Abstract The COVID-19 pandemic elicited a surge in the use of digital tools to replace “classic” manual disease tracking and contact tracing across individuals. The main technical reason is based on the disease surveillance needs imposed by the magnitude of the spread of the SARS-CoV-2 virus since 2020, particularly how these needs overwhelmed governments around the world. Such developments led to stark variations across countries in terms of legal approaches towards the use of digital tools, including self-reporting software and mobile phone apps, for both disease tracking and contact tracing. Against this backdrop, in this article I highlight some of the normative challenges posed by the digitalization of disease surveillance, underscoring its almost non-existent regulation under international law. I look back at the historical emergence of the epidemiological principles underlying this procedure, by referring to John Snow’s trailblazing work in cholera control. I emphasize how the COVID-19 pandemic prompted both technical and normative shifts related to the digitalization of these procedures. Furthermore, I refer to some of the overarching obstacles for deploying international law to tackle future tensions between the public health rationale for digitalized disease tracking and contact tracing, on the one hand, and normative concerns directly related to their legality, on the other hand. Lastly, I put forward conclusions in light of the current juncture of international health law reforms, and how they so far display limited potential to herald structural changes concerning the legality of the use of digital tools in disease surveillance.
{"title":"International Law and Digital Disease Surveillance in Pandemics: On the Margins of Regulation","authors":"Pedro A. Villarreal","doi":"10.1017/glj.2023.26","DOIUrl":"https://doi.org/10.1017/glj.2023.26","url":null,"abstract":"Abstract The COVID-19 pandemic elicited a surge in the use of digital tools to replace “classic” manual disease tracking and contact tracing across individuals. The main technical reason is based on the disease surveillance needs imposed by the magnitude of the spread of the SARS-CoV-2 virus since 2020, particularly how these needs overwhelmed governments around the world. Such developments led to stark variations across countries in terms of legal approaches towards the use of digital tools, including self-reporting software and mobile phone apps, for both disease tracking and contact tracing. Against this backdrop, in this article I highlight some of the normative challenges posed by the digitalization of disease surveillance, underscoring its almost non-existent regulation under international law. I look back at the historical emergence of the epidemiological principles underlying this procedure, by referring to John Snow’s trailblazing work in cholera control. I emphasize how the COVID-19 pandemic prompted both technical and normative shifts related to the digitalization of these procedures. Furthermore, I refer to some of the overarching obstacles for deploying international law to tackle future tensions between the public health rationale for digitalized disease tracking and contact tracing, on the one hand, and normative concerns directly related to their legality, on the other hand. Lastly, I put forward conclusions in light of the current juncture of international health law reforms, and how they so far display limited potential to herald structural changes concerning the legality of the use of digital tools in disease surveillance.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43579434","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 While digitalization has led to renewed attention to the principle of non-intervention, not the least by Western states rediscovering the protective dimension of sovereignty, it remains plagued by a certain vagueness. Attempts by academics to fill the gaps lead to starkly different results, ranging from the insertion of democratic values to the inadvertent reinforcement of protectionist tendencies. Overall, digitalization has so far had less of an effect on the principle of non-intervention than its renewed importance may have on the type of international law more generally.
{"title":"Does Digitalization Reshape the Principle of Non-Intervention?","authors":"L. Willmer","doi":"10.1017/glj.2023.27","DOIUrl":"https://doi.org/10.1017/glj.2023.27","url":null,"abstract":"Abstract While digitalization has led to renewed attention to the principle of non-intervention, not the least by Western states rediscovering the protective dimension of sovereignty, it remains plagued by a certain vagueness. Attempts by academics to fill the gaps lead to starkly different results, ranging from the insertion of democratic values to the inadvertent reinforcement of protectionist tendencies. Overall, digitalization has so far had less of an effect on the principle of non-intervention than its renewed importance may have on the type of international law more generally.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43671374","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 provides a meta-analysis of the structural impact of digitalization on international law. It synthesizes the contributions of this special issue, showing how their findings are interrelated and which cross-cutting trends we can observe. It uses an analytical framework designed to assess structural changes in international law by analyzing the impact that digitalization has on key reference points: Actors, norms, and values. From this assessment, it draws the conclusion that digitalization is changing, and will continue to change structural features of international law.
