This paper provides a critical overview of options available to the EU to deal with the Rule of Law crisis in some of the Member States. The options it engages with were offered and discussed by a handful of the leading experts in the field and drawing on the critical EUI discussion, the first part of the paper tackles the following questions:1. Why should the EU reinforce the oversight of Member States’ Rule of Law performance?2. Are there sufficient legal bases for such oversight – should a reform of the Treaties be required?3. What kind of procedure could be designed to meet the need of such oversight?4. Which body should be entrusted with the oversight function?The second part provides a word of caution warning of the possible problems related to the EU's involvement with the constitutional core of the Member States.

Reinforcing Rule of Law Oversight in the European Union

This article explores the potential efficacy and limitations of judicial mechanisms as tools to combat democratic backsliding in European Union (EU) member states. The article argues that more can be done to maximize the effectiveness of existing judicial tools, such as infringement proceedings brought to the European Court of Justice (ECJ) by the Commission and private enforcement litigation in national courts. At the same time, we highlight risks inherent in many proposals for novel judicial tools to defend national democracy. We conclude that despite their importance, judicial safeguards alone – whether existing ones or novel proposals – will not suffice to stop democratic backsliding by a determined national government: if the Union is to rein in such attacks on its core values, heads of government and other EU leaders will have to intervene politically as well.

Can courts rescue national democracy? Judicial safeguards against democratic backsliding in the EU

Confusion about the differences between the Council of Europe (the parent body of the European Court of Human Rights) and the European Union is commonplace amongst the general public. It even affects some lawyers, jurists, social scientists and students. This book will enable the reader to distinguish clearly between those human rights norms which originate in the Council of Europe and those which derive from the EU, vital for anyone interested in human rights in Europe and in the UK as it prepares to leave the EU. The main achievements of relevant institutions include securing minimum standards across the continent as they deal with increasing expansion, complexity, multidimensionality, and interpenetration of their human rights activities. The authors also identify the central challenges, particularly for the UK in the post-Brexit era, where the components of each system need to be carefully distinguished and disentangled.

Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges

This article offers a comprehensive examination of the rationale underlying the rule of law framework adopted by the Commission in March 2014 before outlining its main features. It is argued that while the Commission’s ‘light-touch’ framework falls short of what is required to effectively address internal threats to EU values of a systemic nature, it remains preferable to the new mechanism adopted by the Council in December 2014 and which consists of holding an annual rule of law dialogue among all Member States within the Council. To make the Commission’s framework more workable and effective, which should in turn increase its ‘dissuasive potential’, a number of modest recommendations are also offered at a time where an increasing number of voices are asking the Commission to activate the first phase its new mechanism in relation to Hungary and more recently, Poland.

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Monitoring and enforcement of the rule of law in the EU: rhetoric and reality

Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and Reality

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.

Reverse SolangeProtecting the essence of fundamental rights against EU Member States

In autumn 2005 a group of Sudanese asylum seekers and refugees discontented with the unbearable conditions in the United Nations High Commissioner for Refuges (UNHCR) office in Cairo started a sit-in protest near the office. The protesters were, besides venting their anger at the suspension of Refugee Status Determination procedures for Sudanese refugees due to the ceasefire between the Sudanese government and Sudan’s People Liberation Army, also making their frustrations heard regarding UNHCR’s lengthy procedures, its failure to provide them with proper assistance, the high numbers of rejected applications, improper interviews and their general treatment by UNHCR’s personnel as well as their difficult social and health conditions which had been aggravated by the lack of proper assistance. They were demanding that this situation be remedied and calling for transparent and fair procedures. Shortly thereafter they were joined by many more protesters so that in the following three months a group of between 1,800 and 2,500 people stayed around UNHCR’s premises. However, meetings and negotiations with UNCHR eventually failed. The crisis ended in a tragedy. On December 30, 2005 the Egyptian security forces proceeded ith the forcible removal of the protesters from the venue in an action in which 28 refugees were killed, more than half of which were children and women, with several protesters missing after the events. The Cairo incident illustrates what the cited report on the events has rightly called “a tragedy of failures and false expectations” regarding international humanitarian and human rights institutions.

