Distorting Fundamental Norms of International Law to Resurrect the Soviet Union: The International Law Context of Russia’s Invasion of Ukraine

Netherlands International Law Review - Russia’s invasion of Ukraine which commenced on 24 February 2022 represented just the latest, albeit most devastating, intervention in a neighbouring...     

Hybrid Texts and Uniform Law? The Multilingual Case Law of the Court of Justice of the European Union

The case law of the Court of Justice of the European Union (ECJ) is shaped by the language in which it is drafted—i.e. French. However, because French is rarely the mother tongue of those drafting that case law, the texts produced are often stilted and awkward. In addition, those drafting such case law are constrained in their use of language and style of writing (owing to pressures of technology and in order to reinforce the rule of law). These factors have led to the development of a ‘Court French’ which necessarily shapes the case law produced and has implications for its development, particularly insofar as it inevitably leads to a type of precedent in that case law. That case law also undergoes many permutations of translation into and out of up to 23 different languages. The resultant texts that make up the case law are hybrid in nature—consisting of a blend of cultural and linguistic patterns, constrained by a rigid formulistic drafting style and put through many permutations of translation. The present paper investigates the production of the Court’s multilingual case law and considers whether the hybrid nature of that case law can actually aid the presentation (and thus the development) of a ‘uniform’ EU case law.     

Dignity or discrimination: what paves the road towards equal recognition of same-sex couples in the European Union?

Abstract

The article analyses possibilities for the Court of Justice of the EU to go beyond its current narrow approach towards same-sex couples’ rights within the EU non-discrimination law framework, considering a comparative treatment of dignity-based arguments. It critically reviews the CJEU’s current approach exclusively focusing on direct discrimination and the comparator paradigm. By doing so, the Court has tolerated a situation of de facto discrimination and limited advancement of same-sex rights. The question is then whether the situation could be overcome if the CJEU would follow other courts and develop reasoning based on dignity to underpin the EU non-discrimination analysis with substantive meaning. The article rejects this proposition. Dignity is not suitable because it is both too wide and to narrow to ensure certainty and substantive protection within EU non-discrimination law. While the concept of dignity protects a minimum standard and can provide a floor of rights, non-discrimination law fosters equality by imposing procedural standards and challenging measures that effect groups differently. The concepts should thus not be conflated. Instead, a consistent application of the concepts of direct and indirect discrimination seems more promising.     

Sex offender legislation in the United States: what do we know?

In the United States there has been increased public pressure to create legislation to monitor and confine sex offenders. However, to date, there has been very little empirical evidence suggesting that these laws are effective in preventing future recidivism. This article reviews the current trends in sex offender legislation, including mandatory sentencing, civil commitment, community notification, monitoring, and supervision and the impact these policies may have on sex offender recidivism and treatment.     

Should the EU Protect Democracy and the Rule of Law inside Member States?

Against the background of recent developments in Hungary, the article discusses the question whether the European Union ought to play a role in protecting liberal democracy in Member States. First, it is argued that the EU has the authority to do so, both in a broad normative sense and in a narrower legal sense (though the latter is more likely to be disputed). The article then asks whether the EU has the capacity to establish a supranational militant democracy; here it is argued that at the moment both appropriate legal instruments and plausible political strategies are missing. To remedy this situation, the article proposes a new democracy watchdog, analogous to, but more powerful than, the Venice Commission. Finally, it is asked whether EU interventions would provoke a nationalist backlash. There is insufficient evidence to decide this question, but the danger of such a backlash probably tend to be overestimated.     

Framework for the future? Exploring the possibility of majority voting in the climate negotiations

The United Nations Framework Convention on Climate Change (UNFCCC) is struggling in its attempts to address the threat of anthropogenic climate change and create an effective international climate agreement. A substantial part of the problem is consensus decision-making within the Convention. Majority voting is a potential alternative which is already being discussed within the UNFCCC. A comparative analysis of consensus and majority voting suggests that majority voting is superior in terms of both efficiency and effectiveness by allowing for quicker decision-making and semi-global approaches to a climate agreement (termed here as “Critical Mass Governance”). This paper aims to investigate how majority voting could be implemented in the UNFCCC and to consider politically feasible and effective approaches to voting arrangements for the Convention. There is a legal opportunity to introduce voting through adoption of the draft Rules of Procedure, but this faces political opposition. A type of Layered Majority Voting with larger majorities for financial and substantial matters is considered to be the optimal approach in balancing political feasibility and effectiveness. For now, voting is not politically feasible for the UNFCCC, but could be introduced into future bodies or treaties under the Convention.     

