This special issue of German Law Journal (GLJ) originates from a colloquium co-sponsored by the GLJ, the Miller Institute for Global Challenges and the Law, and the Center for Constitutional Transitions that took place at the Berkeley School of Law in February 2015, just over a year after the revolutionary events at Maidan Square in Kiev triggered profound changes in the geopolitical map of contemporary Europe and shook the foundations of international order.

Beyond the gravity of the crisis itself, what animates the contributions in the following pages is an attendant awareness of the need to rethink the appropriateness of disciplinary responses to the conflict in Ukraine. Though the rhetoric of brazen takeovers, cynical ploys, stealing and redeeming, chronic authoritarianism and imperialism, hypocrisy, and broken promises have all contributed to a combustible political situation in and around Ukraine, a diverse sense of outrage has also been subtly, but nonetheless decisively, structured and amplified by the vocabularies of international and constitutional law, moral arguments, and their complicated interplay. Though differing in their practical ambitions, technical vocabulary, and the professional sensibilities they cultivate, the disciplines of international law, comparative constitutional law, and normative political theory, have each upheld one of the most important components of the modern social imaginary: The idea of popular sovereignty.

The idea that the will of the people ought to be a decisive factor in resolving the crisis in Ukraine continues to unite most commentators, partisans, and scholars, irrespective of their otherwise profound ideological and political differences. From the perspective of overarching social imaginary, the ominous geopolitical crisis in Ukraine, while dangerous in its potential outcomes, appears as a family quarrel among the believers of the constitutional creed of western political modernity. Unlike another geopolitical crisis of our time—the attempts of ISIS to redraw the map of the Middle East—the situation in Ukraine is not a conflict over the existence of international legal order, but rather one over the meaning of its foundational building blocks: The internal and external self-determination of peoples, territorial integrity, and the sovereign equality of independent states.

Since the end of 2013, Germany has been governed by a “grand coalition” of the biggest parties—Chancellor Angela Merkel's Christian Democratic Union (CDU), together with its Bavarian sister, the Christian Social Union (CSU), and the Social Democratic Party (SPD). While one can generally call the hitherto work of the current government quite productive (regardless of any qualitative assessment), the first few months of the 18th legislature period painted a different picture: due to tough and slowly progressing negotiations over a new government, the German Parliament was paralyzed for a considerable time. After the election of 22 September 2013, in which Ms. Merkel's CDU missed an absolute majority, the constitutive session of the Bundestag took place on 22 October 2013, which was the last possible date within the thirty-day deadline as set out by Art. 39(2) of the Grundgesetz (German Basic Law). The new government, however, was elected not before 17 December 2013. In between, the new Bundestog could not effectively begin to work as the interplay with the government is an important part of the Parliament's work. Urgent business had to be left untouched. In order to end this deadlock, the factions of CDU/CSU and SPD took a unique step: they established a so-called “Main Committee” (Hauptausschuss), which was intended to serve as a preliminary body dealing with the most urgent tasks until a new government would finally be formed.

This work draws from accounts on the nature and legal effects of soft law instruments in EU and international law with the ultimate aim to construct a theoretical framework for recognition of EU competition soft law—guidelines, communications, notices, and the like—in the judicial discourse of national courts of the European Union. “Recognition” is used to encompass instances in which the national judiciary either explicitly interprets—that is, agrees or disagrees with—the content of competition soft instruments, or treats their substance in a roundabout, implicit way—without explicit reference to soft law in the judgment proper. This second option is called “the persuaded judiciary scenario.” Importantly, a foundational assumption of the current work is that courts do not transform soft law into hard law when subjecting the former to judicial interpretation/recognition.2

Throughout the world, there is debate about how democratic systems should adapt to the demands of their increasingly emancipated citizenries. More than ever, people desire to take part in the creation of their life circumstances. The demand for participation is paired with a growing discontent with the political elites. This article looks at the challenges in the context of Germany's system of government, discussing the leading debates of democratic reform in the EU's largest member state with some incidental remarks on other countries. Specifically, the study analyzes two core components of representative democracy—the electoral process and the parliamentary decision-making procedure—and shows how they should be reformed to ensure political stability in the long run. As a measure for the analysis, the author develops a system of four preconditions, on which successful democratic government depends: Responsiveness and political leadership on the side of the elected representatives; preparedness for participation and acceptance on the part of the represented. The article shows that optimizing democracy on the basis of these pillars is not just advisable as a matter of political prudence. In fact, Germany's constitution, the Basic Law, contains a normative expectation towards the political elites that they continuously improve democracy and ensure its appropriate functioning.

The case law of the Court of Justice of the European Union (CJEU) is one of the most important sources of European Union law. However, case law's role in EU law is not uniform. By empirically studying how the Court uses its own case law as a source of law, we explore the correlation between, on the one hand, the characteristics of a CJEU case—type of action, actors involved, and area of law—and, on the other hand, the judgment's “embeddedness” in previous case law and value as a precedent in subsequent cases. Using this approach, we test, confirm, and debunk existing scholarship concerning the role of CJEU case law as a source of EU law. We offer the following conclusions: that CJEU case law cannot be treated as a single entity; that only a limited number of factors reliably affect a judgment's persuasive or precedential power; that the Court's use of its own case law as a source of law is particularly limited in successful infringement proceedings; that case law is particularly important in preliminary references—especially those concerning fundamental freedoms and competition law; and that initiating Member State and the number of observations affects the behavior of the Court.

