Hague Journal on the Rule of Law最新文献

On 22 October 2020, the Constitutional Tribunal of Poland ruled that an abortion due to foetal impairment was unconstitutional. This article discusses the context of this controversial ruling as well as its main tenets, focusing on the interpretation of the human rights proffered by the Tribunal and on the rule of law concerns raised by the Tribunal’s decision. Against the backdrop of a brief history of the legal regulation of abortion in Poland since 1945, the article offers a critical assessment of the human rights framework used in the Polish abortion debate. Based on a close reading of the Tribunal’s ruling and the dissenting opinions, the article points out the particularities in the Tribunal’s engagement with international law and human rights jurisprudence. The article argues that the Tribunal’s decision is yet another symptom of the crisis in which the rule of law in Poland has found itself since 2015. It bears evidence to the closing of the jurisprudential horizon caused by the political change which has been taking place in Poland since 2015, consisting of the reduction of the role of international human rights debates as a reference in Polish constitutional jurisprudence. The ruling is therefore a portent of Poland’s future compliance with its international commitments in human rights matters.

During the last decade, it has become apparent that the European Union (EU) Commission is failing to halt rule of law decline in Poland and Hungary. However, has the Commission learnt from its experience in handling rule of law decline in these countries? This article suggests that not only has the EU Commission failed to learn the importance of swift action in the face of burgeoning rule of law crises but has actively ignored similar systemic issues altogether in Lithuania, a country that has historically been an exemplary Member State. This article will analyse the status of the rule of law and judicial independence in Lithuania in light of the EU Commission’s first two Rule of Law Reports published in September 2020 and July 2021. These reports were designed to act as a preventative measure to protect the rule of law in each Member State through documenting and raising awareness for rule of law developments in the Union. Lithuania has largely slipped under the radar of constitutional democracy scholars; however, in the past two years, Lithuania has endured a series of attacks on judicial independence and suffered an attempted siege of its national broadcaster. There has been an intense deadlock recently over the election of Constitutional Court justices, which has raised concerns over the executive’s persistent attempts to politicise Lithuania’s highest court. Worryingly the recent Rule of Law Reports, published by the EU Commission, fail to reflect the severity of these recent developments. The reports’ silence on these issues leads this article to conclude that the EU Commission is turning a blind eye to Lithuania’s precarious rule of law situation by failing to truthfully document significant negative developments around the rule of law. By doing so, the Commission not only exacerbates rule of law issues domestically but also undermines the fight against rule of law backsliding in the Union.

This paper analyses the mutually reinforcing relationship between upholding the Rule of Law and protecting university autonomy. Academic freedom as recognised in international human rights law can be deconstructed into two inter-connected dimensions: an individual right and institutional autonomy. The paper argues that the relationship between institutional autonomy of universities and the Rule of Law is a mutually reinforcing one, as demonstrated by the situation in Hungary, Poland and Russia. This relationship manifests in two distinct ways. Firstly, the core principles of the Rule of Law are necessary to ensure that university autonomy is not threatened by arbitrary and untrammeled exercise of State power. Secondly, this autonomy, in turn supports and strengthens the Rule of Law. Therefore, to fully appreciate the state of academic freedom in Hungary, Poland and Russia, we need to consider this bidirectional link between institutional autonomy of universities and the Rule of Law.

Recognizing the growing tensions between autocrats in the center and opposition-led local governments in Hungary, Poland and Turkey since 2018-2019 local elections, the article contributes to existing literature on illiberal democracies with a subnational portion of illiberal playbook. Tactics identified through the detailed study of the European context and brief review of Latin American experience leaves us with the following categories in the playbook: abuse of (existing) supervisory and accountability mechanisms; generating of financial vulnerability; centralization (outright and indirect) and deconcentration. Each of these categories assemble various means evolving through application and reinterpretation of traditional rules pertaining to local government, as well as crisis-induced innovations. While the Polish account carries the optimism still that antecedent robust guarantees and popular support matter even when illiberals rule the center, the playbook proved successful in Hungary and Turkey. Although certain incrementalism stayed as the most vulnerable actors were the first victims of soon-to-be normalized measures, crisis in Hungary and Poland did stretch the limits to the point that ulterior motives of undermining opposition-led local governments became publicly observable. Reflecting on this phenomenon, in the end, the article poses a theoretical question whether such pretextual instrumentalization of law can itself be judicially manageable, at least in situations when clear political opponents are targeted.

The COVID-19 pandemic caused a severe strain on health systems globally, while simultaneously presenting a social, economic, legal, political, and regulatory challenge. Where the efficacy of pandemic laws adopted by governments are a matter of life and death, the urgency with which action needs to be taken during a pandemic creates a law-making environment which incentivises rapid action without scrutiny and the use of power without restraint. Under such conditions, adherence to the foundational values of democracy and the rule of law come under increased pressure if not threat. The demands of emergency provide a convenient guise and means of justification for the use of power which only serves to consolidate power within the executive to the detriment of the separation of powers and weakening of the institutions of liberal democracy. This article provides a preliminary analysis on how the global health crisis has affected the state of democracy and the rule of law. While the specific examples are drawn from across the globe to highlight common trends and concerns, specific highlight is given to the EU and its Member States. It offers an outlook on how to prepare for future emergencies by building on the lessons of the current one.

EU enlargement has always been a political process. That said, the rule of law is an important aspect and principle of the EU enlargement policy. Implementation of EU driven reforms in candidate countries largely depends on the rule of law-based enlargement as well as on a clear EU perspective. Overpoliticisation of the enlargement process renders the EU's enlargement law futile and undermines both the transformative effect of the pre-accession process and EU's own values. The implementation of the enlargement condition for settlement of bilateral disputes, which became pronounced in the EU enlargement towards the Western Balkan countries, is having the negative effect of contributing to deterioration rather than promotion of the rule of law in both EU candidate countries and the EU's enlargement process. Lack of predictability and rule of law accordingly, makes the effective application of the principle of conditionality impossible. A genuine reconsideration of the condition for settlement of bilateral disputes within the EU enlargement framework, clear EU perspective and viable way forward are urgently needed for bringing rule of law and the EU's credibility on track.

The Rule of Law has gained global appeal and recognition, and is one of the fundamental values upon which the European Union (EU) is based, as set out in Article 2 of the Treaty on European Union. In Sect. 1, we briefly consider the main elements of the Rule of Law, in particular those definitions used in the context of the EU, the Council of Europe and the United Nations (UN). Whilst acknowledging that there are national differences among EU Member States, there is broad consensus around the core meaning of the Rule of Law. These definitional issues help frame the discussion that follows on measuring the Rule of Law. In Sect. 2, we outline some general considerations regarding the rationale for measuring the Rule of Law, followed by some specific examples of measurement tools in the context of the Council of Europe (e.g., the European Commission for the Efficiency of Justice (CEPEJ) tools on evaluating the efficiency and quality of European judicial systems, and the Venice Commission Rule of Law Checklist); the EU (e.g., the EU Justice Scoreboard, the Special Eurobarometer on the Rule of Law, and the Rule of Law Report); and the UN (e.g., the Sustainable Development Goals). In Sect. 3, we consider current Rule of Law trends in light of results from a range of datasets (including the Varieties of Democracy (V-Dem) indices, the Democracy Barometer, the Bertelsmann Stiftung's Transformation Index (BTI), and the World Justice Project's Rule of Law Index).