Abstract The concept of a systemic fundamental rights violation refers to a particular set of violations that are both widespread and embedded, so their reoccurrence may be assumed to be likely. It takes on at least two distinctive roles in EU asylum law and policy. One role is linked with the functioning of the principle of mutual trust, a principle that obliges Member States to recognise each others’ systems and decisions, presuming them to be legal, apart from exceptional cases. In this context, the principle sets the standard from when the presumption of legality is rebutted. In its conceptualisation and application, it is in tension with European human rights law, and, for a period, set up frictions between the CJEU (in NS/ME and Opinion 2/13 ) and the ECtHR (in MSS and Tarakhel ). This tale of judicial frictions is not merely of historical interest. Its legacy is, we conclude, a thin concept of systemic breach, characterised by an over-individualized approach to assessing the human rights risks. The second role for the concept of systemic violations relates to embedded violations, including at the EU’s external borders. We demonstrate the utility of this other invocation, in particular as systemic breaches often signal deeper rule of law issues both within particular national systems and embedded within the Common European Asylum System (CEAS). We illustrate that the CEAS itself brings about systemic human rights violations. Identifying and responding to the “systemic” in asylum increasingly relates to the credibility of the EU as a Union based on the respect for fundamental rights and the rule of law.
{"title":"“Systemic Violations” in EU Asylum Law: Cover or Catalyst?","authors":"Evangelia (Lilian) Tsourdi, Cathryn Costello","doi":"10.1017/glj.2023.59","DOIUrl":"https://doi.org/10.1017/glj.2023.59","url":null,"abstract":"Abstract The concept of a systemic fundamental rights violation refers to a particular set of violations that are both widespread and embedded, so their reoccurrence may be assumed to be likely. It takes on at least two distinctive roles in EU asylum law and policy. One role is linked with the functioning of the principle of mutual trust, a principle that obliges Member States to recognise each others’ systems and decisions, presuming them to be legal, apart from exceptional cases. In this context, the principle sets the standard from when the presumption of legality is rebutted. In its conceptualisation and application, it is in tension with European human rights law, and, for a period, set up frictions between the CJEU (in NS/ME and Opinion 2/13 ) and the ECtHR (in MSS and Tarakhel ). This tale of judicial frictions is not merely of historical interest. Its legacy is, we conclude, a thin concept of systemic breach, characterised by an over-individualized approach to assessing the human rights risks. The second role for the concept of systemic violations relates to embedded violations, including at the EU’s external borders. We demonstrate the utility of this other invocation, in particular as systemic breaches often signal deeper rule of law issues both within particular national systems and embedded within the Common European Asylum System (CEAS). We illustrate that the CEAS itself brings about systemic human rights violations. Identifying and responding to the “systemic” in asylum increasingly relates to the credibility of the EU as a Union based on the respect for fundamental rights and the rule of law.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135588138","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}
Abstract In analyzing the mission of the European Court of Human Rights, it is common to distinguish between what is akin to “individual justice” and what is more akin to “constitutional justice.” The way in which the Court combines the two depends on its “judicial policy.” In this contribution, we will examine how the “systemic” nature of the violations complained of affects the “judicial policy.”
{"title":"How “Systematic” is the European Court of Human Rights’ Approach to “Systemic” Violations of the Convention?","authors":"Koen Lemmens, Sébastien Van Drooghenbroeck","doi":"10.1017/glj.2023.60","DOIUrl":"https://doi.org/10.1017/glj.2023.60","url":null,"abstract":"Abstract In analyzing the mission of the European Court of Human Rights, it is common to distinguish between what is akin to “individual justice” and what is more akin to “constitutional justice.” The way in which the Court combines the two depends on its “judicial policy.” In this contribution, we will examine how the “systemic” nature of the violations complained of affects the “judicial policy.”","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135588133","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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{"title":"Unpacking the Multifaced Nature of the Systemic and the Particular in European Law: An Introduction","authors":"Robin Gadbled, Cecilia Rizcallah","doi":"10.1017/glj.2023.64","DOIUrl":"https://doi.org/10.1017/glj.2023.64","url":null,"abstract":"An abstract is not available for this content. As you have access to this content, full HTML content is provided on this page. A PDF of this content is also available in through the ‘Save PDF’ action button.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135588134","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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{"title":"GLJ volume 24 issue 6 Cover and Front matter","authors":"","doi":"10.1017/glj.2023.66","DOIUrl":"https://doi.org/10.1017/glj.2023.66","url":null,"abstract":"An abstract is not available for this content so a preview has been provided. As you have access to this content, a full PDF is available via the ‘Save PDF’ action button.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135588813","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":"GLJ volume 24 issue 5 Cover and Front matter","authors":"","doi":"10.1017/glj.2023.56","DOIUrl":"https://doi.org/10.1017/glj.2023.56","url":null,"abstract":"","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43890857","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}
Abstract The article draws lessons for EU non-discrimination law from the protected grounds of religion and belief through a discussion of the CJEU’s headscarf judgments. The article has two ambitions. First, the judgments are used to draw broader lessons for EU non-discrimination law, in relation to the distinction between and the justification of direct and indirect discrimination, as well as the purpose of protecting against (religious) discrimination. Second, these lessons are used to analyze the headscarf judgments and the criticism directed at them. While there is widespread agreement that the CJEU erred in these judgments, there is little agreement as to what mistakes were made. Through a discussion of these judgments, the article clarifies the difference between direct and indirect discrimination and the justification of both forms of discrimination. It is argued that the headscarf cases correctly distinguished between direct and indirect discrimination, and that the problem lies in the justificatory burden for indirect discriminatory measures, which was set too low by the CJEU.
