liberalisation, railways lose out in comparison to air and road transport where market opening triggered a restructuring process of the industry much earlier. An important step towards more competition has been taken with a new ‘railway package’, which liberalises rail freight transport from 2003 on. This article gives an overview of recent developments in the sector, including the status quo of liberalisation and the recently adopted legislation. Taking into account recent jurisprudence, it then analyses competition policy issues with a focus on obligations that arise for dominant railway companies under Article 82 EC. The article lastly discusses what structural changes are required to deal with structural obstacles to a competitive European railway market. It is argued that a complete separation of infrastructure operation and transport services would be the solution most compatible with the railway directives and Article 86 EC.     

Supranational Fundamental Rights or Primacy of Sovereignty?

This analysis explores in detail various aspects of the possible legal impact of ‘British’ Protocol No 30 (the so‐called opt‐out from the EU Charter of Fundamental Rights). On the basis of a legal appraisal, it concludes that the Protocol is not in any way to be understood as a substantial derogation from the standard of protection of fundamental rights in the EU or as an ‘opt‐out’ from the Charter in a substantial sense. Nevertheless, its significance is definitely not to be underestimated. Its adoption as a source of primary law enshrines a legally binding interpretation of the Charter and, in particular, an interpretation of its horizontal provisions. In Article 1(2) and Article 2, the Protocol in fact confirms that the application of the Charter cannot lead to a change in the existing competencies framework. These provisions are of a declaratory nature and apply to all Member States. In Article 1(1), the Protocol is of a constitutive nature since it rules out an extensive interpretation of what can be considered national legal acts adopted in the implementation of EU law only for those States signed up to the Protocol. This specifically means that if, in the future, as part of the application of the Charter, the Court of Justice of the EU (ECJ) has a tendency to subsume a certain area of national legislation under the ‘implementation of Union law’ outside the field of implementing standards, in the spirit of the Ellinki Radiophonia Tileorassi judgment (and subsequently allow their reviewability with respect to their conformity with the Charter), such action would be admissible only for those Member States that have not acceded to the Protocol. However, the Protocol cannot exclude the continued application of the general principles of law instead of the positively constituted fundamental rights in the Charter by the ECJ.     

The Horizontal Effect of the Charter of Fundamental Rights of the EU: Rediscovering the Reasons for Horizontality

This article analyses the horizontal effect of the Charter of Fundamental Rights of the European Union. Horizontal effect has been an integral part of the Union's application of fundamental rights, especially in the field of equality. However, the codification of fundamental rights in the Charter raises important questions as to how horizontal effect will continue to apply in the EU, particularly in the aftermath of the Court's reticent rulings in cases such as Dominguez and Association de Médiation Sociale. This article argues that the emphasis on prior approaches to horizontal effect in recent rulings fails to address the profound constitutional issues that the horizontal effect of a fundamental rights catalogue raises, which concern the role of private responsibility within the developing constitutional order of the European Union. It therefore calls for a more systematically theorised approach towards the horizontal application of fundamental rights under the Charter framework.     

抢劫铁路运营款案件的特点及侦查对策

铁路运输主要有两大部分：旅客运输和货物运输。铁路在我国的运输市场中居于主导地位，铁路是我国国民经济的主动脉。铁路运输部门每天流动着大量的客运和货运运营款，这就成为个别不法分子不惜铤而走险采取暴力手段侵害的目标。应当研究抢劫铁路运营款案件的特点及侦查对策。     

The Great Power Balance, the United Nations and What the Framers Intended: In Partial Response to Hans Kochler

