scholarly journals Killing me Softly? Scrutinising the Role of Soft Law in Greece’s Response to COVID-19

2021 ◽  
Vol 12 (1) ◽  
pp. 59-76
Author(s):  
Evangelia (Lilian) TSOURDI ◽  
Niovi VAVOULA

Greece emerged as the EU’s poster child in the fight against COVID-19 during the first few months of the pandemic. In this contribution, we assess Greece’s use of soft regulation in its regulatory response to COVID-19. Using “acts of legislative content”, which can be broadly conceptualised as softly adopted hard law, the Greek government largely achieved flexibility and simplified adoption procedures without having to resort to soft law per se. The role of soft law was limited - it complemented hard law rather than constituting the primary basis of COVID-19 restrictions - but not completely negligible. Soft law instruments regulated the processing of personal data, and was also pivotal in clarifying the criminal sanctioning of COVID-related rule violations. Greece’s success in handling the first wave of the pandemic, while effective, was arguably unfair to asylum seekers who saw their right to apply for asylum curtailed, and their right to freedom of movement restricted when limitations on the rest of the population were lifted. With a second wave of infections currently in full swing, it is imperative to keep scrutinising regulatory responses to ensure that they place the health and dignity of every individual (whoever they might be) at their core and fully respect their fundamental rights.

2016 ◽  
Vol 19 (4) ◽  
pp. 346-375 ◽  
Author(s):  
Emmanuel Ebikake

Purpose The purpose of this paper is to provide an assessment of soft law as a technique for repressive and preventive anti-money laundering control (hereinafter AMLC). Design/methodology/approach This article focuses heavily on understanding the nature of international anti-money laundering (AML) law-making process. The approach towards this question is interdisciplinary and looks at the treaty and non-treaty AML obligations through a prism of two theoretical lenses (legal positivism and liberal/legal process theory) to explain the role of soft law in the area. Findings Current international effort to combat money laundering (ML) is fragmented (as evident in the enormous variety of law-making processes), despite the role of soft law. Part of the problem is the divergent nature of domestic criminal legislation, which is reflected in the choice of predicate crime and a lack of procedural rule to identify and enforce the law at the state level. To address the limit of current efforts, the paper will propose a uniform codification of AML law directed by a more representative body or commission of experts offering means of restating, clarifying and revising the law authoritatively and systematically. Research limitations/implications The research is focused mainly on the theoretical issues relating to the subject of ML and less on any empirical case study. Practical implications The paper will focus on the role of soft law as a technique for repressive and preventive AMLC. Based on current analyses of the role of soft law as an alternative to hard law or as a complement to hard law (leading to greater cooperation), it attempts to outline the possible advantages and disadvantages that soft law could have in the context of AMLC. For example, the use of soft law promotes harmonisation of international AML standards through the Financial Action Task Force, while the role of the FATF remains unclear in international law. This is important for the purpose of responsibility, as the law on state responsibility clearly states when a State is responsible, in the event of a breach, and the consequence in international law. Social implications The implication of the paper is that it contributes to the on-going debate about the increasingly role of soft law-making in international law. Originality/value The research perspective to the study of ML is theoretical and focuses on the nature of the law.


1969 ◽  
pp. 867 ◽  
Author(s):  
Lorne Sossin ◽  
Charles W. Smith

The authors examine a number of examples of "soft law": written and unwritten instruments and influences which shape administrative decision- making. Rather than rendering bureaucratic processes more transparent and cohesive, or fostering greater accountability and consistency among decision-makers, "soft law" in this context frequently reinforces artificial divisions. Moreover, it insulates decisions and decision-makers from the kinds of critical inquiry typically associated with "hard law." If it is to realize its potential as a bridge between law and policy, and lend meaning to core principles — like fairness and reliability — soft law ought to be subjected to similarly critical consideration. The authors maintain that doing so allows one to preserve soft law's promise of flexibility. Moreover, one avoids falling prey to the misleading dichotomies soft law tends to bolster in the absence of critical administrative, political, and judicial scrutiny.


