Turning point: maintaining the independence of the European Court of Human Rights

Kanstantsin Dzehtsiarou 2015 is a crucial year for the European Court of Human Rights: a new president will be elected, a major number of judges will be replaced. One can argue that the Court is going through a turning point in its history. The perceived independence of the Court is a key to its legitimacy, while proper, transparent and clear procedure of selection of judges is a basic requirement of such independence. The most crucial stage of the process is clearly the national round of selection of candidates. It should have clear and foreseeable rules, the information about the competition should be broadly available and the selection committee should be independent from the executives. In practice, however, this first stage is the most problematic. Continue reading

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Thu 26. March 11:24
Turning point: maintaining the independence of the European Court of Human Rights
Thu 26. March 09:10
Of Blind Men, Elephants and European Disintegration - What could and what should legal academics do against the “disintegration” of Europe?
Tue 17. March 12:10
A European Network of Constitutional Law Blogs

Up for Debate

Turning point: maintaining the independence of the European Court of Human Rights

Kanstantsin Dzehtsiarou

2015 is a crucial year for the European Court of Human Rights: a new president will be elected, a major number of judges will be replaced. One can argue that the Court is going through a turning point in its history. The perceived independence of the Court is a key to its legitimacy, while proper, transparent and clear procedure of selection of judges is a basic requirement of such independence. The most crucial stage of the process is clearly the national round of selection of candidates. It should have clear and foreseeable rules, the information about the competition should be broadly available and the selection committee should be independent from the executives. In practice, however, this first stage is the most problematic. Continue reading

107 Kanstantsin Dzehtsiarou

Of Blind Men, Elephants and European Disintegration – What could and what should legal academics do against the “disintegration” of Europe?

Franz C. Mayer

In how far is a European law scholar justified, or even obliged to man the barricades, even if only in a metaphorical sense, if and as far as the European Union and European Constitutional Law are in peril? Against the backdrop of clarifying the role of science of European constitutional law in times of European crisis, I would like to deal with the initial question in two separate steps. As a first step, I seek to explore what is behind the process of European “disintegration”. In a second step, I will then look at different levels of challenges that legal science, namely European legal science, is currently facing. It will then become evident that the employment of concepts of disintegration is not considerably more rewarding compared to other approaches. Continue reading

14 Franz C. Mayer
 Focus  Union meets Convention: How to move on with accession after CJEU Opinion 2/13

Plural Constitutionalism as Theory and Method: A Reply to Critics

Daniel Halberstam

I enjoyed the exchange on my article providing a qualified constitutional defense of Opinion 2/13. I will not delve into a point-by-point rebuttal of the critics here. Instead, I shall make three quick points and end with a methodological challenge in the interest of moving forward. Continue reading

36 Daniel Halberstam

Searching for the Ariadne‘s thread – The Legal Complexities of “Grexit” and “Graccident”

Christoph Herrmann

It seems more and more likely that Greece will not be able or willing to fulfill the reform demands by the Eurogroup, condition for the payment of available funds under the prolonged financial assistance programme, not to mention an additional programme. The immediate consequence seems obvious: Greece would, deliberately or not, have to leave the Euro. But that is tremendously problematic, legally. Should grexit or graccident still occur – the regulatory power of monetary law is sometimes limited – this would produce an aftermath of legal proceedings and generate legal uncertainty for years to come, at least in Greece. Continue reading

333 Christoph Herrmann
 Focus  Union meets Convention: How to move on with accession after CJEU Opinion 2/13

The Autonomy Paradox

Thomas Streinz

Daniel Halberstam’s “constitutional defense” of Opinion 2/13 is certainly thought-provoking, but it ultimately fails to convince. By taking on the seemingly impossible task of defending the indefensible, Daniel allows us to see more clearly what’s really wrong with the Court’s view. However, he mischaracterizes the Court’s many critics by alleging that “they rushed to embrace Strasbourg while forgetting about the constitutional dimension of EU governance along the way”. Criticism of Opinion 2/13 is grounded in more than amnesia about the distinctive character of EU constitutionalism. Rather, the true problem is precisely the Court’s interpretation of the EU’s constitutional order: it ignores the fact that accession is a constitutional requirement and engages in cherry-picking when it comes to the relationship between EU law and international law. To move accession forward, we need to unpack what I call the “autonomy paradox.” Continue reading