This article is partly a reply to Professor Hans Köchler,who argues that the total absence of a balance of power hasbecome the fundamental predicament of the United Nations Organizationin the 21st century. He locates that problem in the veto powerof the permanent five members, saying that it creates an irreconcilablenormative contradiction with the doctrine of sovereign equality.On the contrary, this article takes a historical view and arguesthat the Framers of the United Nations (UN) Charter clearlysaw the greater opportunity which greater power brings to oilthe wheels of the machinery which they built. Choosing betweena Security Council that could act unchecked and therefore decisivelyand one which evinces a separation of powers in its design,the Framers opted for the latter. The veto separates power.Finally, Professor Köchler argues that the UN has beenmarginalized in recent events. This article argues that hisunderlying assumption, that the shift in the global power balanceof 1945 to the current unipolar imbalance of power automaticallycontroverts the power balance envisioned in the Charter, isnot wholly borne out. The Charter was not simply meant to reflectthe actual patterns of global power outside the organizationbut was intended to foster an enduring understanding of theneed to maintain a specific power balance. By putting the vetoin several hands, the Framers have required the permanent fivemembers to continuously negotiate and seek agreement among themselves.It is this which, in large part, explains observable attemptsby even would-be transgressors today to bring their action withinthe framework of Charter legality.     

The General Provisions of the Charter of Fundamental Rights of the European Union

The Charter of Fundamental Rights of the European Union provides the Union with a 'more evident' (as the European Council of Cologne asked for) framework of protection of the individuals before the public authorities within the European context, after more than thirty years (since the Stauder Case ) of full confidence in the leading role played by the jurisprudence of the Court of Justice of the European Communities. This new normative catalogue of fundamental rights (included the so called 'aspirational fundamental rights') implies one more instrument of protection which has to find its own place with regard to the protection afforded by the national Constitutions and the international agreements on human rights, particularly the European Convention on Human Rights, which are already a privileged source of inspiration for Court of Justice of the European Communities. It is the main objective of the General Provisions of the Charter to clarify which is that place and the relationship with those other levels of protection as managed by their supreme interpreters (i.e., the Constitutional—or Supreme—Courts of the Member States of the Union and the European Court of Human Rights).     

Charter and Enlargement

Current debates about the contents, status, and the future role of the EU Charter of Fundamental Rights should have a stronger 'enlargement dimension': the constitutionalisation of Europe (with the Charter as its key element) and the EU enlargement should be seen as two interrelated (and, possibly, mutually supportive) phenomena rather than as two separate challenges which must be approached one at a time. There are two main aspects to this relationship. First, the Charter may be seen as a yardstick by which the human rights credentials of the candidate states will be tested. Second (the central focus of this article), one may ask whether the candidate states, once involved in the debate about the constitutional future of Europe, will bring any constitutional insights which may affect the articulation of Charter rights. It is argued, against the background of candidate states' recent experience of constitution-making, that these insights should be embraced rather than feared, and that the current member states should resist a temptation of adopting a paternalistic approach towards the candidate states as participants in the European constitutional debate.     

The rise and fall of legislative service organisations in the United States Congress

The abolition of Legislative Service Organisations by the 104th Congress (1995–96) constituted one of its earliest achievements. Although political dissensus had surrounded the role and activities of LSOs throughout their institutional existence, the Republican victory in the 1994 congressional elections was the critical factor prompting their abolition. Prior reform attempts had faltered upon the Democratic party's post‐1954 dominance of the House of Representatives and the diffuse representational and institutional benefits which LSOs conferred upon their members. However, when, under a new Republican majority, the perceived costs of LSOs were held to exceed their benefits, the organisations were rapidly terminated. The abolition of LSOs lends new and additional support to scholars who emphasise the continued salience of party to congressional politics in the United States.     

Whatever Happened to Canadian Children's Equality Rights? A Reconsideration of the Eaton Special Education Case

This paper reconsiders the Canadian Supreme Court Decision in Eaton and examines its implications for the equality rights of Canadian children in general. The suggestion is made that a 'best interest of the child' standard cannot be met if it involves the violation of fundamental Charter rights. Segregated special education placement, when against the wishes of the parents or guardians and with no s. 1 justification, it is argued, is unconstitutional. The latter gives rise to violations of equality provisions with regard to the student's freedom of association, the right to personal autonomy in decision-making for parents in regards to their child's education, as well as, in some cases, security of the person insofar as the psychological, social and cognitive development of the disabled child is concerned. Such an exclusion from the mainstream, if imposed, it is suggested, does not generally meet the test for 'reasonableness' in accommodation consistent with Charter guarantees. The presumption in favor of integration unless the parent or guardian wishes otherwise is, it is argued, a constitutional imperative based on Charter equality rights rather than a preference for one pedagogical theory (integration) over another (segregated special education placement).     

