Scholars today discuss international law from various methodological angles. This Article aims to add perspectives from cognitive science, namely cognitive sociology and cognitive linguistics, or, to be more precise, cognitive pragmatics. It briefly elaborates on these fields’ respective approaches, benefits, and limits. To clearly delineate the usefulness of the methodologies, this Article separately applies both approaches to the same example of a process of interpretation in international law. This Article concludes that the two cognitive approaches can help lawyers better understand and implement international law. This not only provides a description of the process of interpretation, but will hopefully enable a better practice of international law.

The way legal systems should deal with hate speech is a contested matter. The term “hate speech” itself suggests that it is a form of speech, and speech is generally protected in liberal states. However, this “speech” is either motivated by hatred or expresses hate, and such communication might not rise to the level of discourse that merits constitutional protection at all.

During the 20th century, society’s view on sexualities has undergone a severe paradigm shift. While moving away from ideas of decency and bawdiness to evaluate legitimate sexuality, concepts of autonomy and consent gained importance. This transformation is also challenging the law.1 With the broad acceptance of various forms of sexual behavior and sexual orientation, legal regulation based on morality and ethics is outdated. Recent debates on law and sexualities focus on sexual autonomy and its conditions. This is shown especially by the legal debate on sexual violence and criminal law.2 But the right to sexual autonomy does not only require adequate protection against sexual violence. As a human right, it obliges State Parties to Human Rights Treaties such as the European Convention on Human Rights and the Convention on the Elimination of Discrimination against Women to respect, protect, and fulfill sexual autonomy. This includes the guarantee of freedom from sexual violence, coercion and discrimination, as well as control over one’s own body and over the involvement in sexual interactions with others. In order to ensure the different components of sexual autonomy, sexual education and reliable access to information and medical services are necessary. This paper presents an approach concerning the multifaceted dimensions of sexual autonomy through a human rights lens.

In previous conflicts about domain names within the global address system, German judges only had to answer relatively simply legal questions. Under which conditions does a domain name, which is easily confused with another name, infringe the rights of the name owner? Pervious decisions have identified infringement in the following cases:

- The name and domain name are, to a significant degree, identical or may be easily confused with one another,

- The user of the domain name possesses no personal right to the name, and

- The name usage is likely to promote mistakes about the origin of the web-site.

This paper analyzes the possible impact of TTIP's so-called regulatory cooperation on the implementation of the precautionary principle in the EU. The European Commission argues that regulatory cooperation will not impinge on the application of the precautionary principle because, first, it does not change the legislative framework of precautionary legislation and, second, the right to regulate will be safeguarded by the TTIPs horizontal chapters. On the contrary, I argue in this paper, that these guarantees are insufficient. Given the methodological and institutional constraints presented by the TTIP's institutional design, in the long run, regulatory cooperation will undermine the precautionary approach to regulation in the EU.

Russia's absorption of Crimea violated the norm of territorial integrity, which protects states against involuntary loss of territory to other states. This article addresses two different arguments on how to deal with this violation: (1) That Ukraine lost Crimea for good and that this should be acknowledged, both politically and legally, if one seeks to forestall forcible change of interstate boundaries elsewhere; and (2) that third party countermeasures against Russia can roll back its territorial gains in Ukraine, but only if they are much more materially robustthanthey have been so far. Whilemutually incompatible, the arguments raise an important issue—how to uphold international legal norms in particular situations—an issue to which scholars of international law do not pay much detailed attention. Yet doing so is important because international legal norms leave governments with wider decision-making discretion than is commonly presumed, and different ways of upholding a norm are predisposed to generate different effects, including legal effects. Having examined the two approaches, the article argues that the best way to uphold the territorial integrity of Ukraine is by staking a middle ground between them, placing emphasis on the policy of non-recognition.

The United Kingdom has long resisted the idea of adopting a judicially reviewable bill of rights, which historically has been considered inconsistent with a core constitutional principle of parliamentary sovereignty. When adopting the Human Rights Act (HRA), the political framers insisted on preserving Parliament's final say on the legality of legislation.

The decision to authorize judicial review, while also constraining the scope of judicial remedies by withholding a power to invalidate inconsistent legislation, has introduced serious ambiguity about the function of the HRA and also about where political legitimacy resides for resolving institutional disagreements about how rights appropriately guide or constrain legislation. The first example of ambiguity is with respect to how institutional actors understand the principal function of the HRA. For example, does rights protection occur primarily through judicial review, either by authorizing the judiciary to engage in interpretive techniques that force legislative compliance, or by identifying rights constraints that parliament is expected to address by enacting remedial measures? Or instead does rights protection occur via altered political practices: by engaging bureaucrats, the executive, and Parliament in a more conscious role of identifying how rights are implicated in proposed legislation, increasing intra-institutional deliberation about justification, and facilitating pressure to implement rights-inspired amendments? The second example of ambiguity occurs with respect to political actors' responsibilities in circumstances where courts disagree that legislation complies with protected rights, as judicially interpreted. Specifically, how does the principle of parliamentary sovereignty relate to the mission of a recently adopted bill of rights? Notwithstanding formal constraints on judicial power, can Parliament's contrary judgment be considered a compelling interpretation of rights and, if so, under what circumstances and according to what criteria?

