Armin von Bogdandy

Bio: Armin von Bogdandy is an academic researcher from Max Planck Society. The author has contributed to research in topics: International law & Public law. The author has an hindex of 28, co-authored 234 publications receiving 2839 citations. Previous affiliations of Armin von Bogdandy include Goethe University Frankfurt.

Overcoming absolute primacy: Respect for national identity under the Lisbon Treaty

Abstract: The present article examines the function of the revised identity clause in Article 4(2) TEU. By focusing on the fundamental political and constitutional structures of Member States, Article 4(2) TEU provides a perspective to overcome the idea of absolute primacy of EU law and the underlying assumption of a hierarchical model to understand the relationship between EU law and domestic constitutional law. The revised identity clause in Article 4(2) TEU not only demands respect for national constitutional identity, a notion determined through a close interplay of domestic constitutional law and EU law, but can be understood as permitting domestic constitutional courts to invoke, under certain limited circumstances, constitutional limits to the primacy of EU law. At the same time, Article 4(2) TEU, in tandem with the principle of sincere cooperation contained in Article 4(3) TEU, embeds these constitutional limits into an institutional and procedural framework in which domestic constitutional courts and the Court of Justice interact closely as part of a composite system of constitutional adjudication

The European Union as a Human Rights Organization? Human Rights and the Core of the European Union

Abstract: It is tempting to understand the progress of European integration as a process of growing centrality of human rights in the European legal order: human rights as being ever more important for the ever closer union. The story has been told many times: although human rights did not figure in the original Treaties, they steadily gained in importance from the late 1960s on.1 This process appears to have accelerated recently. A most prominent piece of evidence is European Council’s decision at its Cologne summit that a human rights charter should be drafted for the European Union because “[P]rotection of fundamental rights is a founding principle of the Union and an indispensable prerequisite for her legitimacy.. . .There appears to be a need . . . to establish a Charter of fundamental rights in order to make their overriding importance and relevance more visible to the Union’s citizens.”2 The group entrusted with the task of developing a charter presented a “Draft Charter of Fundamental Rights of the European Union” on 21 September 2000.3 The solemn declaration of such a charter,4 whatever its provisional or its final legal status, might be part of an ongoing process that has the potential

Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities

Abstract: This paper develops a comprehensive framework for the legal analysis of global governance phenomena. Global governance is considered as an important analytical perspective which points out new trends in international relations. However, from a normative standpoint it is unsatisfactory, as it does not allow to single out those activities of international institutions which compromise individual self-determination. To this end, the paper proposes the concept of "international public authority", which allows identifying all hard and soft mechanisms that constitute unilateral exercises of power. For such unilateral, public power to be legitimate, it needs to correspond to yet to be defined standards of public law. After discussing current legal approaches like Global Administrative Law and constitutionalism, which all aim at the development of such standards, the paper proposes a comprehensive public law approach, which finds its basis in international institutional law. This approach would avoid the uncertainties surrounding the legal bases of principles of Global Administrative Law and the risk of constitutionalism to fail on its normative ambitions. The paper sets out the framework of a comprehensive research project on the exercise of international public authority by international institutions.

Pluralism, direct effect, and the ultimate say: On the relationship between international and domestic constitutional law

Abstract: The article addresses the question of whether the metaphor of the “ legal pyramid ” as the structural representation of the relationships between international and domestic law should be deconstructed on account of the internationalization of constitutional law. On a theoretical level, it argues that the pyramid is a concept, linked to Kelsenian monism, which has outlived its usefulness. But dualism should also be overtaken by a theory of legal pluralism. On a doctrinal level, the linkage of the orders by the doctrine of self-executing international norms should be reconstructed and understood as the balancing of constitutional principles. A third thesis refers to the value judgments implicit in the question, holding that it should be answered within the domestic constitutional process, according to the experience, expectations, and convictions of the various constitutional constituencies. Given the state of international law, it would be preferable to have the capacity legally to limit the effect within the domestic legal order of a norm or an act under international law if that norm or act confl icts sharply with constitutional principles

Reverse SolangeProtecting the essence of fundamental rights against EU Member States

