Today, there is a growing fear of resurfacing protectionism, from United States’ trade-war with China, to UK’s Brexit, to the less known trade-restricting measures adopted by countries globally. The General Agreement on Trade & Tariff (GATT), superseded by the World Trade Organisation (WTO) since 1995, rendered the classic forms of protectionism such as tariffs obsolete. However, it did not defeat protectionism; instead, protectionism has evolved through its protean capacity to adapt into new and often undetectable forms, now labelled as ‘murky’ protectionism (e.g. competition law enforcement and the recent bailout packages). It is argued that there are two ways in which States can utilise competition law to impair free-trade and restrict foreign firms’ access to domestic markets: the exemption of certain anticompetitive conduct under national competition law and the strategic application of domestic competition law. This article considers competition law as an instrument of protectionist policy with comparative analysis of the US and the European Union. Using an international political economy (IPE) perspective underpinned by overlapping theories of (legal/political) realism, this article establishes that, while no direct robust empirical evidence of protectionist motivations on competition law enforcement exists, particularly on ‘merger regulation and export cartel exemptions’, the presence of political elements on the decision-making, the wide discretion granted to competition authorities and the ‘sponge’ nature of competition law present an opportunity for the use of competition law for protectionist tendencies.
{"title":"Competition Law as an Instrument of Protectionist Policy: Comparative Analysis of the EU and the US","authors":"Brian-Vincent O Ikejiaku, Cornelia Dayao","doi":"10.5334/UJIEL.513","DOIUrl":"https://doi.org/10.5334/UJIEL.513","url":null,"abstract":"Today, there is a growing fear of resurfacing protectionism, from United States’ trade-war with China, to UK’s Brexit, to the less known trade-restricting measures adopted by countries globally. The General Agreement on Trade & Tariff (GATT), superseded by the World Trade Organisation (WTO) since 1995, rendered the classic forms of protectionism such as tariffs obsolete. However, it did not defeat protectionism; instead, protectionism has evolved through its protean capacity to adapt into new and often undetectable forms, now labelled as ‘murky’ protectionism (e.g. competition law enforcement and the recent bailout packages). It is argued that there are two ways in which States can utilise competition law to impair free-trade and restrict foreign firms’ access to domestic markets: the exemption of certain anticompetitive conduct under national competition law and the strategic application of domestic competition law. This article considers competition law as an instrument of protectionist policy with comparative analysis of the US and the European Union. Using an international political economy (IPE) perspective underpinned by overlapping theories of (legal/political) realism, this article establishes that, while no direct robust empirical evidence of protectionist motivations on competition law enforcement exists, particularly on ‘merger regulation and export cartel exemptions’, the presence of political elements on the decision-making, the wide discretion granted to competition authorities and the ‘sponge’ nature of competition law present an opportunity for the use of competition law for protectionist tendencies.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":"36 1","pages":"75-94"},"PeriodicalIF":0.6,"publicationDate":"2021-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42195324","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On 22 January 2021, the Treaty on the Prohibition of Nuclear Weapons (TPNW) entered into force. The TPNW has resulted in a mixed response from the international community, instigating much discussion on certain provisions and features of the TPNW. Yet underpinning these analyses rests a commonly shared premise; that the TPNW constitutes a further example of humanitarian disarmament, placing the interests of victims and humanity at the centre of discussions of nuclear weapons and disarmament. This article seeks to reveal a coinciding yet somewhat underexplored, hidden nature of the TPNW by demonstrating how the treaty also incorporates State-based security-driven interests alongside these humanitarian aspirations. While most commentators do not deny the existence of such interests at stake in the TPNW process, few have analysed the extent to which State-based security considerations have been incorporated in the final text of the TPNW. After having revealed the continued presence of State-centred security considerations in the TPNW’s negotiation, preambular provisions and operative text, this article concludes by discussing some possible implications stemming from the determination that the TPNW is inspired by, and reflects, both humanitarian and security objectives.
