Utrecht Law Review最新文献

{"title":"The ‘Crises’ of Lesbos","authors":"D. Siegel","doi":"10.36633/ulr.745","DOIUrl":"https://doi.org/10.36633/ulr.745","url":null,"abstract":"Since 2015 hundreds of thousands of migrants have arrived on the Greek island of Lesbos, many fleeing war and poverty, others hoping to find work in Europe and give their children a better future. The arrival of migrants on Lesbos was accompanied by an influx of ‘humanitarian pilgrims’: hordes of journalists, celebrities, academic researchers and volunteers for diverse NGOs. Because the migrants arrived in such large numbers in 2015, they became part of the daily reality of both the local residents and officials at different levels of authority, from local municipalities to EU representatives. The migrants’ arrival on the island was presented in the media both as a historic event and an urgent public problem. The term ‘refugee crisis’ was born. Although its importance and urgency was widely recognized by policymakers, the inability of European and local institutions to manage the influx of migrants in this time of crisis soon became obvious. This ‘unmanageable’ situation, which demanded quick and creative solutions, involved responding to the suffering of the migrants who needed ‘to be managed’, and appealing to the local people’s solidarity and hospitality. The announcement that hundreds of thousands of refugees were arriving on the shores of Greece came at a time when the country was facing severe political and economic problems. The question is when is something ‘announced’ as a crisis and by whom, and which parties define and create a specific public problem and also suggest solutions and remedies. Based on an empirical case study in Greece, this contribution reflects on the concept of ‘Crisis’ from an interdisciplinary perspective, including a historical, philosophical and sociological understanding of its use in the refugee context.","PeriodicalId":44535,"journal":{"name":"Utrecht Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69668923","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":"Addressing a Crisis through Law: EU Emergency Legislation and its Limits in the Field of Asylum","authors":"S. Nicolosi","doi":"10.36633/ulr.776","DOIUrl":"https://doi.org/10.36633/ulr.776","url":null,"abstract":"","PeriodicalId":44535,"journal":{"name":"Utrecht Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69669779","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":"The Administrative Precautionary Approach at the Time of Covid-19: The Law of Uncertain Science and the Italian Answer to Emergency","authors":"E. Frediani","doi":"10.36633/ulr.644","DOIUrl":"https://doi.org/10.36633/ulr.644","url":null,"abstract":"The health emergency linked to Covid-19 brought to the fore the problem of the usefulness and correct application of the precautionary principle. In the paper proposed for the call, the topic will be analyzed starting from the foundations of the precautionary principle, to see consequently how it must be ‘handled’ in practice when the Administration (in the Italian fight against the pandemic, the Government, but also the Regions) is called to decide in contexts of health crisis. Particular attention will be paid, just from the beginning, to the relationship between science and Public Administration, in order to demonstrate how the precautionary approach represents a ‘rule of action’ for the public decision-maker when there is no full scientific certainty. In this perspective, the analysis will be developed starting from the definition of a general context: that one represented by the so-called ‘irreducible uncertainty.’ This premise will be the starting point to define a law of uncertain science,’ which ‘follows’ the facts and is characterized for its flexibility. The problem will then be reported to the administrative decisions, called in emergency times to be ‘adaptive’ and reviewable. The reflection on precaution ‘in action’ will have the Italian case as an observation ‘laboratory.’ In this perspective, the investigation will be conducted by looking at the ‘answer’ of the Italian legal system to the emergency related to Covid-19. This will lead to see if the precautionary approach has been taken seriously by the Italian Administration and, subsequently, what characters have taken the measures to fight against the spread of the Coronavirus outbreak. In conclusion, it will be necessary to understand whether the ‘postulates’ of precaution ‘in the books’ have been translated into an adequate precaution ‘in action.’ In other terms, the attention will be focused on two different aspects: the first related to the ‘time’ of the action;the second to the content of the measures taken to fight against the spread of the virus. This will allow us to understand if the Italian Government acted promptly (in compliance with the precautionary approach) and what was the decision-making process that brought to these measures. © 2021. The Author(s). This is an open-access article distributed under the terms of the Creative Commons Attribution 4.0 International License (CC-BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. See http://creativecommons.org/licenses/by/4.0/.","PeriodicalId":44535,"journal":{"name":"Utrecht Law Review","volume":"164 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69665969","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":"The Historical and Present-Day