Conflicting Conceptions of Constitutionalism: Investment Protection from the European Union and International Perspectives

Netherlands International Law Review - International investment law as it is currently being transformed in the European Union (EU) proves to be an ideal test case for assessing global...     

Anti-Discrimination Law and the European Union

Netherlands International Law Review -     

Political Constitutionalism and the European Union

What kind of constitution is emerging in Europe? There are two approaches to answering this question. The first, a ‘foundational’ approach, rejects the premise: there can be no real constitution in the absence of a ‘demos’, a foundation which exists only nationally. The second, ‘freestanding’ approach, depicts it as paradigmatic of a broader phenomenon of cosmopolitan constitutionalism, based on individual rights guaranteed through a transnational rule of law. Rejecting both for their failure to account for European constitutionalism as a historical process of polity‐building, a third approach, ‘political constitutionalism’, is proposed, capturing the dynamic quality of constitutionalisation in the EU. From this perspective, what is emerging in Europe is a constitution that reflects a common good (predominantly conceived in economic terms), albeit one which is legally, political and socially contested. It is by capturing this complex picture of the political formation of Europe that the constitutional question will be most fruitfully pursued.     

Legal Pluralism and the European Union

Abstract:  This article advances a pluralist model of a legal system. It claims that a legal system is pluralist when it contains inconsistent rules of recognition that cannot be legally resolved from within the system. The first part of the article sets out the model, demonstrating why it requires a departure from the classical accounts of law advanced by writers such as Hart and Kelsen. The second half applies this model to actual legal orders: first, to Rhodesia during the crisis of 1965, and then to the legal orders of the European Union. It is argued that there are interesting and important points of similarity between the two.     

论临时保护请求权

专利法赋予了发明专利申请人一定限度的临时保护期请求权,但对该权利的规定归于模糊,其法律属性有待研究。实际上,临时保护期请求权不仅不是一个独立的权利,而且是一个极为孱弱的期待性权益,法律对其救济极为有限,不足以保护专利申请人的合法利益。赋予申请人完整的请求权利不会导致权利的滥用。法律有必要考虑做出适度的制度安排以确保专利申请人的利益,真正促进科技创新,实现知识产权法特别是专利法与民法制度的衔接。     

欧洲一体化与欧盟制宪:一种宪法学的解读

作为世界上最成功的目标和价值共同体 ,欧盟制宪既是欧洲一体化进展的必然结果 ,也是欧洲一体化深化和扩大的现实需要。用宪法学的理论分析欧盟制宪的动因、宪政基础 ,有利于从理论上解决欧洲宪法制定过程中可能产生的问题 ,也有利于向世界范围扩展宪政理念。     

The European Union Qualification Directive: The Creation of a Subsidiary Protection Regime

The European Union Qualification Directive is the first supranationalinstrument to seek to harmonize complementary protection (termed‘subsidiary protection’ in the EU). Though it hasshifted complementary protection beyond the realm of ad hocdomestic practices to a codified regime, it entrenches a protectionhierarchy that unjustifiably differentiates between the rightsand status accorded to Convention refugees vis-à-visbeneficiaries of subsidiary protection. This article tracesthe development of the Qualification Directive by examiningpreparatory documents and drafting records. It discusses changesto the categories of persons granted subsidiary protection aswell as to the substantive rights attaching to that status.In particular, it criticizes the narrowing-down of originally-proposedcategories of persons eligible for subsidiary protection, arguingthat omitting to provide for known groups of extra-Conventionrefugees does not eliminate them, but simply creates new categoriesof unprotected persons. It also highlights the absence of anyinternational legal basis on which to base distinctions betweenthe rights granted to Convention refugees vis-à-vis beneficiariesof subsidiary protection. It concludes that the QualificationDirective represents a regional, political manifestation ofthe broader legal concept of complementary protection, and assuch does not provide a model for emulation at the internationallevel.     

The Trade Union Movement and the European Union: Judgment Day

Abstract: The trade union movement faces a challenge to the legality of transnational collective action as violating economic freedoms in the EC Treaty. How are disparities in wages and working conditions among the Member States to be accommodated? Are national social models protected? Does the internal market allow for trade union collective action? How does EU law affect the balance of economic power in a transnational economy? What is the role of courts in resolving economic conflicts? This article analyses the responses to these questions as referred to the European Court of Justice by the English Court of Appeal and offers some conclusions. The purpose is to highlight the different positions adopted by the old Member States and the new accession Member States as regards the underlying substantive issues, and the options available to the Court of Justice in answering the questions posed.     

International Protection Considerations Regarding Colombian Asylum-Seekers and Refugees

This report has been produced by UNHCR on the basis of informationobtained from a variety of publicly available sources, analysesand comments. The report is intended for reference by thoseinvolved in the asylum determination process and concentrateson the issues most commonly raised in asylum claims lodged invarious jurisdictions. The information contained does not purportto be either exhaustive with regard to conditions in the countrysurveyed nor conclusive as to the merit of any particular claimto refugee status or asylum. Incomplete, inaccurate or incorrectinformation cannot be ruled out. The inclusion of informationin this report does not constitute an endorsement of the informationor the views of third parties. Neither does such informationnecessarily represent statements of policy or views of UNHCRor the United Nations.     

Crimes of the State: The Persecution and Protection of Refugees

When refugees arrive at the borders and on the shores of the Global North they are increasingly criminalised and subject to a range of law and order type rhetoric and practices. This paper outlines an alternative criminological engagement with the condition of refugeehood that shifts the focus from the refugee to the practices of the state. First, it splices definitions of state crime with the highly legalistic refugee definition to offer alternative conceptualisations of persecution in the determination of who is accorded the legal status of refugee. Second, it applies state crime frameworks to the increasingly restrictive and punitive refugee policies of countries in the Global North. It concludes by locating theorisations of state crime within the broader project of reconceptualising notions of sovereignty.Sharon Pickering BA(Melb), MA(Soton), PhD(Melb) lectures in Criminal Justice and Criminology at Monash University Australia. She has worked with refugees and written on forced migration issues for the past five years including her recent book Refugees and State Crime (2005 Institute of Criminology Monograph Series/Federation Press).     

Online teaching and copyright from the European Union perspective in COVID times

China-EU Law Journal - Teaching may involve the use of copyrighted works. It is very important that teachers and professors know two things: (1) what kind of contents they can use in their classes;...     

Legal Cultures in the European Union

The introductory part of the essay deals with the notion of legal culture and its categories. Later, the author sets forth the characteristics of the common law and the Roman- German legal cultures, including the legal families within them. He also touches upon the tendencies of the development of the German legal and political culture. With respect to the integration of the legal systems into the EU, the author argues as an advocate of convergence. Both basic legal cultures are being modified as, besides statutory law, judicial law becomes significant in the continental legal systems and statutory law complements case law in the common law systems. As to the integration of the Hungarian legal culture into the EU, the essay points to two principal considerations. On the one hand, when working on making our legal culture "euro-conform", we must not forget about maintaining our own legal culture. On the other hand, the Hungarian legal culture can contribute to the development of the legal system of the EU, e. g. with some of the regulations of our statute on the ethnic minorities. At the end, the author shows that the efficacy of the European law is heavily dependant upon the national legal systems.