{"title":"Questioning the Status of the Treaty on the Prohibition of Nuclear Weapons as a ‘Humanitarian Disarmament’ Agreement","authors":"Christopher P. Evans","doi":"10.5334/UJIEL.532","DOIUrl":"https://doi.org/10.5334/UJIEL.532","url":null,"abstract":"On 22 January 2021, the Treaty on the Prohibition of Nuclear Weapons (TPNW) entered into force. The TPNW has resulted in a mixed response from the international community, instigating much discussion on certain provisions and features of the TPNW. Yet underpinning these analyses rests a commonly shared premise; that the TPNW constitutes a further example of humanitarian disarmament, placing the interests of victims and humanity at the centre of discussions of nuclear weapons and disarmament. This article seeks to reveal a coinciding yet somewhat underexplored, hidden nature of the TPNW by demonstrating how the treaty also incorporates State-based security-driven interests alongside these humanitarian aspirations. While most commentators do not deny the existence of such interests at stake in the TPNW process, few have analysed the extent to which State-based security considerations have been incorporated in the final text of the TPNW. After having revealed the continued presence of State-centred security considerations in the TPNW’s negotiation, preambular provisions and operative text, this article concludes by discussing some possible implications stemming from the determination that the TPNW is inspired by, and reflects, both humanitarian and security objectives.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46574884","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Dutch ban on face-covering garments (BFG) has caused a considerable amount of debate in the Netherlands since its entry into force on August 1, 2019. Questions have been raised as to whether this law is discriminatory towards those who wear full-face veils for religious reasons, as these individuals, almost exclusively women, will be excluded from public life based on their religion. Inspired by this debate, this paper analyzes the Dutch BFG from a regional and international law perspective. More specifically, this paper seeks to analyze Dutch BFG in light of the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Additionally, feminist theories play an auxiliary role in specifying CEDAW obligations from a feminist perspective. While the ban may be justified from the point of view of the European Convention on Human Rights, it is problematic from the perspectives of the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination against Women. Further research should therefore investigate this tension to determine how these frameworks can be reconciled while considering that the standard set by the European Court of Human Rights only provides a minimum level of protection.
{"title":"All About That Face (No Trouble?)","authors":"Johanna Buerkert, M. Schut, Lili Szuhai","doi":"10.5334/UJIEL.533","DOIUrl":"https://doi.org/10.5334/UJIEL.533","url":null,"abstract":"The Dutch ban on face-covering garments (BFG) has caused a considerable amount of debate in the Netherlands since its entry into force on August 1, 2019. Questions have been raised as to whether this law is discriminatory towards those who wear full-face veils for religious reasons, as these individuals, almost exclusively women, will be excluded from public life based on their religion. Inspired by this debate, this paper analyzes the Dutch BFG from a regional and international law perspective. More specifically, this paper seeks to analyze Dutch BFG in light of the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Additionally, feminist theories play an auxiliary role in specifying CEDAW obligations from a feminist perspective. While the ban may be justified from the point of view of the European Convention on Human Rights, it is problematic from the perspectives of the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination against Women. Further research should therefore investigate this tension to determine how these frameworks can be reconciled while considering that the standard set by the European Court of Human Rights only provides a minimum level of protection.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":"36 1","pages":"33-51"},"PeriodicalIF":0.6,"publicationDate":"2021-03-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42673488","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The principle of proportionality refers to the criteria for fair and optimal balancing of interests. It is widely applied to international disputes and has gained institutional and scholarly acceptance in the field of international law. This paper aims to explore the longue duree of the principle, drawing on an interdisciplinary perspective on international law. It affirms the traditional role of proportionality in international legal sphere and values its familiar role in introducing flexibility in law, remaining close to its conventional interpretation. However, the paper also questions its contemporary ethos, as it is based historically on its relation to equity. To this end, it examines the historical roots of the principle as part of the early modern law of nations, as well as how such a general principle should be seen as applicable to private relationships. The aim is therefore to re-think the principle of proportionality in modern ius gentium as based on how public and private law principles need to be interpreted relative to each other and continue to be shaped continuously as an extension of their shared history. It is in this sense that we can examine the need for equity in the international sphere, which will be demonstrated concretely for three distinct areas where proportionality predominates: the law of war, the law of maritime delimitation and international human rights law.