Role of Non-Governmental Organisations before the Inter-American Human Rights System in Documenting Serious Human Rights Violations and Protecting Human Rights and the Rule of Law Through Ensuring Accountability","authors":"Clara Burbano Herrera, Yves Haeck","doi":"10.36633/ulr.672","DOIUrl":"https://doi.org/10.36633/ulr.672","url":null,"abstract":"From a Latin-American perspective, even in a context where the rule of law has been under attack or has been very weak, the role of human rights NGOs has been and is very relevant in terms of documenting human rights violations, and seeking and bringing justice for the victims of those violations, as well as acting as a guardian angel to the Inter-American human rights system. The role of NGOs within the Inter-American human rights system has to be understood taking into account the specific political and the legal-normative context on the continent. Indeed, the role played by human rights NGOs in the Americas has responded/responds to the political reality of repressive regimes and present-day fragile democracies struggling to uphold human rights and rule of law standards. Furthermore, the legal-normative context, i.e. the American Convention on Human Rights and the interpretation given by the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights to its provisions, has also given and gives NGOs ample space to interact through different methods and strategies in a less active to a very active manner with the human rights monitoring bodies from 1959 on.","PeriodicalId":44535,"journal":{"name":"Utrecht Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69667176","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":"Fundamental Social Rights Protection and Covid-19 in the EU: Constraints & Possibilities","authors":"Barbara Safradin, Sybe A. de Vries, Simona de Heer","doi":"10.36633/ulr.679","DOIUrl":"https://doi.org/10.36633/ulr.679","url":null,"abstract":"The Covid-19 pandemic has had major socio-economic consequences, particularly for critical workers such as healthcare workers, seasonal workers and platform workers in their social rights enjoyment. This article analyses how EU law could protect social rights in times of Covid-19, with a specific focus on the possibilities and limits of the EU Charter in times of crisis for these certain categories of EU workers. The potential of EU legal instruments to protect vulnerable workers’ social rights is limited both by the limited legislative competences in the social policy field and the limited scope of application of the EU Charter. Furthermore, social rights enshrined in the Charter are often formulated as principles, which means they cannot be invoked directly in court, but need to be elaborated in legislation. Nevertheless, the EU could further strengthen the potential of social rights in the EU legal order through harmonisation of social standards in two ways. First, by harmonisation of social rights using the legal bases in the Treaty. Secondly, by implementing the European Pillar of Social Rights effectively and by improving application of the EU Charter at national level, both by clarifying and broadening horizontal direct effect as by increasing application of the EU Charter by national policymakers and the judiciary and raising awareness. © 2021","PeriodicalId":44535,"journal":{"name":"Utrecht Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69668011","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":"The Role of Civil Society in Monitoring the Executive in the Case-Law of the European Court of Human Rights: Recasting the Rule of Law","authors":"Aikaterini Tsampi","doi":"10.36633/ulr.671","DOIUrl":"https://doi.org/10.36633/ulr.671","url":null,"abstract":"This article explores the role of civil society in monitoring the executive as perceived by the European Court of Human Rights. Although this role is traditionally associated with the judiciary and the legislature, in light of the institutional mutations in modern States, the ECtHR case-law envisages a multitude of forms through which civil society can monitor the government and thus uphold the ‘rule of law from below.’ In addressing this recasting of the rule of law, the article discusses in particular the role of good and bad faith on the part of both the State and civil society. The ECtHR case-law on the mala fides restrictions of rights under Article 18 ECHR highlights the idea that the monitoring of the executive by civil society is even more crucial in States where the rule of law is suffering from a systemic point of view and thus civil society is the only entity within the State that can genuinely monitor the executive. Civil society, on its part, should exercise these monitoring functions in good faith.","PeriodicalId":44535,"journal":{"name":"Utrecht Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69666810","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":"Crying Wolf Too Many Times: The Impact of the Emergency Narrative on Transparency in FRONTEX Joint Operations","authors":"M. Gkliati, Jane Kilpatrick","doi":"10.36633/ulr.770","DOIUrl":"https://doi.org/10.36633/ulr.770","url":null,"abstract":"Crisis-driven EU policy in recent years fits within a securitisation narrative, in which the claim of public security threat outweighs fundamental rights and their accountability safeguards. Under this policy development, Frontex, the EU Border and Coast Guard Agency, has experienced an