German Law Journal最新文献_第2页

Dissecting Stakeholder Participation in UN Human Rights Treaty Body Activities with Normative and Empirical Approaches: A Comparison of NGO and NHRI Participation 以规范和经验方法剖析利益攸关方参与联合国人权条约机构活动的情况：非政府组织和国家人权机构参与情况比较

German Law Journal Pub Date : 2024-02-28 DOI: 10.1017/glj.2023.109

Hinako Takata

{"title":"Dissecting Stakeholder Participation in UN Human Rights Treaty Body Activities with Normative and Empirical Approaches: A Comparison of NGO and NHRI Participation","authors":"Hinako Takata","doi":"10.1017/glj.2023.109","DOIUrl":"https://doi.org/10.1017/glj.2023.109","url":null,"abstract":"\u0000 By addressing the question “Are the roles and values of stakeholder participation qualitatively different for non-governmental organizations (NGOs) and national human rights institutions (NHRIs), and if so, how?” this article dissects stakeholder participation in UN human rights treaty body activities. First, it normatively posits that stakeholder participation in treaty body activities carries three values, which weigh differently based on the actor and the treaty body activity concerned: facilitating “bounded” national deliberations, promoting international deliberations on human rights treaty standards, and supplementing the treaty bodies’ fact-finding capacity. It offers concrete normative guidance for treaty bodies on their engagement with NGO and NHRI participation to maximize the benefits of these values. It then empirically analyzes their current practice in light of the above-mentioned normative guidance. This article contributes, first, to the theorization of stakeholder participation in treaty body activities, which has been discussed but only in generalized or fragmented ways in previous studies. Second, it supports the effectiveness and legitimacy of treaty bodies by endorsing their practice that is consistent with the guidance and finding space for improvement. Finally, it provides a rationale for establishing and strengthening NHRIs by showing that NHRI participation has unique roles distinct from those of NGOs.","PeriodicalId":503760,"journal":{"name":"German Law Journal","volume":"22 4","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140423453","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}

引用次数: 0

The Constitutionalization of Social Rights in Italy, Germany, and Portugal: Legislative Discretion, Minimal Guarantees, and Distributive Integration 意大利、德国和葡萄牙的社会权利宪法化：立法裁量权、最低保障和分配一体化

German Law Journal Pub Date : 2024-02-27 DOI: 10.1017/glj.2023.110

F. Lucherini

{"title":"The Constitutionalization of Social Rights in Italy, Germany, and Portugal: Legislative Discretion, Minimal Guarantees, and Distributive Integration","authors":"F. Lucherini","doi":"10.1017/glj.2023.110","DOIUrl":"https://doi.org/10.1017/glj.2023.110","url":null,"abstract":"\u0000 In an international social rights debate disproportionately focused on English-speaking countries, redundant emphasis has been placed on justiciability. While constitutionalization does challenge stable relations between powers, especially in the post-colonial and developing world, solid insights for a workable interpretative method can be derived from continental Europe, where the difficulties typically associated with justiciability have long been settled. The constitutions of Italy, Germany, and Portugal take socioeconomic democracy seriously, tempering socialist claims and refuting libertarian stances, and have managed to spur a legitimate judicial increment of substantive equality. Through a threefold comparison, this paper describes the peculiarities of these fundamental texts across the spectrum of possible constitutional design choices, and draws from comparative constitutional caselaw to highlight a cross-national convergence on a set of interpretative standards. These blend together a strong safeguard of legislative discretion with justiciable minimal guarantees, and a value-assertive orientation of balancing coextensive with the integrationist function of constitutionalized social and economic rights.","PeriodicalId":503760,"journal":{"name":"German Law Journal","volume":"8 S1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140425121","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}

引用次数: 0

An Empirical Analysis of Credibility Assessment in German Asylum Cases – CORRIGENDUM 德国庇护案件可信度评估的实证分析 - CORRIGENDUM

German Law Journal Pub Date : 2024-02-20 DOI: 10.1017/glj.2024.7

Björnstjern Baade, Leah Gölz

引用次数: 0

Crime and Sanctions: Beyond Sanctions as a Foreign Policy Tool 犯罪与制裁：超越制裁这一外交政策工具

