In recent years, a growing chorus of publicists – lawyers, philosophers, political scientists and others – has discussed and often advocated the “constitutionalization” of international law, i.e. the gradual transformation of the whole or at least parts of international law into a world constitution. These “constitutionalists,” many of them having a German background, point to various recent phenomena such as international legal norms with erga omnes effects and peremptory norms (jus cogens) which seem to establish a hierarchical order of global values, going far beyond the classical inter-State relationships of coexistence and synallagmatic exchange. They further list compulsory judicial or quasi-judicial dispute settlement mechanisms (e.g., in the WTO). The constitutionalists put particular emphasis on the human rights revolution since 1945 and the rise of international criminal law that is administered by various international criminal tribunals – phenomena which have transformed individuals into (partial) subjects of international law alongside the states.

All nationals of a Member State are Union citizens, and so, in principle, these citizens fall within the scope of European Union (EU) law ratione personae. However, the protection of European citizenship status (ECS) is a necessary but not a sufficient condition for enjoying European citizenship rights (ECRs). In order to bring a case within its jurisdiction, the Court of Justice of the European Union (CJEU) should also ascertain what the link is between ECRs and the scope of EU law (ratione materiae). Recently, the CJEU ruled that securing the “genuine enjoyment of the substance of the rights attaching to the status of European Union citizenship” is a sufficient condition to bring a case within the scope of EU law. This new formula challenges the traditional cross-border test: by referring to “genuine enjoyment,” it entails rethinking the CJEU's current practice of depicting the conditions under which a citizenship case should be considered ratione personae and ratione materiae within the scope of EU law. Importantly, the interpretative crux of this new formula concerns whether the Court has really opted for an innovative test of its jurisdiction, which may detach the protection of ECRs from the current exercise of fundamental freedoms. This paper critically maps out how the CJEU has gradually strengthened both the protection of the ECS and the protection of rights attaching to such status. It argues that the Court has recognized that the de facto exercise of fundamental freedoms is not the only way to establish a link between a EU citizenship case and the scope of EU law. On the contrary, the Court ruled that Art. 20 TFEU (on Union citizenship and European citizenship rights) can be invoked by Union citizens, even if they have never exercised their free movement rights, in order to challenge national measures, which “deprive citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union.” This interpretative move raises the question whether the new test concerning the substance of the rights attaching to the status of European citizens enhances the protection of fundamental freedoms, by also safeguarding the potential exercising of these freedoms in the future, or whether it calls for including the actual protection of fundamental rights (such as the right to respect family life) in the so-called “substance” of European citizenship rights. This paper argues that the Court's present approach indicates that the former is the case, casting doubts on the central position of fundamental rights with regards to European citizenship.

The governmental role played by the United Nations in Kosovo since 1999 raises a host of questions for international lawyers. Chief among these is whether governmental acts of the United Nations Interim Administration Mission in Kosovo (UNMIK) should be subject to review within Kosovo for compliance with applicable legal standards. In principle, such review would be helpful in ensuring UNMIK accountability and in sending the message that the governors—as well as the governed—in Kosovo are subject to the rule of law. However, for many, the prospect of actors in Kosovo second-guessing decisions taken by UNMIK is problematic, partly due to a fear that review could be used to derail the UNMIK-led peacebuilding process in the territory.

A freeze-out is a transaction in which a controlling shareholder forces out the minority shareholders and compensates them in cash or stock. A successful freeze-out transaction marks the end of the exchange-traded life of a corporation—it is a “going private” transaction. A freeze-out is therefore the counterpart to an initial public offering. Whereas the latter leads to the public listing of a corporation and thus a multiplication of shareholders, the freeze-out transaction aims at reducing the number of shareholders of a corporation to one.

Some of the most magnificent achievements of human culture, from the Parthenon to Paradise Lost, have been inspired by religion and some of the worst atrocities of human history have been committed to worship its commands. In consequence, whenever questions of religion become part of the political and legal agenda of a society one might be very insecure about the solution of the problem but can be absolutely confident that the stakes are high and the discussions intense. This general observation about religious issues has gained a special dimension due to the events of September 11, 2001, and the wars in Afghanistan and Iraq. Since then the role of religions in general and of Islam in particular is at the very core of central debates of global civil society and of the deliberations and actions of policy makers.

On 14 October 2004, the Bundesverfassungsgericht (BVerfG – German Federal Constitutional Court) voided a decision by the Oberlandesgericht (Higher Regional Court) Naumburg, finding a violation of the complainant's rights guaranteed by the Grundgesetz (German Basic Law). The Decision directly addresses both the observation and application of case law from the European Court of Human Rights under the Basic Law's “rule of law provision” in Art. 20.III. While there is a myriad of important aspects with regard to this decision, we may limit ourselves at this point to the introductory aperçu contained in the holdings of the case. One of them reads as follows:

Discussing the withdrawal provision pursuant to Article I-60 of the Constitutional Treaty (CT), also referred to as the sunset clause, in the morning light of the establishment of a European Constitution is pretty much like talking about divorce on your wedding day. Before I try to start analyzing the text of this new provision, I will briefly outline the status of the legal debate on the right of withdrawal from the current EU/EC Treaty. In this context, I would like to highlight three aspects by making one political and two legal observations.