129 Thomas Streinz
 Focus  Union meets Convention: How to move on with accession after CJEU Opinion 2/13

It’s a stupid autonomy…

Jan Komárek

Risking further escalation of the rhetorical contest over a more catchy title, I would like to comment on Daniel Halberstam’s analysis of the ECJ’s Opinion 1/13 from a wider perspective. I would like to try to challenge the starting assumption which Daniel (and in fact also the commentators who were critical of the Opinion) makes – that the EU has a federal constitutional order, whose autonomy deserves the protection required by the ECJ. It is also because that no matter how much I find Daniel’s technical legal analysis insightful, I do not think the core issue concerns the doctrinal level. Continue reading

43 Jan Komárek
 Focus  Union meets Convention: How to move on with accession after CJEU Opinion 2/13

EU Accession to the ECHR: What to Do Next

Andrew Duff

The Opinion is the latest manifestation of the historic tension in post-war Europe between federal and international law. This is important unfinished business. Nobody can be complacent about the opening up of a gap between the human rights regime of the Council of Europe and the fundamental rights regime of the European Union. A fall-out between the ECtHR at Strasbourg and the CJEU at Luxembourg is a bad thing for European rights protection. Continue reading

346 Andrew Duff
 Focus  Union meets Convention: How to move on with accession after CJEU Opinion 2/13

Opinion 2/13 and the ‘elephant in the room’: A response to Daniel Halberstam

Sionaidh Douglas-Scott

Halberstam is right to highlight the CJEU’s focus on autonomy. But in so doing so we are missing something far more important. Human rights are here the elephant in the room. Accession to a human rights treaty should not be primarily about the autonomy of the EU legal order. It should be primarily about how best to protect human rights. Continue reading

247 Sionaidh Douglas-Scott
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Op-ed

A European Network of Constitutional Law Blogs

Constitutional_law_blogs-Logo-RZ

In many EU countries, constitutional law blogs with large audiences have emerged, putting forward pointed opinions and profound expert knowledge on topical matters of public policy. We want to connect these blogs and encourage the creation of new blogs to form a tightly-knit network of cooperation. Within one year we want to set up an organizational framework to exchange texts and authors, to launch joint debates on current constitutional issues and to establish a vibrant constitutional public sphere in Europe. For this, we need your support. Continue reading

Too big to handle: Why we are so bad at preventing catastrophes

2014-10-12 Disaster
(c) sea turtle, Flickr CC BY-NC-ND 2.0

Financial crises, genocides, environmental catastrophes, epidemics, wars – constantly things happen we knew exactly that they would a) happen with some likeliness or even certainty, and b) be absolutely horrible. And still we have let it happen. And not just because we could not help it. But because somehow, all things considered, we did not want to. We haven’t done what we could have done. We didn’t want to know what we could have known. What is this strange phenomenon about? And how can we improve ourselves? To find answers to those questions, last week an extraordinarily illustrious group of scholars from all sorts of disciplines had assembled at the Wissenschaftskolleg in Berlin. Continue reading

Will an independent Scotland stay in the EU?

2014-09-05 Schottland
(c) James Stringer, Flickr CC BY-NC 2.0

In less than two weeks we will know whether or not Scotland will remain part of the UK. In the polls, the No camp still leads, but just by a slight and shrinking margin. It might actually happen what has never happened before: One EU member state becomes two. Or, will they? Continue reading

Bosnia and the problem of generalizable human rights gauges

2014-07-15 Bosnien
(c) Amanda Robinson, Flickr CC BY-BC-ND 2.0

For five years Bosnia has been digging its heels in, refusing to align its constitution to the demands of the ECHR and to grant non-bosniacs, -serbs and -croats the right to be elected to its second chamber of legislation. Now, the Strasbourg Court has once again declared this state of affairs unacceptable. But what if it would hold other constitutional systems, such as that of the European Union, up to the standard it applies in the Bosnian case? Continue reading

Burqa Ban: My Right to Be Left Alone is Your Tough Luck

2014-07-07 Trespassing
(c) Michael Dorausch, Flickr CC BY-SA 2.0

An often heard argument in the debate on the burqa ban decision by the ECtHR is that a minimum of "vivre ensemble" is a condition of all freedom and hence a legitimate balancing factor with the rights to privacy and religious freedom. This, though, is irreconcilable with the "right to be left alone". Continue reading

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