Controlling the Most Dangerous Branchfrom Afar: Multilayered Counter-Terrorist Policies and the European Judiciary

2011 ◽  
Vol 2 (4) ◽  
pp. 505-522
Author(s):  
Christina Eckes

Counter-terrorist sanctions against private individuals adopted by the EU and by the UN are an exceptionally illustrative example of the executive’s power grasp, where the dangers of counter-terrorist policies and of externalized rulemaking have mutually reinforced each other. This article (re-)considers the role of the judiciary in the face of extreme exercise of externalized executive powers, demonstrates that multilayered governance has extended the powers of courts, shows that the justified exercise of judicial power has led the EU institutions and the Member States into a self-inflicted catch-22, and makes an argument that the extended powers of the executive and of the judiciary should be contained and guided by a principled choice of the constituent power. Constitutional law should require the judiciary to take a substantive approach to multilayered governance that reflects the principle of separation of powers.

Author(s):  
Evgeny Grigoryevich Kartashov

The role of the state in the processes of European integration and decentralization is analyzed, the factors of threats for it are determined. The fol- lowing common features of decentralization processes in the EU member states are highlighted as strengthening the role of the regional level, the need to choose between different models of separation of powers between different levels of go- vernment (exclusive or joint authority) and the search for ways to adequately fi- nance transferred powers. Decentralization also actualizes the problem of territo- rial inequality and patronage for European countries. It is proved that the national state is a central actor in the process of decentralization, despite the fact that this process creates certain threats to the state itself. On the one hand, the EU as a supranational organization has already limited some aspects of the sovereignty of its member states, in particular, in the area of monetary policy. With the deepening of European integration, the powers of national states and in other areas are in- creasingly limited. On the other hand, the gradual increase in the share of powers conveyed by the state to decentralized and regional authorities further weakens its role. Moreover, the increasing influence of liberalism on state policy and the introduction of competition among the main providers of public services also li- mits the possibility of the state’s influence on its internal policies. Such a dynamics gives grounds for questioning the ability of states to effectively manage their ter- ritories. At the same time, it was noted that in most EU member states, the bodies of state power have long been the guarantor of national unity in both social and territorial terms. Such a “unity of opposites” (decentralization and centralization) is unlikely to change in the medium term.


Author(s):  
Evgeny Grigoryevich Kartashov

The role of the state in the processes of European integration and decentralization is analyzed, the factors of threats for it are determined. The following common features of decentralization processes in the EU member states are highlighted as strengthening the role of the regional level, the need to choose between different models of separation of powers between different levels of government (exclusive or joint authority) and the search for ways to adequately finance transferred powers. Decentralization also actualizes the problem of territorial inequality and patronage for European countries. It is proved that the national state is a central actor in the process of decentralization, despite the fact that this process creates certain threats to the state itself. On the one hand, the EU as a supranational organization has already limited some aspects of the sovereignty of its member states, in particular, in the area of monetary policy. With the deepening of European integration, the powers of national states and in other areas are increasingly limited. On the other hand, the gradual increase in the share of powers conveyed by the state to decentralized and regional authorities further weakens its role. Moreover, the increasing influence of liberalism on state policy and the introduction of competition among the main providers of public services also limits the possibility of the state’s influence on its internal policies. Such a dynamics gives grounds for questioning the ability of states to effectively manage their territories. At the same time, it was noted that in most EU member states, the bodies of state power have long been the guarantor of national unity in both social and territorial terms. Such a “unity of opposites” (decentralization and centralization) is unlikely to change in the medium term.