EU–China Competition Dialogue: A New Step in the Internationalisation of EU Competition Law?

EU has been the protagonist in promoting the internationalization of competition laws based on EU competition law norms. The development of China's Antimonopoly Law shows that EU has succeeded so far in establishing itself as the main reference point for China's competition regulation. The success can be mainly attributed to the EU‐China Competition Dialogue (Dialogue), a new initiative set up by EU and China in 2004. The paper reviews the internationalization of EU competition law and its characteristics. It then examines the Dialogue and how EU exported its competition law norms to one of the latest AML secondary legislations on Antimonopoly Pricing. It argues that the Dialogue's informal nature, EU's routinized technical assistance to Chinese competition authorities and its China‐oriented strategy in communication have been highly important in ensuring that the EU Competition Law becomes the main reference point for the AML. However, the paper argues that it is for the same reasons that EU faces weakness in controlling the reception of EU competition law norms by China. Based on this, the paper further illustrates that EU's understanding of competition law internationalization as reflected under the Dialogue has not undergone fundamental changes.     

Back from the future: did the LETR really prepare us for the future?

The eagerly awaited outcomes of the Legal Education and Training Review provide a richness of data on the nature and content of legal education which is invaluable for legal education researchers. However, it is argued here that in so far as the Review was concerned with context and with preparing providers of legal services for a more challenging future, it neglected or understated some key issues. The extent of change in terms of the growth in the unregulated sector and in the way services are delivered, along with significant change in the way legal education and training itself is provided were perhaps all underestimated. Importantly, it is argued that the regulatory framework of the EU and its current developments and controversies were barely touched on yet not only is that framework directly relevant but it also has much to offer in terms of experience and ideas.     

Beyond the Law?: The Justice of Deconstruction

This paper offers a close reading of Derridas essay Force of Law that emphasises the twin strengths of a deconstructive approach to questions of law and justice -- textual analysis and political context. Derridas interest is in limit or test cases, and so he engages with the fraying edges of the law, its borders, the frontiers that are most heavily policed because they are most fragile, for example capital punishment, genocide, general strikes and terrorism. Derrida undertakes an exploration of violence through a reinterpretation of Walter Benjamins Critique of Violence. At the heart of Derridas difficult argument is a demand for justice that goes beyond the cataloguing of specific injustices, and beyond the terms of Benjamins critique. The utopian impulse that underpins Force of Law is carried over into Specters of Marx, Derridas recent explicit grappling with the legacy of Marxism. The links between these two texts by Derrida implies a sustained politics of radical commitment on the part of deconstruction, a commitment to future forms of legality and egalitarianism, a theory of justice posited upon prescience rather than precedent.     

No child left behind in the European Union?: the position of Romani children

This paper analyses how different EU documents (communications, recommendations, reports and surveys, etc.) focusing on Roma frame the position of Romani children. Many studies have shown that because of their intersectional positioning, Romani children often face multiple discrimination and triple exclusion: on the basis of their ethnicity, their age and their socio-economic status. The paper comments on selected findings on Roma in the Second European Union Minorities and Discrimination Survey published by the Fundamental Rights Agency in late 2016. One of the main findings of this Survey was that 80% of Roma live below the country-specific risk of poverty line in all EU Member States in which the Survey has been conducted. By specifically examining the implication this finding has for the position of Romani children, I argue that their position is, in fact, produced and reproduced with systemic, but also everyday racism. When it comes to Roma, but specifically Romani children, not even the European Union (EU), based on principles of fundamental human rights, is immune to such phenomena.     

The Right to Development in International Law: New Momentum Thirty Years Down the Line?

The right to development (RTD) is contested in international law, politics and practice. This remains the case, despite the 30-year existence of the United Nations Declaration on the Right to Development (UNDRTD), the many substantive leads that current international law provides, and the renewed inspiration that can be drawn from Agenda 2030 and its sustainable development goals. This article explores whether there is a possible new momentum for the RTD in international law. Deep substantive and political divisions about the exact content and implications of the RTD prevail between—and within—the North and the South. Up to now these divisions have stood in the way of achieving greater normative clarity, follow-up and implementation action. This state of affairs has directed us to adopt a pragmatic approach, by which we consider the scope for revitalizing the RTD through existing provisions of international law, rather than by creating additional normative frameworks. Thus, after a short sketch of the historical evolution of the RTD, we examine the nature, substance and implications of this right as conceived in the UNDRTD. Then, we pursue the question of how existing provisions of international law could be mobilized more explicitly for the sake of revitalizing the RTD and more in particular for its actual realization in the future. Three concrete means of implementation provide at least some prospect for positive change: international cooperation for development, accountability and monitoring mechanisms, and regional and inter-regional instruments and procedures.