German Law Journal Pub Date : 2024-02-20 DOI: 10.1017/glj.2023.103

Anton Moiseienko

{"title":"Crime and Sanctions: Beyond Sanctions as a Foreign Policy Tool","authors":"Anton Moiseienko","doi":"10.1017/glj.2023.103","DOIUrl":"https://doi.org/10.1017/glj.2023.103","url":null,"abstract":"\u0000 Targeted sanctions, namely asset freezes and travel bans, are no longer the province of foreign policy alone. Governments increasingly use them in response to crime, such as corruption, human rights abuse, cybercrime, drug trafficking, and transnational organized crime. Such sanctions are imposed based on permissive evidential standards, such as “credible evidence” or “reasonable grounds to suspect.” Their advent has added a new layer to a multi-tier system of state responses to crime. First, there is the traditional approach of criminal prosecution and conviction based on the criminal standard of proof. Second, one rung below is non-conviction-based asset forfeiture, a notionally civil confiscation of supposed proceeds of crime that eschews the need for compliance with a suite of criminal trial safeguards. The third level of this hierarchy includes crime-based targeted sanctions, which vest the state with great latitude in dealing with suspected criminals. Based on a wide-ranging analysis of international practice, this Article contends that not only are crime-based sanctions de facto a criminal justice tool, they are a coherent set of principles required to determine their relationship with other responses to criminal behavior.","PeriodicalId":503760,"journal":{"name":"German Law Journal","volume":"146 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140448442","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}

引用次数: 0

Competing Visions and Constitutional Limits of Schengen Reform: Securitization, Gradual Supranationalization and the Undoing of Schengen as an Identity-Creating Project 申根改革的竞争愿景与宪法限制：安全化、逐步超国家化和申根作为身份创造项目的失败

German Law Journal Pub Date : 2024-02-20 DOI: 10.1017/glj.2023.99

Jonas Bornemann

{"title":"Competing Visions and Constitutional Limits of Schengen Reform: Securitization, Gradual Supranationalization and the Undoing of Schengen as an Identity-Creating Project","authors":"Jonas Bornemann","doi":"10.1017/glj.2023.99","DOIUrl":"https://doi.org/10.1017/glj.2023.99","url":null,"abstract":"\u0000 Schengen integration has been home to different visions from the outset. In this vein, it owes much of its success to the fact that it has been both practical and symbolic in nature. However, this equilibrium of different visions has been upset following a series of crises. By prioritizing security considerations over alternative visions of Schengen, some Member States have reintroduced internal border controls on a quasi-permanent basis. Current reform proposals seek to address this situation but may be unable to revive the co-existence of the different visions underpinning the earlier phases of Schengen integration. Rather, as this investigation suggests, the reform that is currently being discussed would reaffirm the nature of Schengen integration as a pan-European security project. While this goes hand-in-hand with elements of supranational governance and coordination, it may impair the role of Schengen as an identity-creating project. This investigation analyzes the elements of the reforms discussed, presents them in the light of different visions of Schengen, and draws attention to possible constitutional limits of its reform.","PeriodicalId":503760,"journal":{"name":"German Law Journal","volume":"524 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140446785","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}

引用次数: 0

Acquitted on the Benefit of Doubt … but not Proven Innocent! The Judgment of the German Federal Constitutional Court on the Next Generation EU Program 疑罪从无......但不能证明无罪！德国联邦宪法法院对下一代欧盟计划的判决

German Law Journal Pub Date : 2024-02-19 DOI: 10.1017/glj.2023.111

G. Anagnostaras

{"title":"Acquitted on the Benefit of Doubt … but not Proven Innocent! The Judgment of the German Federal Constitutional Court on the Next Generation EU Program","authors":"G. Anagnostaras","doi":"10.1017/glj.2023.111","DOIUrl":"https://doi.org/10.1017/glj.2023.111","url":null,"abstract":"\u0000 Until recently, the recognition to the European Union of the capacity to borrow from capital markets for spending purposes was considered almost inconceivable without a treaty amendment. When borrowing for spending was authorized under the Next Generation EU program to support the recovery of member states from the unprecedented consequences of the coronavirus, it was immediately faced with the suspicion that the pandemic was being used as a pretext to promote the creation of a fiscal and transfer union by the back door in violation of the principle of conferral. In its NGEU judgment, the German Federal Constitutional Court concluded that the authorization to borrow under the program could not be considered ultra vires. However, the ambiguous and controversial reasoning of the Constitutional Court gives rise to uncertainty as to whether the funding and financing model introduced by the recovery program could be used again in the future, beyond the exceptional circumstances of the pandemic. At the same time, it appears that, in this case, the Constitutional Court applied a considerably more restrained version of its ultra vires review compared to its recent case law on the asset purchase programs of the European Central Bank.","PeriodicalId":503760,"journal":{"name":"German Law Journal","volume":"13 24","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140450914","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}