2020 ◽  
Vol 1 (58) ◽  
pp. 68
Author(s):  
Jacopo PAFFARINI

ABSTRACT Objective: The objective of this paper is to expose some consequences of the economic globalization process – as well as of the recent “sovereign debt crisis” – on the normative enforcement of workplaces’ health and safety. Methodology: The methodology used is based on bibliographic and legislation research, as well as on doctrine and articles published in specialized journals. Results:It is concluded that after the Lisbon Summit of 2009, the whole matter of fundamental rights in the European Union has taken a new connotation. Local economic interests and social protests – in opposition to the “neoliberal agenda” of EU institutions – have played an important role in stopping the enforcement of the “Constitutional Treaty” and boosted an anti-Euro mobilization. In the meanwhile, the European bodies and transnational corporations have continued to settle a new and alternative basis for the integration. A radical shift can be observed, from the research of synthetic set of principles – as those established on the EU Charter of Fundamental Rights – to a deeply technical and detailed normative production. The regulation on safety and healthy workplaces is one of the best point of view to study this change. Far from calling into question the unbalanced positions between the parties in contemporary labour relationships, the European strategy for workers’ protection move through procedural issues and voluntary obedience to the soft law instruments. In the past, the legal doctrine described the creation of a multilevel architecture of institutions, sometimes implemented in a top-down approach. Along with this, recently, it was implemented the establishment of common organizational standards associated to a specific system of corporate governance to pursue a better integration between business and fundamental rights. Contributions: The main contribution of this study relates to the interdisciplinary approach, which has been carried out by means of a deep and careful study of “soft” law documents, i.e. the best practices, strategies and communications and a focus on how they can affect the enforcement/interpretation of the traditional sources of “hard” law. Keywords: Social rights; occupational health and safety; corporate governance; hard Law and soft Law; European Law. RESUMO Objetivo: O objetivo deste artigo é expor algumas consequências do processo de globalização econômica - bem como da recente "crise da dívida soberana" - na aplicação normativa da saúde e segurança dos locais de trabalho. Metodologia: A metodologia utilizada é baseada em pesquisas bibliográficas e legislativas, bem como em doutrinas e artigos publicados em periódicos especializados. Resultados:Conclui-se que, após a Conferência de Lisboa de 2009, toda a questão dos direitos fundamentais na União Europeia tomou uma nova conotação. Os interesses econômicos locais e os protestos sociais – em oposição à “agenda neoliberal” promovida pelas instituições europeias – têm desempenhado um papel importante em parar a execução do “Tratado Constitucional” e impulsionar uma mobilização anti-Euro. Neste interim, os organismos europeus e as empresas transnacionais instalaram uma base nova e alternativa para a integração. Uma mudança radical pode ser observada a partir da pesquisa de um conjunto (ainda) sintético de princípios – como os estabelecidos na Carta dos Direitos Fundamentais da União Europeia – para uma produção normativa profundamente técnica e detalhada. A regulação da segurança no local de trabalho é um dos melhores pontos de observação para estudar a transformação mencionada. Longe de pôr em causa as posições desequilibradas entre as partes nas relações de trabalho contemporâneas, a estratégia europeia para a proteção da saúde dos trabalhadores prefere as questões procedimentais e a adesão voluntária aos instrumentos de soft law. No passado, a doutrina jurídica descrevia a criação de uma arquitetura multinível de instituições, àss vezes implementada por meio de uma abordagem de cima para baixo (top-down approach). Junto com isso, recentemente, houve a implementação de padrões organizacionais comuns para a instituição de um sistema específico de governança corporativa que busca uma melhor integração entre os negócios e os direitos fundamentais. Contribuições: A principal contribuição deste estudo refere-se à abordagem interdisciplinar, realizada por meio de um estudo profundo e cuidadoso de documentos de soft law (lei não vinculativa), i. e, boas práticas, estratégias e comunicações, e um foco em como elas podem afetar a aplicação / interpretação das fontes tradicionais da hard law (lei vinculativa). Palavras-chave: Direitos sociais; segurança e saúde ocupacional; governança corporativa; hard Law e soft Law; Direito europeu.


Author(s):  
Alexander Gurkov

AbstractThis chapter considers the legal framework of data protection in Russia. The adoption of the Yarovaya laws, data localization requirement, and enactment of sovereign Runet regulations allowing for isolation of the internet in Russia paint a grim representation of state control over data flows in Russia. Upon closer examination, it can be seen that the development of data protection in Russia follows many of the steps taken at the EU level, although some EU measures violated fundamental rights and were invalidated. Specific rules in this sphere in Russia are similar to the European General Data Protection Regulation. This chapter shows the special role of Roskomnadzor in forming data protection regulations by construing vaguely defined rules of legislation.


2015 ◽  
Vol 21 (2) ◽  
pp. 472-478
Author(s):  
Gina Orga-Dumitriu

Abstract From the traditional functions of the general principles of the EU law – of interpretation, completion of the gaps and legality control, the principle of balancing seems to meet the most the exigencies of the first of these. The limits of the role of CJEU are certainly put to the test when it is called to settle conflicts between fundamental rights/fundamental freedoms. The trends formulated in Schmidberger (on the conflict between the free circulation of the commodities and the freedom of expression) or Promusicae (on the conflict between the right to the effective protection of the intellectual property and the right to the respect of the private life and the protection of the personal data) are more than illustrative. The doctrine assessments of the action of this principle reflect three fields in which the applicability thereof tends to reserve to the Court a role that is susceptible of creating controversies on its traditional extension. According to the authorized voice of Professor Norbert Reich, the balancing in the jurisprudence on the abusive clauses, the balancing for the avoidance of excessive protection and the balancing in social conflicts (making visible an aggravation of the conflict between fundamental rights and fundamental freedoms) are concerned.