International Institutions and Individualized Decision-Making: An Example of UNHCR’s Refugee Status Determination

A European Response to Domestic Constitutional Crisis: Advancing the Reverse-Solange Doctrine

A. Background and Overview 1. The Emancipation of European Community and Union Law from International Law 2. Primary Law Provisions on the Relationship between European Union Law and International Law B. Relationship between European Union Law and International Law 1. International Treaties (a) Multilateral Agreements Concluded by the European Community/Union (i) A priori and a posteriori Control of Compatibility of International Agreements with Primary Law (ii) Incorporation of International Agreements in European Union Law (iii) The Effect of International Agreements in European Union Law (b) Mixed Agreements (c) Multilateral Agreements Concluded by Member States (d) Decisions of Bodies Established by International Agreements (Secondary International Law) (e) Multilateral Agreements Concluded by the European Union under Title V and VI Treaty on European Union (Nice) 2. Customary International Law and General Principles of International Law C. Special Problems 1. World Trade Organization Law 2. European Convention for the Protection of Human Rights and Fundamental Freedoms 3. United Nations Charter D. Assessment Select Bibliography Select Documents

European Community and Union Law and International Law

In the late 1980s Member States of the European Community (EC) and the EC itself began with the practice of seeking to introduce so-called "disconnection clauses", clauses according to which in their relations inter se certain of the parties to the multilateral convention would not apply the rules of the convention but specific rules agreed among themselves, into multilateral treaties to which either Member States alone were to become parties, as well as in the mixed agreements which also the EC joined. This treaty-making practice did not go unnoticed. The 2006 International Law Commission Study Group Report on Fragmentation of International Law noted the ambiguity of the clause and suggested that this practice raises doubts about the equal application of treaty norms between parties, possibly enabling the EC and its member states to proceed to a negative derogation from the provisions of the treaty. In October 2007 also the Committee of Legal Advisers on Public International Law (CAHDI) was mandated by the CoE Council of Ministers to examine and to report the consequences of the "disconnection clause" in international law and for CoE conventions. Among various means of a strategy to establish, promote and defend the organizational and substantial aquis of the EU in the multilateral sphere the technique of "disconnection clauses" has been chosen for this paper, being an example that has so far attracted the most attention, as an indicator for European Union's attitude towards international law. According to the provisional results, the impression is that EC/EU practice relating to the "disconnection clause" is not a very consistent one and that the institutions themselves do not share the same conception of its implications. Having in mind the fact that mixed agreements are becoming the prevailing treaty practice, it also seems that for this type of agreements the "disconnection clause" is completely superfluous, unless the strategy behind it is to facilitate actual evasion of treaty provisions that bind the Community or Union. Also not conceivable is the use of the clause in treaties dealing with human rights issues. Further reconsideration is due to alternative means to enable the EC/EU to retain (and/or to declare) its possibility to apply the regulatory framework of international treaties in a way pursuant to its onward level of integration and facilitating that this happens in a way transparent to other parties to respective treaties. And finally, it seems that special attention should be directed to the exclusive nature of the clause to the Council of Europe Conventions since these cases have attracted the most attention among practitioners and scholars and indeed it does not seem obvious why European Union should need to negatively depart from common European co-operative and substantial framework facilitated within the CoE.

The Use of the 'Disconnection Clause' in International Treaties: What Does it tell us about the EC/EU as an Actor in the Sphere of Public International Law?

Maja Smrkolj

Papers

Reverse SolangeProtecting the essence of fundamental rights against EU Member States

International Institutions and Individualized Decision-Making: An Example of UNHCR’s Refugee Status Determination

A European Response to Domestic Constitutional Crisis: Advancing the Reverse-Solange Doctrine

European Community and Union Law and International Law

The Use of the 'Disconnection Clause' in International Treaties: What Does it tell us about the EC/EU as an Actor in the Sphere of Public International Law?