Showing papers in "German Law Journal in 2007"
TL;DR: The notion of margin of appreciation is based on the notion that each society is entitled to certain latitude in balancing individual rights and national interests, as well as in resolving conflicts that emerge as a result of diverse moral convictions as discussed by the authors.
Abstract: “Margin of appreciation” refers to the power of a Contracting State in assessing the factual circumstances, and in applying the provisions envisaged in international human rights instruments. Margin of appreciation is based on the notion that each society is entitled to certain latitude in balancing individual rights and national interests, as well as in resolving conflicts that emerge as a result of diverse moral convictions. In this regard, the doctrine is analogous to the concept of judicial discretion, where a judge, in line with certain constraints prescribed by legislation, precedent or custom, could decide a case within a range of possible solutions. The role of discretion is indispensable not only for bridging the gap between the law and changing realities of dynamic social organisms, but also for answering the particular questions of a given case in the absence of overall enacted or case law. In other words, judges are entitled to exercise discretion to make fair decisions in a specific case, without being locked into a formula that might not be applicable to every scenario.
43 citations
TL;DR: In this article, a set of questions about the nature, evolution, and political legitimacy of legal systems are raised. But they are not unknown; indeed, they lurk in the shadows of scholarly discourse on the three systems I will examine.
Abstract: This essay is a true working paper, a work-in-progress that raises a set of questions that I am not yet sure how to answer. The questions are not unknown; indeed, they lurk in the shadows of scholarly discourse on the three systems I will examine. They are, however, often ignored in research and commentary on the constitutional law, and they have never been the focus of comparative inquiry. I nonetheless will argue that the answers one gives to them will bear directly on how we should understand the nature, evolution, and political (i.e., normative) legitimacy of legal systems.
38 citations
TL;DR: In this paper, the authors review the problems that arise from self-regulation inherent in the practical implementation of CSR initiatives and question whether self regulation as exemplified in the "soft law" approach to CSR and transparency is really the answer to the problem of using corporate social responsibility and transparency initiatives, to ensure that Mineral Resource Development benefits all parties on the Mineral Development Triangle.
Abstract: Corporate Social Responsibility (CSR) has today become the rhetoric of every Business Enterprise, especially those engaged in Natural Resource Development. This is in recognition of its intrinsic value to the business bottom line and its ability to stave off social and reputation risks that may not only affect a project's rate of return, but also subject to questioning, its ‘social licence’ to operate. But the ‘free rider’, ‘green wash’ and ‘blue wash’ problems that result from self-regulation inherent in the practical implementation of CSR initiatives, has led to questions as to whether self regulation as exemplified in the ‘soft law’ approach to CSR and transparency, is really the answer to the problem of using CSR and Transparency initiatives, to ensure that Mineral Resource Development benefits all parties on the Mineral Development Triangle. Is government regulation a better option or should industry driven self-regulation be allowed to continue? This paper reviews the above issues using examples from a few countries to show the way forward.
24 citations
TL;DR: The wave of democratization that has engulfed African countries since the 1980s has been characterized by the establishment of or return to multi-party politics as mentioned in this paper, which has mostly happened in political systems with a long history of de facto and de jure constraints on the ability of political parties to function effectively.
Abstract: The wave of democratization that has engulfed African countries since the 1980s has been characterized by the establishment of or return to multi-party politics. This has mostly happened in political systems with a long history of de facto and de jure constraints on the ability of political parties to function effectively. While few countries today (examples include Eritrea and Swaziland) continue to deny the principle and legitimacy of a pluralistic organization of political associations and parties, many political parties in “new democracies” still face insurmountable obstacles in creating a level playing field and have to cope with legal and administrative provisions that severely restrict their free operation.
22 citations
TL;DR: In this paper, the authors reviewed the major characteristics of German federalism, some common criticisms, and efforts to reform the system in recent decades, and concluded that the failure of federalism reform was lamented by most observers, and many regretted especially the fact that the Commission had agreed on far more issues than those on which it had disagreed.
Abstract: In October 2005 the German Law Journal published my article which reviewed the major characteristics of German federalism, some common criticisms, and efforts to reform the system in recent decades. These efforts culminated in a Federalism Commission (Kommission von Bundestag und Bundesrat zur Modernisierung der bundesstaatlichen Ordnung [KOMBO]) that was formed in the fall of 2003 and met until December 2004, when the co-chairs announced that the Commission was unable to reach agreement on several issues, in particular the respective roles of the federal and Land (state) governments in higher education policy. The failure of federalism reform was lamented by most observers, and many regretted especially the fact that the Commission had agreed on far more issues than those on which it had disagreed.