This paper explores this ambiguity in the context of debate about disenfranchising prisoners.

The United Kingdom has long considered a bill of rights as both unnecessary and inconsistent with the constitutional principle of parliamentary sovereignty. This view of inconsistency arose from the assumption that an effective bill of rights requires a judicial remedial capacity to set aside inconsistent legislation, and thus this judicial power contradicts the idea that parliament has the final say on the legality of duly enacted legislation. Yet a political willingness to experiment with where responsibility resides for remedial action helped overcome reticence to adopt a bill of rights. The HRA came into effect in 2000 and incorporates the European Convention of Human Rights into domestic law. Yet the HRA differs significantly from conventional assumptions about how a bill of rights functions. Instead of conceiving of rights protection in a court-centric manner, as occurring through binding judicial remedies to redress rights infringements that have already occurred, the HRA instead represents a more politically-oriented bill of rights. Such a politically-oriented bill of rights embodies the optimistic ideals of facilitating proactive rights protection through more rights-oriented legislative processes and relying on political willingness to enact remedies if the judiciary subsequently disagrees that legislation is consistent with Convention rights.

The HRA represents an ambitious model for rights protection that envisages rights-based scrutiny occurring at four institutional stages, three of which are oriented around the legislative process. The first of these four stages, pre-legislative review, arises from a new ministerial reporting requirement in section 19 to alert Parliament that a legislative bill is either compatible with Convention rights or that the minister is unable to claim compatibility. This reporting obligation has precipitated regular assessments by government lawyers and relevant policy officials of whether legislative initiatives are consistent with Convention rights before these become legislative bills. The second stage, parliamentary rights review, is facilitated by the creation of a specialized parliamentary rights committee—the Joint Committee on Human Rights—to review legislation from a rights perspective, which provides Parliament regular and often critical reports on the persuasiveness of the minister's earlier claim that a bill is consistent with the Convention rights. Judicial review, the third stage, occurs as a result of a new authority for judges to consider whether legislation is consistent with Convention rights. If judges determine that legislation is inconsistent with Convention rights, judicial censure can take an interpretive form under section 3 of the HRA, by altering the scope or effects of legislation through a judicial interpretation that strives to render legislation compatible with Convention rights, or it can take a more explicit form by declaring that the legislation is not compatible with Convention rights under section 4 of the HRA. The fourth stage arises from a legislative process for implementing remedial legislation in section 10 and reflects the political framers' expectations that Parliament will regularly comply with domestic and European Court of Human Rights (ECtHR) rulings of incompatibility.

Yet this highly idealized model of rights protection reflects deep and unresolved ambiguity about the nature of parliament's responsibility to pass remedial measures. This ambiguity is a direct consequence of a political attempt to construct a rights project that emphasizes a juridical approach for interpreting liberal constitutional values and yet also relies on political willingness to enact remedies. The significance of this ambiguity is intensified by the rhetorical dissonance between the claim that a strong expectation of compliance with British and ECtHR rulings exists and the very different claim that parliamentary sovereignty protects parliament's capacity to have the final say on all judgments including those involving rights.

The seriousness of this ambiguity is particularly clear in political responses to judicial rulings that the UK's comprehensive ban on prisoners' voting is inconsistent with ECtHR rulings. The paper examines political reactions to ECtHR rulings on prisoner voting in Part One. Part Two draws on the work of Jeremy Waldron to suggest the benefit of Parliament developing processes or criteria to revisit judicially-impugned legislation in order to reassess the merits of its earlier judgment and/or the justification of political reticence to implement remedial measures. Although some might interpret this argument that Parliament should reassess the justification of legislation from a rights perspective as being in serious tension with ideas associated with political constitutionalism, the author rejects this interpretation. This perception is only valid if the argument for re-evaluation is predicated on the idea that courts alone are capable of, or have legitimacy for, judgments about rights. If one rejects a court-centric position on this issue, as does the author, and yet also takes seriously the idea that a polity's fundamental rights should be respected, it is incumbent upon Parliament to find a way to critically assess and distinguish when its dissenting judgment is justified as a reasonable response to legitimate rights-based concerns, from when Parliament's dissenting opinion can only be explained as an assertion of political and constitutional power.