     

The Advent of Preventive Criminal Law: An Erosion of the Traditional Criminal Law?

Criminal law in contemporary societies is undergoing a transformation or according to some, even a paradigm shift. The reach of criminal law is now extended to terrains that were hitherto immune to criminalization. These new forms of criminalization. in post-heroic risk societies are targeting conduct well before it causes a harm. The prime examples of this preventive criminalization. are pre-inchoate offences, crimes of possession of “innocent” objects and crimes of abstract endangerment. The common trait of these offences is that they enable the so-called preponing criminal liability (Vorverlagerung), through which the earliest of preparatory acts, neutral, everyday activities such as merely standing around or merely possessing may well fall within the reach of criminal law. This phenomenon is now taking place virtually everywhere considered by many as an erosion of the traditional post-enlightenment criminal law model. Yet, proponents of the preventive criminal law are suggesting that such laws are needed in order to avert risks (terrorist attacks, for instance) while they are at preparation phase. There is, therefore, a tension between the traditional criminal law and new security interests that pose new questions which need to be addressed by a meticulous analysis. In this article I shall try to deal with following questions: Whether these preventive offences are inherently incompatible with the rule of law? How far a law-abiding nation can go in criminalizing preparatory acts? Are there any promising constraining constitutional principles or instances that delimit preventive criminalization?     

Brave New Fathers for a Brave New World? Fathers as Caregivers in an Evolving European Union

This article focuses on the role that fathers play when it comes to family responsibility, in particular the care of young children, and how EU policy and legislation have contributed to it. This is important for several reasons. From a theoretical perspective, access to care for fathers represents the other side of the access to paid employment for mothers debate, and completes the deconstruction of the two‐sphere structure. From a more practical point of view, including fathers in the work/family life reconciliation debate is essential for the achievement of important EU policies, such as employment and gender equality. Although society is ready for a change, the legislator has been slow to address it, thus fathers are still missing from the EU's reconciliation policy and legislation. Against this background, the decision of the Court of Justice in Roca Álvarez has, potentially, laid down the basis for a new model of fatherhood.     

Anything New Under the Sun? Legal Clarifications as a Polish New Tool for Interpreting Business Law

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique - The aim of this article is to critically reflect on the Polish transformation taking place in...     

Sins of the Flesh? Obscenity Law in the Era of Virtual Reality

In the near future, pornography will be interactive, and people will be able to act out their fantasies in virtual reality. What may be unsettling is that some of these fantasies will be quite deviant, including rape, pedophilia and bestiality. The question is how our culture will respond to new technologies used to fulfill these deviant fantasies. This article examines the coming changes in the sex industry and the possible legal challenges that will arise.     

The urban household in Russia and the Soviet Union, 1900–2000: Patterns of family formation in a turbulent century

Starting from census data on co-residence and household composition, the authors analyse principles of family organisation and family formation in twentieth-century urban Russia and the Soviet Union. The article uses an adapted version of the classification of households developed by Peter Laslett and Eugene Hammel to study variation in household structure for successive population censuses. Changes in this variation between cross-sections are explained with the help of additional quantitative and qualitative data and are linked to the fundamental demographic, social and economic shifts which took place in Russian society in the course of the twentieth century. The article finds a family system characterised by a tendency towards nuclear family formation, but incorporating a fairly stable element of household extension. Co-residence of three generations was both an answer to a perennial housing problem and offered important advantages in the sphere of childcare and care for the elderly. Variation and fluctuation in household structure are found to be most pronounced during the turbulent first half of the century. After a period of stability during the post-war decades of Soviet rule, post-Soviet transformations provoke new changes.     

The Professional Model of Law vs. The Business Model of Law: A Critical View of Opposing Trends in the United States of America and the People��s Republic of China

This study begins by reflecting on the literature characterizing the nature and function of a profession qua profession. It continues by arguing that based upon commonly used indicia of a profession that the practice of law in the US is de-professionalizing in significant ways and morphing towards a functioning business model. The related advantages of such a development for American society, its lawyers and their clients, including especially criminal defendants are critically discussed. It then traces the emergence and ascendancy of the rule of law in China and corresponding quest to institutionalize the practice of law in China as a profession. The study concludes by exploring the alternative advantages of applying the business model to Chinese legal practice. It recommends that embracing a paradigm shift away from the professional model towards a business model, comparable to what is happening in the US, would be to the greater advantage of Chinese lawyers in terms of enhanced authority, increased self-regulation, as well as providing greater leverage in advocating client interests.