Towards a common standard of protection of the right to housing in Europe through the charter of fundamental rights

The trend towards the financialisation of housing since the 1980s and the global financial crisis exposed a dramatic lacuna in the legal protection of the right to housing. Yet, the right to housing features not only in national and international human rights instruments, but also in the EU Charter of Fundamental Rights. Charter rights are increasingly finding expression in the case law of the Court of Justice of the European Union (CJEU). In particular, drawing on the Charter, the CJEU's interpretation of EU consumer law is moving towards a recognition of housing rights as inherent components of consumer protection. On the basis of such developments, this article examines whether there is scope to extend this human rights approach to new areas – namely, to the Mortgage Credit Directive (2014) – a major EU harmonising measure – and to the work of EU institutions now responsible for banking supervision. The article concludes that, if guided by the Charter of Fundamental Rights, the case law of the CJEU and the practice of supranational banking supervision could significantly enhance the protection of the right to housing, both at EU and Member State level.     

A bad trip for health-related human rights: implications of Momcilovic v The Queen (2011) 85 ALJR 957

Momcilovic v The Queen (2011) 85 ALJR 957; [2011] HCA 34 arose from a prosecution for drug trafficking brought under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The Australian High Court held that the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) validly conferred a power on the Victorian Supreme Court and Court of Appeal to interpret legislation in a manner consistent with a defined list of human rights. By a slim majority it also held that the Charter validly created a judicial power to "declare" a law inconsistent with one or more enumerated human rights. In reaching its decision, however, the majority supported a narrow interpretation likely to undermine the intended capacity of the Charter to act as a remedial mechanism to reform laws, regulations and administrative practices which infringe human rights and freedoms. Although Momcilovic involved interpretation of a specific State human rights law, the High Court judgments allude to significant problems should the Federal Government seek to introduce a similar charter-based human rights system. Momcilovic, therefore, represents a risk to future efforts to develop nationally consistent Australian human rights jurisprudence. This has particular relevance to health and medically related areas such as the freedom from torture and degrading and inhuman treatment and, in future, enforceable constitutional health-related human rights such as that to emergency health care.     

"Chartering" the limits of involuntary psychiatric treatment in Victoria: interpreting the Mental Health Act 1986 (Vic) in the age of the Charter of Human Rights and Responsibilities Act 2006 (Vic)

The Mental Health Act 1986 (Vic) allows for individuals with a serious mental illness to be treated on an involuntary basis either in a psychiatric hospital (on an involuntary treatment order) or in the community (on a community treatment order). The Act also establishes the Mental Health Review Board with the authority to review these orders within eight weeks of those orders being made and at least once every 12 months thereafter. This article analyses a recent decision of the board, Re Appeal of 09-085 [2009] VMHRB 1, in which the appellant challenged a decision of a psychiatrist to extend his community treatment order for a further 12 months. The appellant argued that aspects of his involuntary treatment under the Act amounted to "cruel, inhuman or degrading" treatment and therefore breached his right to freedom from "cruel, inhuman or degrading" treatment under s 10(b) of Victoria's recently enacted Charter of Human Rights and Responsibilities Act 2006 (Vic). Thus, the board was asked to consider whether the definition of "treatment" under the Act was compatible with the rights and freedoms enacted by the Charter. This was the first time that a Victorian court or tribunal had considered the impact of the Charter on involuntary psychiatric treatment. The decision was also a prelude to the Victorian Government's announcement that it would comprehensively review its mental health legislation, now the oldest in Australia. As this case highlights, in determining the future direction of mental health legislation and policy in Victoria, the Charter has been crucial.     

并入提单仲裁条款之概念辨析

并入提单的仲裁条款通常存在于根据租船合同签发的提单中。根据租船合同签发的提单,出租人通常具有承运人的法律地位,出租人为了使其根据提单对货物运输承担的义务和享有的权利尽可能的与租船合同一致,常常在提单中订入援引租船合同某些规定的条款,称为"并入条款"。而并入提单的仲裁条款正是通过并入条款而成为提单中的一部分。并入条款根据措辞的不同分为一般并入条款和特别并入条款,各国对并入条款的要求不尽相同。