Global constitutionalism, an idea neither necessarily rooted in nor emerging specifically from international law, has captured the imagination of public international lawyers. Rather than adding to the plethora of suggestions of what a global constitution would and should look like, this article is about why international lawyers are interested in this idea. The literature so far has largely omitted a stocktaking of what it is that is so appealing about constitutionalism and who is particularly partial to it. When discussing global constitutionalism, international lawyers commonly assume one of two orientations: either a normative orientation (this is the type of constitutionalism we should have) or a descriptive orientation (this is the type of constitutionalism we already have). The former mostly concerns visions for “a global constitution” while the latter often concerns ideas of the process that will at some point culminate in “a global constitution;” this process is commonly referred to as “constitutionalization.” The recent co-authored book by Jan Klabbers, Anne Peters and Geir Ulfstein, The Constitutionalization of International Law, sets out to go further. It aims to see “what a constitutional international legal order could look like.” In a sense, they have therefore adopted a third orientation: one that takes the descriptive case of constitutionalism as a given and theorizes about further normative aspects in regard to the international legal order.

The province of Kosovo – 2 million people in 11,000 square kilometres of territory nestled between Serbia to the North and Albania and Macedonia to the South – was thrust into the international limelight when Serbian actions to repress Kosovo Albanian calls for independence made it a subject of international concern at the end of the 1990s. While Kosovo is not unique in becoming well-known for suffering the repressive actions of a parent state, and while it has not even enjoyed the distinction of being the only territorial administration of its time, it appears to be unique in its (potential) impact on the doctrines of international law. On a number of levels, the international community's response to the situation created by Milosevic's actions and NATO's intervention threaten to call fundamental pillars of the post-World War II order into question. It is too early to speculate conclusively on whether the NATO action in Kosovo sans Security Council approval in some measure paved the way for an emerging doctrine of “humanitarian intervention” that, in turn, opened the door to the illegal invasion of Iraq. It seems not implausible to suggest that the apparent success of unauthorised military intervention in Kosovo in stopping mass human rights violations emboldened politicians on both sides of the Atlantic in opting for a moral path over the formally legal one. In any event, grounded as they are in that history, the final status talks on the future of Kosovo represent a serious challenge to the current framing of the international order. It is these issues that this symposium wished to raise and examine.

I cannot avoid beginning on an embarrassing note –– speaking to you as possibly the next German Foreign Minister. That is a position I will have earned because it is a good old (bad) tradition in Germany that its Foreign Ministers speak English either not at all or so badly that it is better if they do not speak it. Some say that not being able to speak English is even a requirement for becoming Foreign Minister. Well, in that case my prospects are excellent. I hope you will forgive my poor English.

What is a real character of judicial (self)-government in Slovenia? Does it live up to the standards established in a well-ordered society, based on the established rule of law and consolidated democracy? This certainly is an impression that an external critical, but uniformed, observer develops when he or she approaches the legal regulation of judicial (self)-government in Slovenia. This also is an impression that has been perpetuated in academic and professional circles prior and after the enlargement of the EU. The article dispels this myth. It does so by providing a comprehensive assessment of all the bodies and processes involved in the judicial (self)-government in Slovenia. Contrary to the prevalent formalistic legal approach, which dominates the legal scholarship concerned with judicial governance and the courts more generally, the article relies on a socio-legal methodological approach. It therefore situates the system of judicial self-government in the Slovenian socio-political context in order to provide an insight into how the judicial self-government really works and to what an extent it falls short of the normative ideals prescribed by the Slovenian positive law.

Otto von Gierke wrote The Social Role of Private Law (Die soziale Aufgabe des Privatrechts) in an age of extraordinary belief in progress and pride. In 1889, the Eiffel Tower was inaugurated, Britain's Royal Navy was required by law to outdo its next two rivals combined, and Germany was forging a massive new Civil Code (Bürgerliches Gesetzbuch). Within a year, Kaiser Wilhelm II had dismissed Otto von Bismarck: The old Iron Chancellor, who had unified a ‘Second’ Reich but no longer moved fast enough to secure a “place in the sun.” Ages of great confidence often see codes of law: Justinian's Corpus Juris Civilis in a reunited West and Eastern Rome; the Code Civil of the Napoleonic Empire; the Penal, Contract or Trust Acts from 1860 to 1882 across the British Empire; and the US Code of 1926. A desire for legal certainty sometimes drives reform, but rarely as much a desire to display superiority. The flicker of history must be made to seem timeless, like laws seem in printed word.