{"title":"The Principle of Proportionality in Modern Ius Gentium","authors":"Talya Ucaryilmaz","doi":"10.5334/UJIEL.529","DOIUrl":"https://doi.org/10.5334/UJIEL.529","url":null,"abstract":"The principle of proportionality refers to the criteria for fair and optimal balancing of interests. It is widely applied to international disputes and has gained institutional and scholarly acceptance in the field of international law. This paper aims to explore the longue duree of the principle, drawing on an interdisciplinary perspective on international law. It affirms the traditional role of proportionality in international legal sphere and values its familiar role in introducing flexibility in law, remaining close to its conventional interpretation. However, the paper also questions its contemporary ethos, as it is based historically on its relation to equity. To this end, it examines the historical roots of the principle as part of the early modern law of nations, as well as how such a general principle should be seen as applicable to private relationships. The aim is therefore to re-think the principle of proportionality in modern ius gentium as based on how public and private law principles need to be interpreted relative to each other and continue to be shaped continuously as an extension of their shared history. It is in this sense that we can examine the need for equity in the international sphere, which will be demonstrated concretely for three distinct areas where proportionality predominates: the law of war, the law of maritime delimitation and international human rights law.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":"36 1","pages":"14-32"},"PeriodicalIF":0.6,"publicationDate":"2021-03-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48934193","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Most of International Investment Agreements (IIAs) contains a cooling-off period provision requiring both parties to an investment dispute to make an attempt to settle their differences amicably within a clear time frame, before initiating arbitration. The cooling-off period is triggered by the notice of dispute sent by the investor to the host-State and can range from several months up to one year. At times arbitral tribunals have considered this provision as an optional procedural requirement, others, as a condition precedent for tribunals’ jurisdiction. In either case, tribunals have exclusively focused on the consequences for the investor, whenever the investor had not complied with this waiting period by filing the arbitration prior to its elapse. However, can the cooling-off provision be construed as a procedural standard of investment protection whenever the Respondent-State does not comply with this provision by refusing to engage in consultations with the investor? This article argues so by examining the function, character and content of this provision and by shifting the focal point of arbitral precedents. Indeed, from the investor’s perspective, this provision may well be a treaty-based procedural standard of investment protection to find a cost-effective and prompt solution to a dispute whose breach may call for redress.
{"title":"Theorizing the Cooling-Off Provision as an Additional Standard of Investment Protection","authors":"D. Bella","doi":"10.5334/UJIEL.523","DOIUrl":"https://doi.org/10.5334/UJIEL.523","url":null,"abstract":"Most of International Investment Agreements (IIAs) contains a cooling-off period provision requiring both parties to an investment dispute to make an attempt to settle their differences amicably within a clear time frame, before initiating arbitration. The cooling-off period is triggered by the notice of dispute sent by the investor to the host-State and can range from several months up to one year. At times arbitral tribunals have considered this provision as an optional procedural requirement, others, as a condition precedent for tribunals’ jurisdiction. In either case, tribunals have exclusively focused on the consequences for the investor, whenever the investor had not complied with this waiting period by filing the arbitration prior to its elapse. However, can the cooling-off provision be construed as a procedural standard of investment protection whenever the Respondent-State does not comply with this provision by refusing to engage in consultations with the investor? This article argues so by examining the function, character and content of this provision and by shifting the focal point of arbitral precedents. Indeed, from the investor’s perspective, this provision may well be a treaty-based procedural standard of investment protection to find a cost-effective and prompt solution to a dispute whose breach may call for redress.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":"36 1","pages":"1-10"},"PeriodicalIF":0.6,"publicationDate":"2021-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45670655","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Developments in International and European Law","authors":"Desiree van Iersel","doi":"10.5334/ujiel.519","DOIUrl":"https://doi.org/10.5334/ujiel.519","url":null,"abstract":"","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":"35 1","pages":"56-57"},"PeriodicalIF":0.6,"publicationDate":"2020-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42368839","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On 25 February 2019 the International Court of Justice (ICJ or the Court) issued its advisory opinion on legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965. The request for the advisory opinion was made by the United Nations General Assembly (UNGA) through its Resolution 71/292. The Resolution adopted on 22 June 2017 with 94 votes in favor, 15 against and 65 abstantions. The Court held unanimously that it has jurisdiction to give the advisory opinion as requested and by 13 votes to one decided that the detachment of the Chagos Archipelago immediately before the final stage of decolonization was wrongful thus violating international law and specifically the right to self-determination. Inter alia the court was of the opinion that the agreement between the United Kingdom of Great Britain and Northern Ireland (United Kingdom) and Mauritius concluded in 1965 leaving Chagos Archipelago under administration of United Kingdom after completion of decolonization was flawed because it lacked the free expression of the will of the people on the side of Mauritius. Therefore according to the Court the United Kingdom is obliged to bring to an end its administration over Chagos Archipelago as rapidly as possible and that all members states are obliged to cooperate in the process. Eight judges presented their declarations among whom two presented a joint declaration, four judges presented separate opinions and one of the judges presented a dissenting opinion at the end of the proceedings. Thirty three states have submitted written statements. In addition the African Union organization was allowed to submit written statement. Eleven state have submitted comments related to written statements and 23 states have presented their oral argument before the ICJ. The Chagos Archipelago is located in the Indian Ocean about 500 km from the Maldives archipelago.