Under Chapter VII the UN Security Council has the authority to legally condemn certain behaviors by enacting binding measures on both states and individuals. This has been interpreted through measures undertaken by the Security Council, such as the institution of international tribunals on an inter-state level, and the imposition of sanctions on a personal level.

Focusing on Africa and Europe, this Article aspires to demonstrate how regional actors have acted in order to undermine the UN Security Chapter VII punitive cosmopolitanism, either through the institution of regional criminal courts meant to antagonize the International Criminal Court or through judicial decisions that clearly negate the Council's sanctions regime. In order to preserve international punitive cosmopolitanism, the Article will proceed to develop how regional jurisdictional initiatives can be integrated in the general international constitutional order, in both the criminal and the civil/administrative field.

The secession of Crimea and—more broadly—the conflict in Ukraine reopened questions concerning the limits of a democratic expression of the will of the people and the use of force in order to procure annexation of a territory belonging to another State. This article seeks to clarify the law governing the change of the legal status of a territory through secession and merger with another state. It argues not only that the right of self-determination does not grant an entitlement to alter the legal status of a territory, but also that general international law does not prohibit such an alteration. The rules of international law favor the stability of the existing international borders and thus the territorial status quo, but this does not mean that a unilateral attempt at altering an existing territorial arrangement automatically constitutes an internationally wrongful act. Any change of the legal status of a territory becomes illegal, however, upon an outside use of force. Such an illegality cannot be “cured” by a democratically expressed will of the people.

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.

In several golden share cases, the Court of Justice of the European Union (the “Court”) condemned Member States for reserving certain special rights in privatized companies for themselves. In spite of the Court's consistently strict approach in the golden share cases, the more recent golden share judgments demonstrate that the Court's practice is not free from uncertainties. In its case law, the Court seems to hesitate between the application of the freedom of establishment and the free movement of capital. Additionally, it is not entirely clear which measures are caught by provisions on the freedom of establishment and the free movement of capital.

This article considers whether greater accountability for EU supranational decision-making can be achieved through a combination of member states' legislative processes and EU treaty-based mechanisms. The EU is formed by member states' national consent through treaty ratification and a system of domestic pre-legislative controls on consent—parliamentary approval, public consultation and referendum—which operates to limit the nature and extent of EU law. Using the UK as an example to compare with other member states, the article contends that such domestic controls are prerequisites to national incorporation of EU law and strengthen democratic accountability. Consent alone, however, does not provide an adequate basis for accountability of supranational decisions; EU constitutional principles of citizenship, democracy, and political rights illustrate how the EU fulfills a role as protector of rights. The article further argues that the EU's protector role represents partial legitimacy and accountability for supranational decisions. Greater legitimacy and accountability derives from national parliaments' pre-legislative controls under EU law—scrutinizing legislation, monitoring subsidiarity, and exercising veto powers. The article concludes that if these controls are exercised properly, they represent powerful accountability mechanisms.

The U.S. National Security Agency has nearly unlimited authority to spy upon citizens of foreign countries while they are outside the United States. It goes almost without saying that such targeting of U.S. citizens, without any hint of individualized suspicion either of criminal wrongdoing or of being a threat to national security, would be constitutionally prohibited under the Fourth Amendment. However, the dominant view in the American legal community is that there is nothing constitutionally wrong, or even suspect, about such targeting of nonresident aliens.

This article argues that the dominant view of the law is wrong both descriptively and normatively. It is wrong with regard to the proper interpretation of the relevant constitutional case law, because that case law is more open ended and unclear than the dominant view represents it as being. And it is wrong with regard to the underlying legal and moral principles that should guide the interpretation and development of constitutional law. Those principles call for recognizing that nonresident aliens enjoy constitutional protection against unjust harms—a point argued for in a companion paper, “Constitutional Rights for Nonresident Aliens.” And those same principles imply that nonresident aliens enjoy the Fourth Amendment's prohibition on unreasonable searches and seizures.

Recently, scholars have argued of the necessity of going beyond “judicial dialogues” and “conflict-and-power” approaches to the analysis of the role of national Constitutional Courts in the Union. On the one hand, there are risks connected to a “too welcoming an approach by national constitutional courts to EU law”; on the other hand, it is possible to criticize both the Court of Justice of the EU (CJEU) and some national Constitutional Courts for other, less cooperative, decisions. I share this cautious approach for many reasons, and primarily because the preliminary ruling mechanism does not exhaust all the possible means of communication between constitutional courts and the CJEU. For instance, what Komárek calls “parallel references” can serve, in some circumstances, as a technique of alternative (or hidden) dialogue, that has favored a sort of “remote dialogue” over the years. My sole point of disagreement with this scholarly position is over the role of conflicts in this scenario. Whilst Komárek seems to confine conflicts to phenomena of mere resistance or to “‘cold’ strategic considerations,” in this work I am going to adopt a much broader idea of conflict, which goes beyond mere “conflicts and power games.”