引用次数: 0

The Dynamics of Proportionality: Constitutional Courts and the Review of COVID-19 Regulations. 相称性的动力：宪法法院与 COVID-19 条例的审查》。

German Law Journal Pub Date : 2024-02-15 DOI: 10.1017/glj.2023.96

Ladislav Vyhnánek, Anna Blechová, Michael Bátrla, Jakub Míšek, Tereza Novotná, Amnon Reichman, Jakub Harasta

{"title":"The Dynamics of Proportionality: Constitutional Courts and the Review of COVID-19 Regulations.","authors":"Ladislav Vyhnánek, Anna Blechová, Michael Bátrla, Jakub Míšek, Tereza Novotná, Amnon Reichman, Jakub Harasta","doi":"10.1017/glj.2023.96","DOIUrl":"https://doi.org/10.1017/glj.2023.96","url":null,"abstract":"\u0000 The COVID-19 pandemic has made it clear that even when using trusted legal tools, courts may run into challenging problems. Governments reacted to an unprecedented (at least in the context of post-WW2 era of fundamental rights) global crisis by adopting measures that drastically limited fundamental rights in order to protect the lives and health of many. Courts, of course, were entrusted with protecting fundamental rights against governmental overreach. The question was, how strict should the courts be when reviewing governmental acts. On the one hand, they could have relied on substantive proportionality assessment. This option, however was virtually ignored and most courts have opted for a deferential approach. This article analyzes both of these approaches, their strengths and weaknesses, but ultimately it argues that a third option - semiprocedural review - is the best way out of this judicial conundrum. Relying on comparative as well as theoretical arguments, it argues that semiprocedural review is the best way to deal with challenging empirical question - even under conditions of epistemological uncertainty.","PeriodicalId":503760,"journal":{"name":"German Law Journal","volume":"3 8","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139774631","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}

引用次数: 0

The Dynamics of Proportionality: Constitutional Courts and the Review of COVID-19 Regulations. 相称性的动力：宪法法院与 COVID-19 条例的审查》。

German Law Journal Pub Date : 2024-02-15 DOI: 10.1017/glj.2023.96

Ladislav Vyhnánek, Anna Blechová, Michael Bátrla, Jakub Míšek, Tereza Novotná, Amnon Reichman, Jakub Harasta

{"title":"The Dynamics of Proportionality: Constitutional Courts and the Review of COVID-19 Regulations.","authors":"Ladislav Vyhnánek, Anna Blechová, Michael Bátrla, Jakub Míšek, Tereza Novotná, Amnon Reichman, Jakub Harasta","doi":"10.1017/glj.2023.96","DOIUrl":"https://doi.org/10.1017/glj.2023.96","url":null,"abstract":"\u0000 The COVID-19 pandemic has made it clear that even when using trusted legal tools, courts may run into challenging problems. Governments reacted to an unprecedented (at least in the context of post-WW2 era of fundamental rights) global crisis by adopting measures that drastically limited fundamental rights in order to protect the lives and health of many. Courts, of course, were entrusted with protecting fundamental rights against governmental overreach. The question was, how strict should the courts be when reviewing governmental acts. On the one hand, they could have relied on substantive proportionality assessment. This option, however was virtually ignored and most courts have opted for a deferential approach. This article analyzes both of these approaches, their strengths and weaknesses, but ultimately it argues that a third option - semiprocedural review - is the best way out of this judicial conundrum. Relying on comparative as well as theoretical arguments, it argues that semiprocedural review is the best way to deal with challenging empirical question - even under conditions of epistemological uncertainty.","PeriodicalId":503760,"journal":{"name":"German Law Journal","volume":"388 5","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139834392","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}

引用次数: 0

Addressing Algorithmic Errors in Data-Driven Border Control Procedures 解决数据驱动的边境管制程序中的算法错误

German Law Journal Pub Date : 2024-02-13 DOI: 10.1017/glj.2023.102

Mirko Forti

引用次数: 0

Addressing Algorithmic Errors in Data-Driven Border Control Procedures 解决数据驱动的边境管制程序中的算法错误

German Law Journal Pub Date : 2024-02-13 DOI: 10.1017/glj.2023.102

Mirko Forti

引用次数: 0