{"title":"The Protected Grounds of Religion and Belief: Lessons for EU Non-Discrimination Law","authors":"M. van den Brink","doi":"10.1017/glj.2023.54","DOIUrl":"https://doi.org/10.1017/glj.2023.54","url":null,"abstract":"Abstract The article draws lessons for EU non-discrimination law from the protected grounds of religion and belief through a discussion of the CJEU’s headscarf judgments. The article has two ambitions. First, the judgments are used to draw broader lessons for EU non-discrimination law, in relation to the distinction between and the justification of direct and indirect discrimination, as well as the purpose of protecting against (religious) discrimination. Second, these lessons are used to analyze the headscarf judgments and the criticism directed at them. While there is widespread agreement that the CJEU erred in these judgments, there is little agreement as to what mistakes were made. Through a discussion of these judgments, the article clarifies the difference between direct and indirect discrimination and the justification of both forms of discrimination. It is argued that the headscarf cases correctly distinguished between direct and indirect discrimination, and that the problem lies in the justificatory burden for indirect discriminatory measures, which was set too low by the CJEU.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49161988","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}
With the publication of the Panama Papers in 2016, law firms and attorneys came under the spotlight of international anti-money laundering efforts. It became clear that attorneys, protected by the attorney-client privilege, play a significant role in concealing the origin of illicit funds and the constructing of offshore company-schemes. The public outcry prompted legislators to hold these facilitators accountable and to prevent money-laundering activities by imposing reporting obligation on them, whenever there is the suspicion of a client being involved in illicit activities. Unsurprisingly, attorney and professional associations voiced considerable opposition to these legislative efforts claiming an erosion of the attorney client privilege and nothing less than an attack on the rule of law. This article examines the attorney-client privilege from a historical, empirical, and constitutional perspective. A brief analysis of the legal frameworks in Germany and Switzerland exemplifies how reporting obligations affect legal practice and what challenges exist for attorneys. Both countries are considered global hubs for money laundering activities. The legal concepts of holding attorneys accountable in the neighboring countries differ in some respects. In conclusion, it shows that the legal professions successfully managed to widely avoid a ‘responsibilization’.
{"title":"Reporting Obligations for Attorneys in Money Laundering Cases: Attorney-Client Privilege Under Pressure?","authors":"Robin Hofmann, Livio Lustenberger","doi":"10.1017/glj.2023.50","DOIUrl":"https://doi.org/10.1017/glj.2023.50","url":null,"abstract":"\u0000 With the publication of the Panama Papers in 2016, law firms and attorneys came under the spotlight of international anti-money laundering efforts. It became clear that attorneys, protected by the attorney-client privilege, play a significant role in concealing the origin of illicit funds and the constructing of offshore company-schemes. The public outcry prompted legislators to hold these facilitators accountable and to prevent money-laundering activities by imposing reporting obligation on them, whenever there is the suspicion of a client being involved in illicit activities. Unsurprisingly, attorney and professional associations voiced considerable opposition to these legislative efforts claiming an erosion of the attorney client privilege and nothing less than an attack on the rule of law. This article examines the attorney-client privilege from a historical, empirical, and constitutional perspective. A brief analysis of the legal frameworks in Germany and Switzerland exemplifies how reporting obligations affect legal practice and what challenges exist for attorneys. Both countries are considered global hubs for money laundering activities. The legal concepts of holding attorneys accountable in the neighboring countries differ in some respects. In conclusion, it shows that the legal professions successfully managed to widely avoid a ‘responsibilization’.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41673697","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}
Abstract In recent years, scholars of international legal history have demonstrated much newfound interest in C.H. Alexandrowicz, a Polish jurist renowned for his anti-Eurocentric revisionist account of Asian and African agency within the meta-narrative of international law. Building on efforts to link his Polish origins with his studies of the Afro-Asian world, especially on matters of imperialism and state personality, my purpose in this Article is to explore these connections through a materially grounded historical sociology of international legal thought. Centering the issue of whether sovereignty is divisible, I situate the historic Polish-Lithuanian Commonwealth—extinguished by a series of Partitions in 1772, 1793, and 1795—as a unique divided sovereignty-based polity that provided a basis for Alexandrowicz’s study of the juridical status of non-European sovereigns. This analogy united his overarching critique of nineteenth-century international legal positivism as an unjustifiable denial of both Polish and Afro-Asian sovereignty. In deciphering the materiality of Alexandrowicz’s imagination against this presumption, I build a narrative of the Polish-Lithuanian Commonwealth and the evolution of its distinct approach to sovereign divisibility. Through analysis of the interplay between internal and external factors, I account for the Commonwealth’s medieval origins, its development in opposition to the consolidating indivisible sovereignty of its absolutist neighbors, its attempts to maintain independence in the face of Partition, and the continued assertions of its variegated legacies following its destruction. This, I argue, provides a novel means of assessing Alexandrowicz’s theory, and the materiality of international law more generally.