{"title":"Legal Consequences of The Separation of the Chagos Archipelago from Mauritius in 1965 (ICJ Advisory Opinion, 25 February 2019, General List No. 169)","authors":"Besfort T. Rrecaj","doi":"10.5334/ujiel.492","DOIUrl":"https://doi.org/10.5334/ujiel.492","url":null,"abstract":"On 25 February 2019 the International Court of Justice (ICJ or the Court) issued its advisory opinion on legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965. The request for the advisory opinion was made by the United Nations General Assembly (UNGA) through its Resolution 71/292. The Resolution adopted on 22 June 2017 with 94 votes in favor, 15 against and 65 abstantions. The Court held unanimously that it has jurisdiction to give the advisory opinion as requested and by 13 votes to one decided that the detachment of the Chagos Archipelago immediately before the final stage of decolonization was wrongful thus violating international law and specifically the right to self-determination. Inter alia the court was of the opinion that the agreement between the United Kingdom of Great Britain and Northern Ireland (United Kingdom) and Mauritius concluded in 1965 leaving Chagos Archipelago under administration of United Kingdom after completion of decolonization was flawed because it lacked the free expression of the will of the people on the side of Mauritius. Therefore according to the Court the United Kingdom is obliged to bring to an end its administration over Chagos Archipelago as rapidly as possible and that all members states are obliged to cooperate in the process. Eight judges presented their declarations among whom two presented a joint declaration, four judges presented separate opinions and one of the judges presented a dissenting opinion at the end of the proceedings. Thirty three states have submitted written statements. In addition the African Union organization was allowed to submit written statement. Eleven state have submitted comments related to written statements and 23 states have presented their oral argument before the ICJ. The Chagos Archipelago is located in the Indian Ocean about 500 km from the Maldives archipelago.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":"35 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44044144","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The aim of the article is to examine the legal position presented by the UK after the 2018 airstrikes in Syria, both from the perspective of the legality of humanitarian intervention as well as the criteria employed with regard to a humanitarian intervention in the doctrine of international law. The thesis underlying this paper is that humanitarian intervention is illegal under contemporary international law, since neither the UN Charter nor customary norms allow for a humanitarian intervention, and the UK’s legal position and the reaction thereto do not change this state of the law. The paper is divided into two parts. The first part examines the UK’s 2018 legal position in the light of international law, while the second part analyses the humanitarian intervention as invoked by the UK from the standpoint of two criteria of humanitarian intervention presented in the legal doctrine, that is, the reason behind the intervention and its goals.
{"title":"The Illegality of Humanitarian Intervention: The Case of the UK’s Legal Position Concerning the 2018 Strikes in Syria","authors":"Agata Kleczkowska","doi":"10.5334/UJIEL.483","DOIUrl":"https://doi.org/10.5334/UJIEL.483","url":null,"abstract":"The aim of the article is to examine the legal position presented by the UK after the 2018 airstrikes in Syria, both from the perspective of the legality of humanitarian intervention as well as the criteria employed with regard to a humanitarian intervention in the doctrine of international law. The thesis underlying this paper is that humanitarian intervention is illegal under contemporary international law, since neither the UN Charter nor customary norms allow for a humanitarian intervention, and the UK’s legal position and the reaction thereto do not change this state of the law. The paper is divided into two parts. The first part examines the UK’s 2018 legal position in the light of international law, while the second part analyses the humanitarian intervention as invoked by the UK from the standpoint of two criteria of humanitarian intervention presented in the legal doctrine, that is, the reason behind the intervention and its goals.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70723706","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Gender-based crimes occur to this day in armed conflicts across the globe. Forced marriages were rife in Sierra Leone, Cambodia, and Uganda, and a debate has emerged as to how they should be categorised in international criminal law (ICL). The main question this paper examines is: should forced marriages be categorised as ‘sexual slavery’ or ‘other inhumane acts’ in ICL? The principle of nullum crimen sine lege (the NCSL principle), is used as a tool by which judgments from international criminal tribunals and the ICC can be objectively assessed. Judges have generally held that it is more appropriate, in line with the NCSL principle, to categorise forced marriages as ‘other inhumane acts’. However, the paper finds that they are relying on authorities which are competent in an international human rights law (IHRL) context, but are not directly transferrable to ICL. The paper illuminates the broader debate between certainty and development in ICL and demonstrates how the tribunals and the ICC have attempted to strike a balance in cases involving forced marriages. It seeks to provide a solution which ensures that perpetrators of forced marriages in armed conflict are convicted and justice is served and respects both certainty and IHRL.