2021 ◽  
Vol 13 (11) ◽  
pp. 6278
Author(s):  
Lars Carlsen ◽  
Rainer Bruggemann

The inequality within the 27 European member states has been studied. Six indicators proclaimed by Eurostat to be the main indicators charactere the countries: (i) the relative median at-risk-of-poverty gap, (ii) the income distribution, (iii) the income share of the bottom 40% of the population, (iv) the purchasing power adjusted GDP per capita, (v) the adjusted gross disposable income of households per capita and (vi) the asylum applications by state of procedure. The resulting multi-indicator system was analyzed applying partial ordering methodology, i.e., including all indicators simultaneously without any pretreatment. The degree of inequality was studied for the years 2010, 2015 and 2019. The EU member states were partially ordered and ranked. For all three years Luxembourg, The Netherlands, Austria, and Finland are found to be highly ranked, i.e., having rather low inequality. Bulgaria and Romania are, on the other hand, for all three years ranked low, with the highest degree of inequality. Excluding the asylum indicator, the risk-poverty-gap and the adjusted gross disposable income were found as the most important indicators. If, however, the asylum application is included, this indicator turns out as the most important for the mutual ranking of the countries. A set of additional indicators was studied disclosing the educational aspect as of major importance to achieve equality. Special partial ordering tools were applied to study the role of the single indicators, e.g., in relation to elucidate the incomparability of some countries to all other countries within the union.


2017 ◽  
Vol 2 (Suppl. 1) ◽  
pp. 1-8
Author(s):  
Denis Horgan ◽  
Walter Ricciardi

In the world of modern health, despite the fact that we've been blessed with amazing advances of late - the advent of personalised medicine is just one example - “change” for most citizens seems slow. There are clear discrepancies in availability of the best care for all, the divisions in access from country to country, wealthy to poor, are large. There are even discrepancies between regions of the larger countries, where access often varies alarmingly. Too many Member States (with their competence for healthcare) appear to be clinging stubbornly to the concept of “one-size-fits-all” in healthcare and often stifle advances possible through personalised medicine. Meanwhile, the legislative arena encompassing health has grown big and unwieldy in many respects. And bigger is not always better. The health advances spoken of above, an increased knowledge on the part of patients, the emergence of Big Data and more, are quickly changing the face of healthcare in Europe. But healthcare thinking across the EU isn't changing fast enough. The new technologies will certainly speak for themselves, but only if allowed to do so. Acknowledging that, this article highlights a positive reform agenda, while explaining that new avenues need to be explored.


2009 ◽  
Vol 16 (3) ◽  
pp. 271-290 ◽  
Author(s):  
Emilia Korkea-Aho

New modes of governance are proliferating at all levels, most prominently in the EU. One main characteristic of new governance is adjustability and revisability in the form of soft law. The non-binding nature of soft law is said to contribute to flexibility and diversity in Member States and to secure national autonomy. However, this article argues that while soft law may not be legally binding, it nevertheless has legal effects that throw flexibility and diversity of national action into doubt. Beginning by demonstrating that soft law may have discernible effects on practices in Member States, at the same time restricting Member State choices, the article goes on to develop a categorisation of those effects and to document them in detail. These are: judicial recognition by the European courts, explicit terms of soft law instruments, which demand special types of national implementing measures, the role played by non-state actors, and hybrid forms of regulatory instruments comprising soft and hard law provisions. The analysis shows a need to add variety to existing research on EU soft law, which has traditionally focused on the role of the judiciary in giving legal effects to soft law. Instead, we should be more attentive to the other three factors when discussing soft law. Besides the more holistic approach, research should also analyse soft law in a more case-specific manner in order to fully grasp the implications of choice of soft law in a domestic legal system.