{"title":"Does Digitalization Change International Law Structurally?","authors":"Dana Burchardt","doi":"10.1017/glj.2023.31","DOIUrl":"https://doi.org/10.1017/glj.2023.31","url":null,"abstract":"Abstract The article provides a meta-analysis of the structural impact of digitalization on international law. It synthesizes the contributions of this special issue, showing how their findings are interrelated and which cross-cutting trends we can observe. It uses an analytical framework designed to assess structural changes in international law by analyzing the impact that digitalization has on key reference points: Actors, norms, and values. From this assessment, it draws the conclusion that digitalization is changing, and will continue to change structural features of international law.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42945895","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 special issue analyzes the impact of digitalization on international law — focusing on structural changes. It asks whether such changes are observable in the various fields of international law and whether we can discern cross-cutting trends and developments. The special issue combines the in-depth analysis that the contributing authors provide for specific subject matters with the bird ’ s eye perspective offered in a synthesizing article by myself. The fields of international law covered in this special issue include international human rights law and institutions, use of force, the principles of non-intervention, state responsibility, enforcement jurisdiction, international trade and investment law, international criminal law, and international health law. I thank the contributors for their insightful articles and for engaging intensively with the topic of this special issue. Many of the contributors were part of the project since Maria Varaki and I prepared our initial workshop held in January 2021 — and I am especially grateful for their com-mitment to this project and their patience during the process of publication of this special issue. I also thank in particular Inge van Hulle and Russell Miller who have enriched the special issue with their editorial support and input. The special issue is structured as follows:
特刊分析了数字化对国际法的影响——重点关注结构变化。它询问在国际法的各个领域是否可以观察到这种变化，以及我们是否能够看到贯穿各领域的趋势和发展。这期特刊结合了撰稿人对特定主题的深入分析，以及我在一篇综合文章中提供的鸟瞰视角。本特刊涵盖的国际法领域包括国际人权法和机构、武力使用、不干涉原则、国家责任、执法管辖权、国际贸易和投资法、国际刑法和国际卫生法。我感谢撰稿人发表了富有见地的文章，并深入探讨了本期特刊的主题。自从Maria Varaki和我准备了2021年1月举行的首次研讨会以来，许多撰稿人都参与了该项目，我特别感谢他们对该项目的承诺以及在本特刊出版过程中的耐心。我还要特别感谢Inge van Hulle和Russell Miller，他们的编辑支持和投入丰富了特刊内容。特刊结构如下：
{"title":"Editorial to the Special Issue “The Impact of Digitalization on International Law”","authors":"Dana Burchardt, M. Varaki","doi":"10.1017/glj.2023.32","DOIUrl":"https://doi.org/10.1017/glj.2023.32","url":null,"abstract":"The special issue analyzes the impact of digitalization on international law — focusing on structural changes. It asks whether such changes are observable in the various fields of international law and whether we can discern cross-cutting trends and developments. The special issue combines the in-depth analysis that the contributing authors provide for specific subject matters with the bird ’ s eye perspective offered in a synthesizing article by myself. The fields of international law covered in this special issue include international human rights law and institutions, use of force, the principles of non-intervention, state responsibility, enforcement jurisdiction, international trade and investment law, international criminal law, and international health law. I thank the contributors for their insightful articles and for engaging intensively with the topic of this special issue. Many of the contributors were part of the project since Maria Varaki and I prepared our initial workshop held in January 2021 — and I am especially grateful for their com-mitment to this project and their patience during the process of publication of this special issue. I also thank in particular Inge van Hulle and Russell Miller who have enriched the special issue with their editorial support and input. The special issue is structured as follows:","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48519232","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 3 Cover and Front matter","authors":"","doi":"10.1017/glj.2023.36","DOIUrl":"https://doi.org/10.1017/glj.2023.36","url":null,"abstract":"","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46093063","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 European Green Deal and the European Climate Law highlight the EU’s commitment to strive for carbon neutrality. Considering the magnitude of the global challenge, it is evident that a green transition will not succeed without the efforts of every sector, including financial institutions. Concerns have been raised that central banks may, in fact, contribute to the increase of greenhouse gas emissions and, in consequence, aggravate global warming. This all has currently resulted in a rapid expansion of the debate on the potential role of central banks, and in particular the ECB, to consider climate objectives. In the European context, however, it is often argued that environmental sustainability lies outside the ECB’s traditional core mandate to focus on price stability. This article aims to introduce the environmental integration principle, laid down in Article 11 TFEU, in the ECB’s legal framework, and provide an analysis of the possibilities for and limitations to the greening of the ECB's monetary policy based on this provision. Although Article 11 TFEU has great potential with regards to the greening of sectoral policies, in legal literature, the provision has not gained enough academic attention in terms of the financial sector.