The United Nations Charter-based international order sought to reconcile the self-determination of peoples with the inviolability of state boundaries by presuming sovereign states to be manifestations of the self-determination of the entirety of their territorial populations. This presumption, albeit nationally rebuttable, traditionally prevailed even where states could only by a feat of ideological imagination be characterized as “possessed of a government representing the whole people belonging to the territory without distinction.” But the international reaction to fragmentation in the former Yugoslavia—regarding both the initial “dissolution” and the subsequent struggle over Kosovo—called into question the rigid doctrines of the past and opened the door to secessionist claims theretofore dismissible as beyond the pale. Although no vindication of Russian intervention in Ukraine can properly be drawn from the Yugoslav cases, the Ukrainian crises help to surface the hidden dangers of an emerging jurisprudence that would allow previously inadmissible considerations—whether ethnic, historical, constitutional, or “democratic”—to compromise the territorial inviolability norm.

Is legal theory relevant to legal practice? Should legal theory be part of the academic legal curriculum? This article outlines three propositions in relation to these longstanding contentious questions. First, it argues that existing literature has pursued an inadequate argumentative strategy by (1) assuming that there is a single yes or no answer to the questions surrounding the relevance of legal theory; and (2) treating legal theory and legal practice as discrete, unrelated entities. This article distinguishes between different styles of doing legal theory and legal practice, and argues that the role of legal theory needs to factor in changes in the substance of law, legal reasoning, and legal careers. Second, focusing on European civil law countries, this article concludes that most legal theory is irrelevant for conventional legal practice. Concomitantly, it suggests that the constitutionalization, transnationalization, and Europeanization of legal systems are changing the practice of law in a way that is more congenial to theory than hitherto. It also contends that legal roles embodying a legislative standpoint within law are creating a demand for increased theoretical sophistication. Third, this article suggests what a course in legal theory, sketched along the lines of the analysis carried out, might look like.

This article builds upon the idea that the EU's regulatory efforts in the EU Area of Freedom, Security, and Justice (AFSJ) are embedded with difficulties. The article argues that the current strains in the EU-AFSJ policy-making regime are caused by two things in particular. First, the EU's tactic in the AFSJ appears to depart from the classic internal market-based formula of the removal of obstacles for market creation and thereby ventures into the EU criminal law domain with all of its inherent complexities, without an adequately matured legal framework to endorse its policies from within. Second, to the extent that the EU adopts the market theory template in the AFSJ, there are global elements to the EU's sanction policies, These features confirm a hybridity in which legal sources are interacting within the AFSJ field. There is a clear complexity to the EU's fight against financial crimes and its interaction with the multiple sources of EU law where the meanings of “regulatory” and “risk assessment” need to be clarified. This article suggests that the current approach by EU's institutions to push forward the market theory model is a mistake, and that the AFSJ needs to be analyzed within the context of “regulatory powers,” which would lead to a better understanding of the AFSJ framework. This article aims to do so by using the political science concept of “regulatory” to critique the EU's current strategy and thereby argue that the legal debate on the development of the AFSJ could benefit from a more nuanced reading of the definition of “regulatory,” and thereby help to construct the AFSJ and increase its effectiveness.

“Twenty years ago today our country fell into deep ditches of darkness—twenty years later, today, we are a country united and a nation elevated.”

Those were the words of Rwanda's Minister of Foreign Affairs, Louis Mushikiwabo, on 7 April 2014, as he spoke to the Rwandan People at the twentieth anniversary of the beginning of the Rwandan genocide. Thousands of Rwandans gathered at Rwanda's main sports stadium, the Amahoro stadium, in Kigali to mourn their losses together. Ban Kimoon, the UN Secretary-General, lit a flame at the Kigali Genocide Memorial Center and not only expressed his solidarity with all Rwandans, but also emphasized that the United Nations could and should have done more to avoid the most devastating chapter in Rwanda's history.

The jurisdictional control systems (or, to be more accurate, the quasi-jurisdictional control systems) created within the European Convention on Human Rights (ECHR) and the European Union (EU) considerably differ one from each other, besides reflecting the different origin of the treaties in which they have been fashioned; the first, in fact, is a “third system” with respect to States Parties, a system whose unique competence is the subsidiary protection of fundamental rights; the second is instead in charge of safeguarding the uniform implementation and interpretation of norms being mainly targeted at the creation of an Area of Freedom, Security and Justice, developed from the original idea of a “common market” envisaged in the 1957 Treaty of Rome.

The case C-270/12 UK v. Council and Parliament is a much-awaited judgment addressing the problem of the delegation of powers to European agencies in the financial markets. By distancing itself from the Advocate General's conclusions, the Court of Justice upheld the legitimacy of the use of Article 114 TFEU to allow the European and Securities Market Authority to prohibit or restrict certain financial products on the market. The Court also gave greater flexibility to the Meroni doctrine and superseded the Romano doctrine. The Court's decision is welcome, especially in light of the increasingly extensive use of European agencies to regulate and supervise the internal market.