21 citations
TL;DR: In this article, the United Nations Interim Administration Mission in Kosovo (UNMIK) should be subject to review within Kosovo for compliance with applicable legal standards, which would be helpful in ensuring UNMIK accountability and sending the message that the governors and the governed in Kosovo are subject to the rule of law.
Abstract: The governmental role played by the United Nations in Kosovo since 1999 raises a host of questions for international lawyers. Chief among these is whether governmental acts of the United Nations Interim Administration Mission in Kosovo (UNMIK) should be subject to review within Kosovo for compliance with applicable legal standards. In principle, such review would be helpful in ensuring UNMIK accountability and in sending the message that the governors—as well as the governed—in Kosovo are subject to the rule of law. However, for many, the prospect of actors in Kosovo second-guessing decisions taken by UNMIK is problematic, partly due to a fear that review could be used to derail the UNMIK-led peacebuilding process in the territory.
18 citations
TL;DR: The concept of equidistance is known as the principle of state neutrality, which commits the state to generally withdraw from religious issues, especially the political act of defining what can legitimately be classified as religion and religious behaviour as discussed by the authors.
Abstract: On a global level, we are witnessing a revitalisation of religion, which also includes a re-politisation of religion, particularly within contemporary Islam. Religion has become, once again, a political topos. The secularised western world is thus facing a new challenge, for which it appears to be inadequately prepared. The idea of freedom of religion, guaranteed as a fundamental right, obliges western democratic states to respect the religious activities of their citizens and to secure their free development. Therefore, the state is principally neither allowed to favour nor to discriminate against certain professions of faith. This concept of equidistance is known as the principle of state neutrality: it commits the state to generally withdraw from religious issues, especially the political act of defining what can legitimately be classified as religion and religious behaviour. The leeway given to the self-conception of religious groups by the German Federal Constitutional Court and its wide understanding of what kind of behaviour has a direct relationship to faith and therefore deserves protection by the freedom of religion, is to be understood against the context of this general principle. However, with regard to the new challenges mentioned above, the neutrality principle increasingly serves yet another purpose. The courts use it as an exit-option in order to avoid addressing problems which appear to be too complex for the law relegating religion to sociological study. In this context, state neutrality merely functions as a chiffre for indifference. But this strategy of avoidance, though understandable in the light of the complexity of religious pluralism, undermines the law's function of conflict resolution. Furthermore, it neither corresponds to the historical development nor to the functional aspects of the idea of religious freedom.
17 citations
TL;DR: In this paper, the authors examine the possible contribution the UN Peacebuilding Commission (PBC) can make towards the achievement of transitional justice in countries or regions recovering from (civil) war or other serious conflict.
Abstract: This contribution examines the possible contribution the UN Peacebuilding Commission (PBC) can make towards the achievement of transitional justice in countries or regions recovering from (civil) war or other serious conflict. It will first briefly epitomize the recent process culminating in the set-up of the PBC and then address the functions and tools of the Commission with particular focus on its transitional justice capabilities. Thereby, I will examine conceivable operative approaches the PBC might take in the first cases submitted to it, i.e., Burundi and Sierra Leone, and assess the Commission's potential and added value both in general terms but in particular with regard to transitional justice activities.
15 citations
TL;DR: In the case of the province of kosovo, the international community's response to the situation created by Milosevic's actions and nato's intervention threaten to call fundamental pillars of the post-world war ii order into question.
Abstract: The province of kosovo – 2 million people in 11,000 square kilometres of territory nestled between serbia to the north and albania and macedonia to the south – was thrust into the international limelight when serbian actions to repress kosovo albanian calls for independence made it a subject of international concern at the end of the 1990s. While kosovo is not unique in becoming well-known for suffering the repressive actions of a parent state, and while it has not even enjoyed the distinction of being the only territorial administration of its time, it appears to be unique in its (potential) impact on the doctrines of international law. On a number of levels, the international community's response to the situation created by milosevic's actions and nato's intervention threaten to call fundamental pillars of the post-world war ii order into question. It is too early to speculate conclusively on whether the nato action in kosovo sans security council approval in some measure paved the way for an emerging doctrine of “humanitarian intervention” that, in turn, opened the door to the illegal invasion of iraq. It seems not implausible to suggest that the apparent success of unauthorised military intervention in kosovo in stopping mass human rights violations emboldened politicians on both sides of the atlantic in opting for a moral path over the formally legal one. In any event, grounded as they are in that history, the final status talks on the future of kosovo represent a serious challenge to the current framing of the international order. It is these issues that this symposium wished to raise and examine.