There is an increasing, or increasingly visible, societal trend in the EU and beyond—often followed by constitutional changes—that challenges inclusive constitutional values. The discourses underlying these changes emphasize the inviolability of national identity and redefine it with a strong reliance on exclusive constitutional values. This Article asserts that exclusive constitutional values—that are defined as values that question the moral equality of some members of the community—necessarily shrink the room for inclusive values, and a critical mass of exclusive values can lead to a hallowing out of a democratic order, both on the national and on the supranational level. The Article presents Hungary as a case where the populist-exclusivist elements of political rhetoric—that are also present elsewhere—became part of constitutional law and have transformed the political system. The case study shows how the redefinition of Member States' constitutional identities, along recent societal trends and exclusive constitutional values, could clash with the inclusive values of the European Union and relegate European institutions to the position of “the Other,” thereby endangering constitutional democracy. In particular, the Article shows how the rule praising and recognizing diverse Member State constitutional identities can work to embolden the already strong trend to challenge inclusive constitutional values.

This Article focuses on the accountability challenges raised by the increased involvement of Private Military and Security Companies (PMSC) in migration control. I argue that migration control activities outsourced to PMSC can be classified as high-risk operations for the purposes of the application of relevant business and human rights standards. This reclassification of migration control activities as high-risk business operations, in turn, has two significant implications in terms of establishing accountability for PMSC’s wrongful conduct. First, it acknowledges that the privatization of migration control, especially within the context of continued containment and deterrence trends, entails a high risk of human rights abuses to which PMSC may contribute, both directly and indirectly. Second, this reclassification enables us to identify heightened obligations vested upon the home state of a PMSC, as well as the heightened responsibility of PMSC themselves. The article also examines what these heightened obligations and responsibilities entail.

Evolutionary theories have always been treated by legal scholars as a sort of cousin to the legal theoretical family, both in Europe and the United States. They are nice theories, they tell interesting stories, you sometimes listen to what they have to say and when among friends, you may even quote them. However, in the modern mononuclear family, when it is time to tackle important issues and reach important decisions, or simply to celebrate some success stories, these cousins are often left outside the door, being simply “relatives” and not part of the legal family in the proper sense. A former evolutionary scholar strikingly stated in a manner that can be seen as representative of the general skepticism towards the evolutionary approach of a large segment of the legal family, “Legal scholarship should not be so timid as to depend on others for its theoretical models. We might take our inspiration where we find it, but we should build our theories within our own discipline, constrained only by the data that defines it and the criteria of quality appropriate to it.” The main objective of this article is to take the first step towards making evolutionary theory “our own discipline,” by elevating evolutionary theory from the status of “cousin” to one of “sibling” (or at least “in-laws”) of the legal family. The focus in particular is to understand why, despite the fact that the evolutionary theory approach to law (or “evolutionary theory and law”) has been present quite a while in the legal scholar's discussion, the legal world at large has left it at the front step of the legal house. Based on this analysis, the task is also to evaluate whether it is possible, after certain adjustments, to invite evolutionary theory into the larger family of legal thinking, in particular as part of the legal theories of law-making (as “legal evolutionary theory”).

In all the applications before the ECtHR concerning migration at sea, a preliminary, yet seminal, question is whether the applicants were within the jurisdiction of the respondent State, in terms of Article 1 of the European Convention on Human Rights (ECHR). This question becomes even more apposite in contemporary situations of remote interception or search and rescue operations. In addressing the matter of jurisdiction in such cases, the law of the sea becomes of significant importance. This Article argues that as the International Tribunal of the Law of the Sea (ITLOS) has often taken into account human rights considerations, similarly, the European Court of Human Rights should read into the term “jurisdiction” under Article 1 of ECHR law of the sea considerations. Far from resurrecting Banković and the strict “general international law” notion of jurisdiction under ECHR, this Article only intends to shed some light on when a State would be considered as exercising such “authority and control over persons” in the maritime domain. In so doing, this Article will focus only on the potential application of the ECHR to the most common practices of States vis-à-vis migration on the high seas, namely interception and rescue operations.

In some of his last published works, Neil MacCormick began to refer to his theoretical position as “post-positivist.” In light of the widely perceived limitations of the “positivist” label, this self-identification might seem prudent. Was it anything more? Was MacCormick's position really post-positivist? In this paper, I argue that it was not, but that this need not be viewed as a failing of MacCormick's work, since there is a sense in which modern jurisprudence cannot and need not hope to become generally post-positivist. More specifically, given the institutional context in which legal scholarship is produced, positivism is likely to be an inevitable (if not necessarily dominant) mode of theorizing about law. Yet much informative work remains to be done under the positivist rubric—not just along the lines suggested by MacCormick, but along others as well.