2018 ◽  
Vol 1 (101) ◽  
pp. 819
Author(s):  
Luis Jimena Quesada

Resumen:La presente contribución adopta como hipótesis de partida la relativa influencia de los estándares internacionales en la redacción de la Constitución de 1978 y la absoluta necesidad de adaptación a la realidad del Estado supranacional e internacionalmente integrado. En este sentido, un primer enfoque permite comprobar que, a pesar del juego potencial de las disposiciones constitucionales de apertura internacional, y tras cuatro décadas de vigencia de la Carta Magna Española de 1978, la justicia constitucional y la doctrina constitucionalista no han mostrado una actitud clara y abierta hacia las exigencias jurídicas internacionales, con la excepción de un relativo entusiasmo hacia los parámetros europeos. En efecto, en la parte central del artículo, el análisis de los cuarenta años constitucionalismo democrático bajo la Constitución de 1978 revela, primeramente, un déficit de interpretación basado en soluciones internacionales más favorables, así como una incorrecta e inexplorada concepción del impacto de los tratados internacionales en el sistema constitucional de fuentes.En segundo término, se examina la proyección positiva de los estándares internacionales tanto en la «parte dogmática» (valores, principios y derechos constitucionales) como en la «parte orgánica» de la Constitución (separación de poderes y organización territorial del poder), sin olvidar el peso de los instrumentos internacionales en la defensa del orden constitucional (mecanismos ordinario —tribunal constitucional— y extraordinario —reforma constitucional—). En tercer lugar, se somete a escrutinio la responsabilidad social de la Universidad en sus tareas de enseñanza y de investigación (especialmente en situaciones domésticas conflictivas), con objeto de transferir un conocimiento avanzado a la sociedad sin banalizar o trivializar la importancia del Derecho internacional y del Derecho constitucional en la defensa democrática del orden constitucional. Por último, se completa el análisis propuesto a través de la toma en consideración del lugar que también ocupan las normas constitucionales en los tratados internacionales y el impacto de nociones como margen de apreciación nacional, identidad constitucional y otras.La conclusión principal del trabajo consiste en sostener la necesaria retroalimentación de los estándares internacionales y constitucionales, puesto que esas sinergias positivas (incluido un diálogo judicial global) seguirán propiciando el fortalecimiento del sentimiento constitucional bajo una Carta Magna Española de 1978 inserta en un contexto cada vez más globalizado.Abstract:This papers adopts as a starting hypothesis the relative degree of influence of international standards in the drafting of the 1978 Spanish Constitution and the absolute need to accommodate to the reality of an integrated State at supranational and international levels. In this sense, a first approach shows that, despite the potential role of constitutional clauses opening to international standards, and after four decades since the entry into force of the Spanish Magna Carta of 1978, constitutional justice and constitutional doctrine have not shown clear nor open behaviour towards international legal requirements, with the exception of its relative enthusiasm towards European parameters.Indeed, in the main part of this paper, the analysis of the past forty yearsof democratic constitutionalism under the 1978 Constitution reveals, first and foremost, an interpretative deficit based on more favourable international solutions, as well as an incorrect and unexplored view of the impact of international treaties within the constitutional system of sources of law.Secondly, the positive impact of international standards is examined in  connection with both the «dogmatic part» (constitutional values, principlesand rights) and the «organic part» of the Constitution (separation of powers and territorial organization of the State), without forgetting the weight of international instruments in defending the constitutional order (ordinary —constitutional court— and extraordinary —constitutional amendment— mechanisms). Thirdly, the social responsibility of Universities in their teaching and research (especially in conflicting domestic situations) is submitted to scrutiny, in order to show its key role in transferring advanced knowledge to society without trivializing the importance of both international law and constitutional law in the democratic defense of the constitutional order. Finally, the place that constitutional norms occupy in international treaties, as well as the impact of notions such as (national) margin of appreciation, constitutional identity and others, are proposed so as to complete the analysis.The main conclusion of this paper holds the necessary feedback of internationaland constitutional standards, since these positive synergies (including a global judicial dialogue) will continue to promote the strengthening of a «constitutional feeling» under the 1978 Spanish Magna Carta, which is inserted in an increasingly globalized context.Summary:1. Preliminary issues: the influence of international standards in the drafting of the 1978 Constitution and the need for consistency with the reality of an integrated State at supranational and international levels. 2. Subsequent issues: the weight of constitutional jurisdiction confinement in light of international parameters. 3. Further questions: the presence of a self-absorbed constitutionalism with respect to international sources in general and relatively enthusiastic about European sources in particular. 4. Constitutional clauses on the open acceptance of international standards: particular focus on human rights instruments. 5. The constitutional approach international treaties and the so-called control of conventionality. 6. The favourable impact of international standards on the set of constitutional values, principles and rights. 7. The impact of international standards on the organization of powers. 8. The positive role of international instruments in defending the constitutional order: 8.1. Internationalization of the constituent function and the weighting of constitutional amendments. 8.2. International standards and constitutional jurisdiction. 8.3. The inadmissible trivialization of both International and Constitutional Law. 9. International instruments’s regard for constitutional norms: the margin of (national) appreciation, the counter-limits and related notions doctrine. 10. Final remarks: the feedback between international andconstitutional standards  