{"title":"The Role of Article 11 TFEU in the Greening of the ECB’s Monetary Policy","authors":"Christian Calliess, Ebru Tuncel","doi":"10.1017/glj.2023.17","DOIUrl":"https://doi.org/10.1017/glj.2023.17","url":null,"abstract":"Abstract The European Green Deal and the European Climate Law highlight the EU’s commitment to strive for carbon neutrality. Considering the magnitude of the global challenge, it is evident that a green transition will not succeed without the efforts of every sector, including financial institutions. Concerns have been raised that central banks may, in fact, contribute to the increase of greenhouse gas emissions and, in consequence, aggravate global warming. This all has currently resulted in a rapid expansion of the debate on the potential role of central banks, and in particular the ECB, to consider climate objectives. In the European context, however, it is often argued that environmental sustainability lies outside the ECB’s traditional core mandate to focus on price stability. This article aims to introduce the environmental integration principle, laid down in Article 11 TFEU, in the ECB’s legal framework, and provide an analysis of the possibilities for and limitations to the greening of the ECB's monetary policy based on this provision. Although Article 11 TFEU has great potential with regards to the greening of sectoral policies, in legal literature, the provision has not gained enough academic attention in terms of the financial sector.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45540664","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":"Doctrinal Methodology in EU Administrative Law: Confronting the “Touch of Stateness” – CORRIGENDUM","authors":"Filipe Brito Bastos","doi":"10.1017/glj.2023.22","DOIUrl":"https://doi.org/10.1017/glj.2023.22","url":null,"abstract":"","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46290130","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 This article argues that the European Central Bank (ECB), supported by the Court of Justice of the European Union (CJEU), can be perceived to have functionally softened the no sovereign lender of last resort (LOLR) rule originally implied by Articles 123 and 125 of the Treaty on the Functioning of the European Union (TFEU) towards a rule-with-exceptions and, increasingly, towards a presumption: The ECB will act as sovereign LOLR to a constituent Member unless and until that Member is insolvent or unwilling to cooperate with measures designed to restore market confidence. This functional moderation of a rule, from an ex ante specification of an outcome towards the exercise of greater choice at the point of application, carries with it contentious normative questions. To motivate discussion thereof beyond a largely ahistorical, non-indexical, rules versus discretion debate, the rules of the currency union are located within the genealogy of international exchange rate regimes. The “convertibility” rule of the gold standard and the “parity” rule of the Bretton Woods system are contrasted with their Eurozone equivalent. A consequentialist standpoint is sketched out from which the interventions of the ECB, in light of their available alternatives, appear broadly consistent with welfarist cost-benefit analysis and less normatively worrisome than by reference to evaluative criteria that emphasize a narrowly rule-bound conception of the rule of law.
{"title":"The Sovereign Lender of Last Resort Role of the ECB: Rules, Choice, and Time","authors":"David Quinn","doi":"10.1017/glj.2023.21","DOIUrl":"https://doi.org/10.1017/glj.2023.21","url":null,"abstract":"Abstract This article argues that the European Central Bank (ECB), supported by the Court of Justice of the European Union (CJEU), can be perceived to have functionally softened the no sovereign lender of last resort (LOLR) rule originally implied by Articles 123 and 125 of the Treaty on the Functioning of the European Union (TFEU) towards a rule-with-exceptions and, increasingly, towards a presumption: The ECB will act as sovereign LOLR to a constituent Member unless and until that Member is insolvent or unwilling to cooperate with measures designed to restore market confidence. This functional moderation of a rule, from an ex ante specification of an outcome towards the exercise of greater choice at the point of application, carries with it contentious normative questions. To motivate discussion thereof beyond a largely ahistorical, non-indexical, rules versus discretion debate, the rules of the currency union are located within the genealogy of international exchange rate regimes. The “convertibility” rule of the gold standard and the “parity” rule of the Bretton Woods system are contrasted with their Eurozone equivalent. A consequentialist standpoint is sketched out from which the interventions of the ECB, in light of their available alternatives, appear broadly consistent with welfarist cost-benefit analysis and less normatively worrisome than by reference to evaluative criteria that emphasize a narrowly rule-bound conception of the rule of law.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45366965","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 recent years saw the rise in discourse to undo the liberal-democratic amendments introduced between 1999 and 2002 and restore the Indonesian 1945 Constitution to its original 1945 version. Some Indonesian public figures believe that these amendments are not legitimate, because they are deemed to have eliminated the basic values of the original 1945 Constitution which was built on the “integralist” concept as propounded by its main architect Soepomo. According to the integralist conception, the state should be seen as a family in which the government played a role as a wise father who can bring its people to the right choice. This article seeks to prove that these amendments are legitimate although they constitute a “dismemberment” of the original 1945 Constitution. This is because the original 1945 Constitution was formed only by a handful of elites in an institution established by the Japanese occupying power in early 1945. By contrast, the Majelis Permusyawaratan Rakyat (People’s Consultative Assembly) who was in charge of the four amendments to the 1945 Constitution had a greater democratic legitimacy compared to the drafters of the original Constitution given that they were elected through the 1999 elections. Furthermore, the original 1945 Constitution was never intended to operate beyond the Indonesian revolutionary period, which ended in 1949. It was expected that the document be significantly changed or even replaced by the People’s Consultative Assembly through the amendment process.