2017 ◽  
Vol 33 (S1) ◽  
pp. 136-137
Author(s):  
Louise Bernier ◽  
Georges-Auguste Legault ◽  
Charles-Etienne Daniel ◽  
Suzanne Kocsis Bédard ◽  
Jean-Pierre Béland ◽  
...  

INTRODUCTION:One of the barriers of integrating ethics in Health Technology Assessment (HTA) relates to the social role of HTA (1). The aim of this study is to provide a better understanding of the way by which law circumscribes the social role of HTA. Our hypothesis: HTA's social role is embedded within a mixed governance based on hard law and soft law.METHODS:Three HTA agencies were conveniently selected for our study: Haute Autorité de santé (HAS) (France), National Institute for Health and Care Excellence (NICE) (United Kingdom) and Institut national d'excellence en santé et en services sociaux (INESSS) (Québec, Canada). Our analysis of the legal, administrative and procedural documents relating to the existence and assessment processes of these three agencies is guided by the following criteria: 1.The normative strength of the documents (categories of hard law or soft law) (2)2.The definition of the agencies’ social role (1)3.The integration of ethics in the agencies’ mandate.RESULTS:Hard law contributes to establish a general mandate and some legal legitimacy for these agencies. Soft law, grounded in the HTA producers' practices, plays a major role in the legal governance of HTA. Our results demonstrate that these agencies existing practices seem to circumscribe their social role further than their constitutive laws. In this context, social actors become responsible to define, structure and operationalize the implementation of HTA.In addition, the legal framework (hard law) through which HTA unfolds does not clearly support its structural and social role. Despite existing legal frameworks, the normative legitimacy of HTA is not entirely established, as it depends on soft law. Taken altogether, this maintains a persisting conceptual vagueness in HTA governance.CONCLUSIONS:The social role of HTA should be defined either through modifying existing legislations (hard law) or through harmonization of the agencies internal policies and regulations (soft law). Such legal initiatives would help clarify the aims of HTA evaluations: assessments (scientific) or appraisal (value-laden), and therefore give a clearer indication on how best to integrate ethics in HTA.


2021 ◽  
Vol 12 (1) ◽  
pp. 111-126
Author(s):  
Dolores UTRILLA FERNÁNDEZ-BERMEJO

Early in the COVID-19 pandemic, between March and July 2020, Spanish national and regional authorities made extensive use of soft law mechanisms to fight the spread of the virus and to tackle the consequences of the crisis. Soft law was used either as an instrument in and of itself, or as a justification for hard law instruments, with more than 200 non-binding measures being enacted by the state and by the Autonomous Communities. Spanish courts also used soft law as a tool to interpret existing hard law instruments, Such uses give rise to concerns about the transparency of administrative action and the principle of legal certainty. Moreover, the widespread use of soft law to justify the adoption of binding measures restricting fundamental rights might have consequences for democratic accountability and judicial control of executive action. This article indicates the need to reconsider the current system of constitutional and legal constraints attached to this form of regulation, by introducing some binding procedural rules relating to its adoption and its publication, and by clarifying its legal effects and the mechanism through which it can be enforced by courts.


2021 ◽  
Vol 12 (1) ◽  
pp. 93-110
Author(s):  
Flaminia APERIO BELLA ◽  
Cristiana LAURI ◽  
Giorgio CAPRA

This article considers the role of non-binding legal instruments adopted in Italy against the SARS-CoV-2 virus in the early months of 2020. To verify whether the use of such instruments restricted fundamental and human rights beyond constitutional and legal limits, the article first gives an overview of hard law measures adopted in Italy against the coronavirus. It then focuses on soft law measures, the use of which became significant only in Phase II of Italy's response to COVID-19 and argues that non-binding legal instruments provided the public with instructions on gradually returning to normal life. This contribution contains case studies on the soft law measures adopted in relation to private economic enterprise and freedom of worship. Italian soft law deployed during the COVID-19 epidemic was borne out of coordination between the state and the Regions and as the result of (even informal) dialogue with the relevant stakeholders. Despite some criticism of the soft law measures used, their role in restricting constitutionally granted rights was marginal, because only hard law measures adopted nationally and locally limited personal rights and freedoms in order to contain the pandemic.


2017 ◽  
Vol 8 (2) ◽  
pp. 111-121
Author(s):  
Manfred Weiss

This article provides a critical analysis of the EU Employment Policies legal framework. The need to focus on both the quantitative and qualitative dimensions of labour is highlighted in the first part. The second part deals with the quantitative aspects, addressing the Employment chapter, State aid, and the freedom of movement for workers. The third part discusses the qualitative side – providing an overview on the EU labour law – and addresses the limitation of the EU’s legislative powers and the need for minimum labour standards. The conclusion underlines the difficulties to get further hard law and the soft law inadequacy.


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