This Article explores whether and how contemporary constitutionalism may have triggered or facilitated populism and its illiberal agenda. In particular, it focuses on some of the legal doctrines that have characterized the growth of transnational and supranational judicial fora, contrasting them with populism in Europe. The Article first sketches the role of courts in shaping contemporary transnationalism and supranationalism in Europe. Then, it analyzes the role that the ideals of progress and equality have played in the judicialization of pan-European legal culture. Finally, it ponders the consequences of the constitutionalization process of European law for the role of democratically accountable institutions.

In an age of profound democratic anxiety, significant academic attention has been paid to the crisis in constitutional democracy. Constitutional lawyers, however, are still grappling with the relationship between public law and the current actual and perceived threats facing constitutional democracy in countries worldwide. This Introduction considers how the articles in this special volume address three pressing questions. How should we should define the current threats to democracy, and populist challenge? Second, how might public law be a potential cause or contributing factor? Third, how might public law still provide some answers to the contemporary challenges to constitutional democracy? In Prof Dixon’s view, constitutional democracy is a good worth preserving and there are models of at least relative “success” in the current constitutional universe. But Prof Dixon shares the view of many contributors to the special volume that the challenge is immense, and urgent, and that there are no easy solutions.

In the last decade, Canada has become the most important home jurisdiction for mining companies operating globally. Certain Canadian NGOs, faith groups and labor unions argue that these activities systematically give rise to conflicts between companies and local communities in circumstances where companies frequently enjoy effective impunity for the human rights violations they may commit. This assessment has prompted these groups and other likeminded actors to advocate for a series of law reform proposals.

This article attempts to present a comprehensive and coherent picture of the position occupied by science under the SPS Agreement and in the SPS case law. It claims that the approach adopted by the Appellate Body reflects the explicit language of the SPS Agreement and is predominantly based on a technical paradigm. In consequence, science plays a critical role in distinguishing between legal and illegal SPS measures.

The article argues that such an approach is generally compatible with the text of the SPS Agreement and provides a coherent SPS system. However, it also identifies certain areas, which lack coherence, as certain standards seem to violate the right of the Member States to establish an appropriate level of protection. These are: ascertainability of the risk as a precondition for valid risk assessment; strict specifity of the risk assessment in low-risk situations; the proportionality between the risk identified and the SPS measure; the notion of negligible risks; and the concept of likelihood in the quarantine risk assessments. The article claims that these standards cannot be generally applied in SPS disputes as, in certain situations, they will result in the violation of the right of the Member States to establish an appropriate level of SPS protection. Finally, a number of specific issues, which require resolution, are highlighted, namely the quality of minority scientific opinions, the relationship between the insufficiency of scientific evidence and scientific uncertainty. The article suggests that the ultimate role ascribed to science under the SPS Agreement can be assessed only after an interpretation of those issues is provided by future case law.

By its first request for a preliminary ruling, the German Constitutional Court aired its doubts about the lawfulness of the Outright Monetary Transactions (OMTs) program. In this article it is argued that the ECB's pledge in the summer of 2012 to do “whatever it takes” to safeguard the monetary policy transmission mechanism in all countries of the euro area by buying government bonds was generally compatible with EU law. However, it is argued that there is some potential for the ECB to infringe the Treaty on the Functioning of the European Union (TFEU) while acting according to this announcement. The peculiarity of the situation, the author argues, is that we might be dealing with a “self-fulfilling prophecy” in that the ECB announces a particular policy, which might not be compatible with EU law, but the act announced, will never take place because the political problem would have been resolved by the measure previously announced. The critical question in this scenario refers to how a court should react to such a situation. The author argues that a court in such a situation has to show the legal limits of the particular institution, but neither the ECJ nor the German Constitutional Court may replace the central banks' task to maintain financial stability. Finally, a comment is given on how the German Constitutional Court will react to the ECJ's decision in that case.

It is not a new insight that nowadays everything and everybody seems to be globalized. This is even true with respect to the different branches of the state. We know a lot about the globalization of the executive branch and administrative law (towards a global or international administrative law) for example. Public agencies around the world are compelled to cooperate – e.g. to change information and work together on legal cases – because many problems can only be solved by a cross-border approach. The legislative branch faces the deep influence of globalization, too. National lawmakers have to respect or transform standards and rules set by international organizations such as the WTO, NAFTA or the EU. In the EU, for example, 70–80% of national legislation in the field of economic law is based on rules set by the EU. Furthermore, the question arises whether the judiciary is also remarkably influenced by globalization. Is the judicial branch, or more precisely in the international context, the national and international judiciary, yet globalized? What role does the judge play in the context of globalization?

Due to the financial crisis, European states are struggling to make both ends meet and comply with budgetary requirements, This results in cutting pensions and the public wage bill, as well as in phasing out subsidies and other forms of assistance, Although welfare state arrangements have become more limited in the past several decades, especially now, in these times of austerity, it is worth asking how far states can go in limiting social welfare programs, On the one hand, it can be said that there need to be fundamental rights-based limits to the legitimate phasing out or cutting down of existing arrangements to ensure that a minimum level of social arrangements is at all times guaranteed. On the other hand, it is hard to curtail the legislature's freedom by setting such limits, as the political sensitivity, technical aspects, and budgetary implications of social measures seemingly do not allow for too much fundamental rights rhetoric.