2021 ◽  
Author(s):  
◽  
James Gallagher

<p>The European Union (EU) has undergone constant political and economic integration since its inception in 1952. It has developed from a community in the aftermath of World War Two, into a Union of diverse states with its own political and legal system. It is the best example of international integration and co-operation in the world.  A number of treaties represent the primary law of the EU. The treaties represent the EU’s commitment to promote human rights, freedom, democracy, equality, and the rule of law. The Treaty of Lisbon¹ was introduced and adopted by the Member States to increase participatory democracy within the EU. Originally called the Reform Treaty, it amended the existing EU and EC treaties, providing the EU with the legal framework to meet the future challenges and to respond to the increasing demands of the citizens’ for a more transparent and open institution.  The European Parliament is the only directly elected institution of the EU, and traditionally had the least amount of power of the EU institutions. The Lisbon Treaty attempted to address the so-called democratic deficit through a range of institutional reforms that recognised the importance of European citizen involvement in the EU. Citizen involvement in the EU has also been increased through the implementation of the European Citizens’ Initiative (ECI). The ECI represents a further step towards the EU becoming a true participatory democracy.  This purpose of this paper is to critically assess the democratic involvement of European citizens in the operation of the EU, and how the constitutional foundation of the EU provides for this involvement. The paper will seek to answer to what extent European Citizens’ have the ability to affect real and meaningful change upon the EU, a power that currently sits with the governments of Member States.  Democracy is often associated with the power of the citizens to affect change in the institutions that govern them. The theory of constituent power goes one step further and argues that it gives citizens the ability to alter not only the governing institutions, but the also the power that those institutions exercise. This begins with an introduction of the main institutions of the EU, before moving to discuss the theory of constituent power, before assessing what factors would be necessary for constitutent power to be successful in the EU.  ¹ Official Journal of the European Union 2007 No C 306/1 (herein after referred to as the Treaty of Lisbon). Adopted 2008, entered into force 1 December 2009.</p>


Author(s):  
Markus Patberg

This chapter presents an institutional proposal for how citizens could be enabled—in the dual role of European and national citizens—to exercise constituent power in the EU. To explain in abstract terms what an institutional solution would have to involve, it draws on the notion of a sluice system, according to which the particular value of representative bodies consists in their capacity to provide both transmission and filter functions for democratic processes. On this basis, the chapter critically discusses the proposal that the Conference of Parliamentary Committees for Union Affairs of Parliaments of the European Union (COSAC) should transform itself into an inter-parliamentary constitutional assembly. As this model allows constituted powers to continue to operate as the EU’s de facto constituent powers, it cannot be expected to deliver the functions of a sluice system. The chapter goes on to argue that a more convincing solution would be to turn the Convention of Article 48 of the Treaty on European Union into a permanent constitutional assembly composed of two chambers, one elected by EU citizens and the other by member state citizens. The chapter outlines the desirable features of such an assembly and defends the model against a number of possible objections.


Author(s):  
Jan Wouters ◽  
Michal Ovádek

This chapter studies the role of human rights in EU development policy. The place of human rights in development policy was solidified at the constitutional level with the entry into force of the Lisbon Treaty, which made the promotion of human rights in all EU external action a legal obligation. As a result, different institutional mechanisms, thematic guidelines, and dedicated instruments and strategies have been put in place to consolidate a comprehensive operational framework aimed at ensuring that EU development programs advance human rights worldwide coherently and consistently. EU development policy is a shared competence, which means that both the EU and its Member States are entitled to act within this domain, as long as national actions do not undermine EU laws and positions. The sharing of competences, however, makes it more difficult for the EU to live up to the commitment of coherent and consistent promotion of human rights. In any case, substantial amount of coordination between the EU and the Member States is required in order to deliver coherence in development policy. However, the role of the EU as a normative leader in development cooperation remains subject to a multitude of long-standing criticisms and various evaluations of EU human rights policy point to a series of mixed results and missed opportunities.


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