On May 5, 2020, the German Federal Constitutional Court issued the PSPP decision, sending shock waves through the European Union. This contribution analyzes the consequences of the PSPP decision for the future relationship between the German FCC and the CJEU and for European integration as a whole. The article consists of four parts. First, I will provide some context and model the interaction between domestic and international courts from a rational choice perspective. Second, I will recapitulate some core aspects of the relationship between the German Federal Constitutional Court and the CJEU in particular. I argue that the relationship between both courts had evolved into a strategic equilibrium in which it was costly not to respect the decision of the other party. The third section then looks for reasons why Karlsruhe nevertheless deviated from this equilibrium despite the significant costs involved. The fourth section, finally, considers the way ahead and analyzes what possible consequences for the future relationship between the Federal Constitutional Court and the CJEU.

This Article contributes to the discussion about the development of international trade regulation of state interventionism by situating the tensions that exist about the future design of subsidies and state enterprises treaty regulation in the broader context of current systemic challenges to the multilateral trading system. While recent studies have explored the issues of subsidies and state-owned enterprises (SOEs) as one of the most significant in impact among the contemporary challenges to the WTO, there is certainly scope to discuss further such a problem from the broader point of view of the crisis of the multilateral trading system, its systemic challenges and the concomitant increasing politicization of international trade relations. To this end, this Article analyzes the interactions between the lasting decline of the WTO, growing political interferences with international trade flows and the prospects of reforming multilateral trade rules to address its systemic challenges and manage/mitigate newly central problems of the 21st century such as the Covid-19 Pandemic, climate change and the greening of economic production and international trade. The Article argues that existing WTO rules are not adequate to address these challenges and problems. It concludes that, like in the GATT era, it is only the spirit of pragmatism that may provide chances to find alternatives to growing frustration with negotiating inaction and, hence, to reform the system. However, the question remains whether it is possible to find an approach to imagine, remodel and craft multilateral rules that are sensitive to different economic, political, and social choices and able to rebalance the position of all members, large and small, rich and poor.

This article discusses two landmark judgements by the German Federal Constitutional Court (CC) on the relationship between domestic and EU fundamental rights protection (Right to be forgotten I and II). In these judgements, for the first time, the CC uses EU fundamental rights as a standard of review. In addition, the CC establishes a novel framework of “parallel applicability” of EU and domestic fundamental rights for subject matters that are not fully harmonized by EU law. The article first presents the new approach, showing that it structurally changes the parameters of the relationship between the CC and the CJEU. Second, the article assesses the legal-political tendency reflected in this change: is this constructive dialogue or rather pushback against the CJEU? The article argues that this new jurisprudence should be characterized as an instance of resistance. The CC resists against the CJEU in its function as fundamental rights court, attempting to reduce the authority of the CJEU and reversing a development that it considered to be unfavourable to its own authority. This is structural pushback aimed at the CJEU’s function rather than at individual decisions or norms - however, without rejection the CJEU as an institution altogether.

Phenomena such as cloud computing, but also ambient technology, chain informatization, and social networking sites put into question the continuing applicability and relevance of existing legal frameworks, in particular the European Data Protection Directive (henceforth the DPD or the Directive), which dates back to 1995. Its framework of assigning roles of controller and processor appears to stand up no longer. It can be argued that it does not help any more in assigning responsibility for the processing of personal data. By a strict application of the DPD, the data subject can even be construed as playing the role of controller. Not only does the functioning of the principles of the roles need a reconsideration, but other essential principles, such as that of purpose-binding, require it, as well. For example, because data, which in a social networking context are disclosed to friends, are also used for targeted advertising and tailoring services, etc., the purpose-binding called for by the DPD becomes, at the very least, opaque. Furthermore, assigning responsibility to the actual processor in charge is just as unclear. Therefore, these current phenomena make clear that the conceptual foundations of the legislative frameworks, which purport to facilitate and protect privacy, require reflection.

The Council of Europe on July 3, 2001, released the Second Report on Germany prepared by its European Commission against Racism and Intolerance (ECRI). (1) ECRI is a mechanism to combat racism, xenophobia, antisemitism and intolerance that was established by the Heads of State and Government of the Member States of the Council of Europe at their Summit in Vienna on October 9, 1993, and improved during the Strasbourg Summit held on October 10–11, 1997.

The Bologna Declaration of 19 June 1999, committed 29 European nations, including Germany, to develop a system of higher education

On 3 December 2001 the German Minister of Justice, Herta Däubler-Gmelin, presented a draft of legislation aiming at the elimination of discrimination in the private sector and declared her firm determination to have the law passed before the end of this parliamentary term. Presentation of the draft legislation complied with paragraph IX.10 of the Coalition Agreement of 20 October 1998, which anticipates these efforts.