{"title":"Unpartitionable: C.H. Alexandrowicz, Sovereign Divisibility, and the Longue Durée of the Polish-Lithuanian Commonwealth","authors":"Eric Loefflad","doi":"10.1017/glj.2023.51","DOIUrl":"https://doi.org/10.1017/glj.2023.51","url":null,"abstract":"Abstract In recent years, scholars of international legal history have demonstrated much newfound interest in C.H. Alexandrowicz, a Polish jurist renowned for his anti-Eurocentric revisionist account of Asian and African agency within the meta-narrative of international law. Building on efforts to link his Polish origins with his studies of the Afro-Asian world, especially on matters of imperialism and state personality, my purpose in this Article is to explore these connections through a materially grounded historical sociology of international legal thought. Centering the issue of whether sovereignty is divisible, I situate the historic Polish-Lithuanian Commonwealth—extinguished by a series of Partitions in 1772, 1793, and 1795—as a unique divided sovereignty-based polity that provided a basis for Alexandrowicz’s study of the juridical status of non-European sovereigns. This analogy united his overarching critique of nineteenth-century international legal positivism as an unjustifiable denial of both Polish and Afro-Asian sovereignty. In deciphering the materiality of Alexandrowicz’s imagination against this presumption, I build a narrative of the Polish-Lithuanian Commonwealth and the evolution of its distinct approach to sovereign divisibility. Through analysis of the interplay between internal and external factors, I account for the Commonwealth’s medieval origins, its development in opposition to the consolidating indivisible sovereignty of its absolutist neighbors, its attempts to maintain independence in the face of Partition, and the continued assertions of its variegated legacies following its destruction. This, I argue, provides a novel means of assessing Alexandrowicz’s theory, and the materiality of international law more generally.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47021110","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}
European States have adopted policies to push back not only against migrants fleeing across the Mediterranean Sea but also against those individuals and NGOs who act in solidarity with them. This article seeks to demonstrate how the activities of maritime NGOs in solidarity with migrants may be protected from States’ interferences within the framework of international human rights law. In a novel inquiry, we submit that both monitoring as the gathering of information and even search and rescue operations may be considered forms of the freedom of expression. Furthermore, as State measures, ranging from intimidation to criminalization, undoubtedly serve to counter migration to Europe, we argue that Article 18 ECHR may be violated if the interferences’ ulterior purpose is exposed. By showing solidarity, at times we also express ideas. Think of those who hid Jewish people during the Nazi regime, the NGOs who organized private aircrafts to save Afghans after the Taliban’s takeover, and those who today go to the Ukrainian border to collect people fleeing the war. This article is based on the authors’ conviction that human rights law must adapt to remain viable in the face of unprecedented human rights challenges and the resourceful civic actions to meet them.
{"title":"Uncharted Waters: Solidarity with Migrants at Sea and the Freedom of Expression","authors":"Charlotte Hahn, K. Istrefi","doi":"10.1017/glj.2023.52","DOIUrl":"https://doi.org/10.1017/glj.2023.52","url":null,"abstract":"\u0000 European States have adopted policies to push back not only against migrants fleeing across the Mediterranean Sea but also against those individuals and NGOs who act in solidarity with them. This article seeks to demonstrate how the activities of maritime NGOs in solidarity with migrants may be protected from States’ interferences within the framework of international human rights law. In a novel inquiry, we submit that both monitoring as the gathering of information and even search and rescue operations may be considered forms of the freedom of expression. Furthermore, as State measures, ranging from intimidation to criminalization, undoubtedly serve to counter migration to Europe, we argue that Article 18 ECHR may be violated if the interferences’ ulterior purpose is exposed. By showing solidarity, at times we also express ideas. Think of those who hid Jewish people during the Nazi regime, the NGOs who organized private aircrafts to save Afghans after the Taliban’s takeover, and those who today go to the Ukrainian border to collect people fleeing the war. This article is based on the authors’ conviction that human rights law must adapt to remain viable in the face of unprecedented human rights challenges and the resourceful civic actions to meet them.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42118065","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":"Editorial to the Special Issue “The Impact of Digitalization on International Law” – CORRIGENDUM","authors":"Dana Burchardt","doi":"10.1017/glj.2023.48","DOIUrl":"https://doi.org/10.1017/glj.2023.48","url":null,"abstract":"","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-06-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42112332","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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