impressive expansion in its powers and competences, without the equivalent enhancement of accountability safeguards. This article focuses in particular on the issue of transparency as a fundamental right and an element of social and political accountability. Specifically, it examines how lack of transparency in complex multi-actor structures, such as Frontex joint operations, can result in gaps in accountability and impact the enforcement of basic fundamental rights of EU citizens and migrants. Using a conceptual perspective of accountability and securitisation, and highlighting specific gaps in transparency in the context of Frontex joint operations, this article aims to show how the lack of transparency has been determined by the situation of emergency and has continued to remain unaddressed due to a constant state of institutional emergency, feeding back into the perpetuation of the securitisation narrative.","PeriodicalId":44535,"journal":{"name":"Utrecht Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69668526","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":"Competition Law and the COVID-19 Pandemic – Towards More Room for Public Interest Objectives?","authors":"Małgorzata Kozak","doi":"10.36633/ulr.772","DOIUrl":"https://doi.org/10.36633/ulr.772","url":null,"abstract":"The article aims at analysing activities of the European Commission and the national competition authorities of the Member States of the European Union in response to the Covid-19 outbreak. This analysis is carried out in the light of the objectives of EU competition law. The specific research question of this article is whether the competition law framework is sufficiently resilient to the current COVID-19 crisis and allows for the inclusion of public or non-economic interests, particularly with regard to the application of Article 101 of the Treaty of the Functioning of the European Union. With a view to answering this question, the temporary framework that has been adopted because of the pandemic will be assessed in the light of the framework for the application of Article 101 TFEU. Then the actions of competition authorities undertaken EU-wide will be analysed against the background of the current debate on the goals of EU competition law.","PeriodicalId":44535,"journal":{"name":"Utrecht Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69669716","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":"Models of Solidarity in the EMU. The Impact of COVID-19 After Weiss","authors":"Ton VAN DEN BRINK, Matteo Gargantini","doi":"10.36633/ulr.663","DOIUrl":"https://doi.org/10.36633/ulr.663","url":null,"abstract":"Right in the middle of the Covid-19 pandemic, the German federal constitutional court (Bundesverfassungsgericht – FCC) issued a ruling that sent massive shockwaves through the continent. Not only did the Court question the legality of the European Central Bank’s bond buying program PSPP (Public Sector Purchase Program), but it also rejected the earlier decision by the CJEU in which this latter had found that program to respect EU law. The ruling is as such not directly concerned with Covid-19 measures, but it may have nonetheless important consequences thereon. In this contribution we will explore what those consequences may be. Apart from the direct effects on the ECB’s pandemic emergency purchase programme (PEPP), we zoom in on the ruling’s indirect consequences on the broader question of how to arrange solidarity in EMU. With regard to the latter, we contend that Weiss and the Covid-19 crises combined will test the basic models of solidarity the EMU relies upon: the models of individual fiscal responsibility, ECB based solidarity and the model of fiscal union. These models are assessed from economic, constitutional and democratic perspectives. © 2021. The Author(s). This is an open-access article distributed under the terms of the Creative Commons Attribution 4.0 International License (CC-BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. See http://creativecommons.org/licenses/by/4.0/.","PeriodicalId":44535,"journal":{"name":"Utrecht Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69666454","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":"Of Interactionality and Legal Universes: A Bottom-Up Approach to the Rule of Law in Armed Group Territory","authors":"Katharine Fortin","doi":"10.36633/ulr.669","DOIUrl":"https://doi.org/10.36633/ulr.669","url":null,"abstract":"Reviewing literature on rule of law, this article puts forward a ‘bottom-up’ approach of the rule of law that encourages an analysis of three aspects (i) the ability of the legal framework to confer the capacity of self-determination upon individuals (ii) the extent to which the legal framework is reciprocal/ interactional, in that it creates expectations between governing and governed and (iii) the contribution made by ordinary individuals in the form of participation with or contribution to communities of practice and law in everyday life. The paper then applies this framework to the law and rules in application in territory under the control of armed groups, considering individuals’ relationship with rules in these spaces and examining their different ways in which they may affect civilians’ lives.","PeriodicalId":44535,"journal":{"name":"Utrecht Law Review","volume":"26 3 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69666763","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}