Promotion of the right of establishment in EU: focusing on the <Emphasis Type="Italic">Imperative Requirement Doctrine</Emphasis>

Consolidation of the “Common European Market” is a key feature of the European Union, which is made possible by the freedom in movement of goods, capital, services, and people. The freedom of movement for businesses manifests itself as the right of establishment. The aim of this paper is to examine various issues surrounding the right of establishment and to analyze the position of the European Court of Justice (ECJ) in each case. The analysis of cases illustrates a consistent opinion of the ECJ: The right of establishment is highly protected, but it must be exercised in the context of national legislation. Government regulation in market access, on the other hand, must meet the imperative requirement doctrine: it must be non-discriminatory, there must be general public interest at stake, the regulation must be an effective means of promoting public interest, and the regulation must be necessary and proportional to the general interest at stake. In sum, the ECJ upholds the right of establishment but nonetheless respects the states’ specific regulatory authority as long as they conform to the imperative requirement doctrine.     

European perspectives towards the rise of Asia: contextualising the debate

To what extent can we speak of a distinctively ‘European’ security approach towards the Asia-Pacific region? In order to address that timely question, this article examines how Britain, France, Germany and the European Union (EU) are framing their evolving security roles in the Asia-Pacific region, and how those individual perspectives intersect with each other. The article identifies a number of important common features in Europe’s approaches towards security in the Asia-Pacific, namely the tendency of most European actors to emphasize the economic and diplomatic nature of their contribution to regional security, their promotion of regional multilateral security fora, their rejection of the notion that China’s rise is inherently challenging for regional and global security, and their willingness to signal their differences towards Washington’s emphasis on military power and alliance-based approach. However, and despite the existence of common traits, individual European actors show different degrees of closeness vis-à-vis the US and China and feature different perspectives regarding which security relationships they should prioritize in the region (if any), or the appropriate balance between diplomacy and security and defence cooperation. Such divergences prevent Europeans from developing a coherent security profile in the region and preclude us from speaking of a distinctively European security approach towards the Asia-Pacific.     

Why Japan and Russia have failed to solve the territorial dispute: the 1956 Joint Declaration and the mechanism of political coherence

Despite the several chances of agreement, Japan and Russia have failed to solve the dispute over the Northern Territories/South Kuril Islands. The 1956 model seems to be the most plausible method, but the lack of political coherence of the central politics and the will of negotiation became the factors that hinder the two countries from reaching an agreement. By reviewing the conflicting footprints and strategies of the two countries, the authors argue that the more democratized and diffused a political system is, the more difficult it is to come to an agreement in negotiations. This intensifies the existing theory of foreign policy decision-making process emphasizing the influence of domestic constituents.     

The EU as a global rule of law promoter: the consistency and effectiveness challenges

This paper aims to examine the consistency and effectiveness of the EU as a global promoter of values by focusing on the rule of law, one of the key values on which the EU is based and which is also supposed to guide EU’s external action. The paper first offers the diagnosis that the EU has failed to properly address a number of key issues: (i) what the EU seeks to promote under the heading ‘rule of law’, (ii) how it measures and monitors a country’s adherence to this principle and (iii) the disconnect between its external and internal policies and instruments. To address these issues, four key recommendations are made: (i) the adoption of a guidance note, (ii) the development of a transversal measurement and monitoring instrument, (iii) the adoption of a rule of law checklist and (iv) the revision of the role of EU Fundamental Rights Agency, with the view of transforming it into a ‘Copenhagen Commission’ with new powers and a broader geographical remit.     

The Restricting Claims Principle Revisited: Grounding the Means Principle on the Agent–Patient Divide

In an earlier article, I introduced the “restricting claims principle” (RCP) to explain what is right about the means principle: the idea that it is harder to justify causing or allowing someone to suffer harm if using him as a means than if causing or allowing harm as a side effect. The RCP appeals to the idea that claims not to be harmed as a side effect push to restrict an agent from doing what she would otherwise be free to do for herself or others, given an appropriate account of her baseline freedom. Claims not to be harmed as a means are not in that way ‘‘restricting.’’ The original RCP relied on a counterfactual account of the agent’s baseline freedom: What could the agent permissibly do if the patient were not present? I argue here that that counterfactual baseline fails. The revised RCP relies instead on a ‘‘toolkit baseline’’: Do the patient claims concern the property the agent needs to use? This toolkit baseline reflects the different ways that agents relate to others: as fellow agents with whom they divide up the resources of the world, and as patients who might be affected by their actions. The toolkit baseline, resting on this agent-patient divide, provides a superior account of an agent’s baseline freedom, and a better account of the moral ground for the means principle     

Is Coercion a Ground of Distributive Justice?

In his rich and stimulating book, Blake argues (among other things) that comprehensive coercion triggers egalitarian obligations of distributive justice. I argue that (1) coercion is not a necessary condition for egalitarian justice to apply; (2) Blake’s use of a moralised conception of coercion is a mistake; (3) coercion is a redundant member of any set of sufficient conditions that might explain why distributive justice applies; (4) Blake’s emphasis on providing conditions for the exercise of autonomy might support a much more cosmopolitan theory of distributive justice.     

Complicity,Collectives, and Killing in War*

Recent work on the ethics of war has struggled to simultaneously justify two central tenets of international law: the Permission to kill enemy combatants, and the Prohibition on targeting enemy noncombatants. Recently, just war theorists have turned to collectivist considerations as a way out of this problem. In this paper, I reject the argument that all and only unjust combatants are liable to be killed in virtue of their complicity in the wrongful war fought by their side, and that noncombatants are not permissible targets because they are not complicit. I then argue that just combatants have some reason to direct force against unjust combatants rather than unjust noncombatants, because they should respect the reasonable self-determining decisions of other political communities, when those communities settle on the distribution of a negative surplus of cost for which they are collectively but not individually responsible. These collectivist reasons will not fully justify the Permission and the Prohibition, but they can contribute to that justification.