{"title":"Restoring Indonesia’s (Un)Constitutional Constitution: Soepomo’s Authoritarian Constitution","authors":"Abdurrachman Satrio","doi":"10.1017/glj.2023.16","DOIUrl":"https://doi.org/10.1017/glj.2023.16","url":null,"abstract":"Abstract The recent years saw the rise in discourse to undo the liberal-democratic amendments introduced between 1999 and 2002 and restore the Indonesian 1945 Constitution to its original 1945 version. Some Indonesian public figures believe that these amendments are not legitimate, because they are deemed to have eliminated the basic values of the original 1945 Constitution which was built on the “integralist” concept as propounded by its main architect Soepomo. According to the integralist conception, the state should be seen as a family in which the government played a role as a wise father who can bring its people to the right choice. This article seeks to prove that these amendments are legitimate although they constitute a “dismemberment” of the original 1945 Constitution. This is because the original 1945 Constitution was formed only by a handful of elites in an institution established by the Japanese occupying power in early 1945. By contrast, the Majelis Permusyawaratan Rakyat (People’s Consultative Assembly) who was in charge of the four amendments to the 1945 Constitution had a greater democratic legitimacy compared to the drafters of the original Constitution given that they were elected through the 1999 elections. Furthermore, the original 1945 Constitution was never intended to operate beyond the Indonesian revolutionary period, which ended in 1949. It was expected that the document be significantly changed or even replaced by the People’s Consultative Assembly through the amendment process.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46208411","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 This study analyzes empirically how 236 German court decisions assess the credibility of asylum seekers’ accounts of their persecution. In their reasoning, the courts rely on generally accepted content-based credibility criteria, including consistency, level of detail, and timeliness of the claim. But they also rely on conduct-based criteria, which have been resoundingly discredited in the relevant scientific literature. Too rarely, the courts considered confounding factors such as cultural distance or interpreter mistakes. They need to be more aware of their duty to confront applicants with negative credibility criteria. Article 4 (5) Qualification Directive played no role whatsoever in the sample analyzed in this study, which can be explained by specifics of German asylum law. The human judgment that is required in the balancing of credibility criteria and confounding factors is problematic for its subjectivity but unavoidable. Attempts at replacing this human credibility assessment with seemingly objective technical means have led to arbitrary decisions and encroached gravely on applicants’ human rights. While the credibility assessment procedure employed in German courts is far from flawless, it can produce convincing decisions. It should be further refined and provided with safeguards to arrive at decisions that are as rational and objective as possible.
{"title":"An Empirical Analysis of Credibility Assessment in German Asylum Cases","authors":"Björnstjern Baade, Leah Gölz","doi":"10.1017/glj.2023.15","DOIUrl":"https://doi.org/10.1017/glj.2023.15","url":null,"abstract":"Abstract This study analyzes empirically how 236 German court decisions assess the credibility of asylum seekers’ accounts of their persecution. In their reasoning, the courts rely on generally accepted content-based credibility criteria, including consistency, level of detail, and timeliness of the claim. But they also rely on conduct-based criteria, which have been resoundingly discredited in the relevant scientific literature. Too rarely, the courts considered confounding factors such as cultural distance or interpreter mistakes. They need to be more aware of their duty to confront applicants with negative credibility criteria. Article 4 (5) Qualification Directive played no role whatsoever in the sample analyzed in this study, which can be explained by specifics of German asylum law. The human judgment that is required in the balancing of credibility criteria and confounding factors is problematic for its subjectivity but unavoidable. Attempts at replacing this human credibility assessment with seemingly objective technical means have led to arbitrary decisions and encroached gravely on applicants’ human rights. While the credibility assessment procedure employed in German courts is far from flawless, it can produce convincing decisions. It should be further refined and provided with safeguards to arrive at decisions that are as rational and objective as possible.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47354935","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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