{"title":"Should Forced Marriages be Categorised as ‘Sexual Slavery’ or ‘Other Inhumane Acts’ in International Criminal Law?","authors":"Victoria Kerr","doi":"10.5334/UJIEL.473","DOIUrl":"https://doi.org/10.5334/UJIEL.473","url":null,"abstract":"Gender-based crimes occur to this day in armed conflicts across the globe. Forced marriages were rife in Sierra Leone, Cambodia, and Uganda, and a debate has emerged as to how they should be categorised in international criminal law (ICL). The main question this paper examines is: should forced marriages be categorised as ‘sexual slavery’ or ‘other inhumane acts’ in ICL? The principle of nullum crimen sine lege (the NCSL principle), is used as a tool by which judgments from international criminal tribunals and the ICC can be objectively assessed. Judges have generally held that it is more appropriate, in line with the NCSL principle, to categorise forced marriages as ‘other inhumane acts’. However, the paper finds that they are relying on authorities which are competent in an international human rights law (IHRL) context, but are not directly transferrable to ICL. The paper illuminates the broader debate between certainty and development in ICL and demonstrates how the tribunals and the ICC have attempted to strike a balance in cases involving forced marriages. It seeks to provide a solution which ensures that perpetrators of forced marriages in armed conflict are convicted and justice is served and respects both certainty and IHRL.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":"35 1","pages":"1-19"},"PeriodicalIF":0.6,"publicationDate":"2020-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45187071","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The primacy of EU law continues to be challenged by domestic courts relying on the notion of constitutional identity. These challenges are no longer limited to the Solange case law of the German Bundesverfassungsgericht (BVerfG) and the controlimiti doctrine of the Italian Corte Costituzionale. More recently, the Hungarian Constitutional Court introduced the notion of ‘historical constitutional identity’ – at a time when the rule of law and independence of the judiciary are in retreat in several parts of the EU. Against this backdrop, this article argues that the Court of Justice of the EU (CJEU) missed a formidable opportunity to clarify the outer limits of constitutional identity under Article 4(2) of the Treaty on European Union in Taricco II. Given prudential considerations as well as parallel legislative developments, it can be explained why the CJEU chose to side-step the issue. However, in the Corte Costituzionale, the CJEU found a cooperative and EU law-friendly interlocutor which would have allowed it to clarify these limits on its own terms. The CJEU cannot and should not hide from this issue forever. The next domestic court to raise this issue may be less interested in judicial dialogue and more in undermining the primacy of EU law in ever more extensive ways.
{"title":"The Elusive Contours of Constitutional Identity: Taricco as a Missed Opportunity","authors":"Robbert Bruggeman, J. Larik","doi":"10.5334/UJIEL.489","DOIUrl":"https://doi.org/10.5334/UJIEL.489","url":null,"abstract":"The primacy of EU law continues to be challenged by domestic courts relying on the notion of constitutional identity. These challenges are no longer limited to the Solange case law of the German Bundesverfassungsgericht (BVerfG) and the controlimiti doctrine of the Italian Corte Costituzionale. More recently, the Hungarian Constitutional Court introduced the notion of ‘historical constitutional identity’ – at a time when the rule of law and independence of the judiciary are in retreat in several parts of the EU. Against this backdrop, this article argues that the Court of Justice of the EU (CJEU) missed a formidable opportunity to clarify the outer limits of constitutional identity under Article 4(2) of the Treaty on European Union in Taricco II. Given prudential considerations as well as parallel legislative developments, it can be explained why the CJEU chose to side-step the issue. However, in the Corte Costituzionale, the CJEU found a cooperative and EU law-friendly interlocutor which would have allowed it to clarify these limits on its own terms. The CJEU cannot and should not hide from this issue forever. The next domestic court to raise this issue may be less interested in judicial dialogue and more in undermining the primacy of EU law in ever more extensive ways.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":"35 1","pages":"20-34"},"PeriodicalIF":0.6,"publicationDate":"2020-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41660187","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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