Abstract: This article presents an innovative approach to EU fundamental rights protection against the Member States. It draws on recent studies which have shown that the fundamental rights situation in a number of Member States is an increasing cause for concern, particularly with respect to media freedom. However, while the Union intensely scrutinizes the fundamental rights situations in candidate countries, there is scant action so far in case of serious problems in the Member States. Although the latter are comprehensively committed to "respect for human rights" according to Art 2 TEU and subject to the enforcement mechanism foreseen by Art 7 TEU this has proven to be of very limited practical impact. Therefore, the article suggests opening up "respect for human rights" for individual legal actions via Union citizenship. Its starting point is the recent jurisprudential development of the "substance" of Union citizenship in Ruiz Zambrano. This substance can and should basically be defined with reference to the essence of fundamental rights enshrined in Article 2 TEU. To put this into practice the article suggests a reverse Solange-doctrine, applied by the ECJ towards the Member States: outside the scope of the EU Charter of Fundamental Rights the Member States remain autonomous in fundamental rights protection as long as it can be presumed that they ensure the essence of fundamental rights enshrined in Article 2 TEU. However, should this presumption be rebutted, the "substance" of Union citizenship - within the meaning of Ruiz Zambrano - comes into play. On this basis Union citizens can seek redress before national courts and the ECJ.

Normative Power Europe: A Contradiction in Terms?

Abstract: Twenty years ago, in the pages of the, Journal of Common Market Studies, Hedley Bull launched a searing critique of the European Community's "civilian power" in international affairs. Since that time the increasing role of the European Union (EU) in areas of security and defence policy has led to a seductiveness in adopting the notion of "military power Europe". In contrast, I will attempt to argue that by thinking beyond traditional conceptions of the EU's international role and examining the case study of its international pursuit of the abolition of the death penalty, we may best conceive of the EU as a "normative power Europe".

Taking Rights Seriously

Abstract: 1.. HARD CASES 5. Legal Rights A. Legislation . . . We might therefore do well to consider how a philosophical judge might develop, in appropriate cases, theories of what legislative purpose and legal principles require. We shall find that he would construct these theories in the same manner as a philosophical referee would construct the character of a game. I have invented, for this purpose, a lawyer of superhuman skill, learning, patience and acumen, whom I shall call Hercules. I suppose that Hercules is a judge in some representative American jurisdiction. I assume that he accepts the main uncontroversial constitutive and regulative rules of the law in his jurisdiction. He accepts, that is, that statutes have the general power to create and extinguish legal rights, and that judges have the general duty to follow earlier decisions of their court or higher courts whose rationale, as l

Normative Power Europe: A Contradiction in Terms?

Abstract: Twenty years ago, in the pages of the Journal of Common Market Studies, Hedley Bull launched a searing critique of the European Community’s ‘civilian power’ in international affairs. Since that time the increasing role of the European Union (EU) in areas of security and defence policy has led to a seductiveness in adopting the notion of ‘military power Europe’. In contrast, I will attempt to argue that by thinking beyond traditional conceptions of the EU’s international role and examining the case study of its international pursuit of the abolition of the death penalty, we may best conceive of the EU as a ‘normative power Europe’.

Measuring the World

Abstract: Indicators are rapidly multiplying as tools for assessing and promoting a variety of social justice and reform strategies around the world. There are indicators of rule of law, indicators of violence against women, and indicators of economic development, among many others. Indicators are widely used at the national level and are increasingly important in global governance. There are increasing demands for “evidence-based” funding for nongovernmental organizations and for the results of civil society organizations to be quantifiable and measurable. The reliance on simplified numerical representations of complex phenomena began in strategies of national governance and economic analysis and has recently migrated to the regulation of nongovernmental organizations and human rights. The turn to indicators in the field of global governance introduces a new form of knowledge production with implications for relations of power between rich and poor nations and between governments and civil society. The deployment ...

International authority and its politicization

Abstract: The article focuses on the politicization of international authority as a thus far little understood development in world politics. We first define the concept and show that there is an empirical trend towards politicization of international institutions. We then argue that the increasing authority of international institutions has led to their politicization and we relate this hypothesis to alternative explanations. The validity of the authority–politicization nexus is illustrated by the rise of international authority in parallel to politicization. We go on to distinguish different policy functions such as rule definition, monitoring, interpretation, and enforcement in order to show that especially those international institutions with a high level of authority meet with strong contestation of their competencies. We conclude the article by exploring various avenues for future politicization research.