12 citations
TL;DR: In Germany, Section 86a Strafgesetzbuch (Criminal Code [StGB]) became increasingly important. as discussed by the authors explains the aims and structure, the constitutional background and the main practical problems of applying this prescription.
Abstract: The rise of right-wing extremism in Germany since the beginning of the 1990s corresponds with an increasing number of propaganda offences, escalating from 8337 reported cases in 2004 up to 10881 in 2005. Also, the provision against the use of symbols of unconstitutional organizations, Section 86a Strafgesetzbuch (Criminal Code [StGB]), became increasingly important. The following essay will explain the aims and structure, the constitutional background and the main practical problems of applying this prescription.
11 citations
TL;DR: In this article, the question how human rights are protected against international organizations who increasingly take on executive powers cannot be thoroughly answered without confronting a fundamental debate in international law theory: the constitutionalism-fragmentation debate.
Abstract: Constitutionalism beyond the state concerns itself with the relation among various legal levels and the position of the individual in a multilevel legal system. The question how human rights are protected against international organizations who increasingly take on executive powers cannot be thoroughly answered without confronting a fundamental debate in international law theory: the constitutionalism-fragmentation debate. The European Court of First Instance as well as the European Court of Justice (ECJ) had to deal recently and are still dealing with this complex in a number of cases.
TL;DR: In this paper, Bernhard Knoll et al. defined the bas is of legitimacy of a temporary coercive order established by an international territori al administration and suggested that the notion of legitimacy exhibits a number of abnormalities, notably, an instability which m irrors the fluctuations in the structure of political institutions tenuously tied together by a "dual-key" governance framework.
Abstract: This article attempts to more succinctly define the bas is of legitimacy of a temporary coercive order established by an international territori al administration. More specifically, it ponders the following three questions: (i) on what argumen ts does an international territorial administration base its claim to the “legitimate” exe rcise of power?; (ii) towards which audience does it address these arguments?; and (iii) what are the challenges faced by the international administration in the construction of a transitory a dministrative system that should provide the foundations for a liberal future? Kosovo, in its eight h year of international tutelage, represents the major case under consideration. The article suggest s that the notion of legitimacy exhibits a number of abnormalities, notably, an instability which m irrors the fluctuations in the structure of political institutions tenuously tied together by a “dual-key” governance framework. One conclusion is that an international territorial auth ority needs to concern itself with the legitimacy * A preliminary version of this article appeared in the Ger man Law Journal at Bernhard Knoll, Legitimacy and UNAdministration of Territory , 8 GERMAN L.J. 39 (2007). † Mag. (Vienna Law School), M.A. (Johns Hopkins/School of Advanced International Studies), Ph.D. (European University Institute (EUI), Florence). The author has worked in various positions in the Organization for Sec urity and Co-operation in Europe (OSCE) Missions in Bosnia and Kosovo, most recently as (acting) Temporary Media Commissioner in Prishtina, and is currently a Special Advi ser to the Director of the OSCE Office of Democrati c Institutions and Human Rights (ODIHR) in Warsaw. He thanks Prof. P.M. Dupuy of the EUI for commenting on earlier drafts of the paper, which were part of a larger study on legitimacy undertaken in the course of a fourmonth exchange program with the University of Wisconsin Law School. All views expressed in the piece are those of the author. The author can be contacted at b ernhard.knoll@eui.eu.
TL;DR: The most recent decision of the European Court of Justice in the case of Volkswagen is of interest in more than one respect as mentioned in this paper, not only because it constitutes a continuation and further accentuation of a line of argument that the Court has been unfolding over past few years with regard to the Member State provisions in conflict with the EC's guarantee of the free movement of capital as laid down in Art. 56 EC.
Abstract: On its website “The EU Single Market – Fewer barriers, more opportunities”, the European Commission lists the judgments by the European Court of Justice [ECJ] dealing with the free movement of capital under Art 56 EC Treaty (ex 73b). The latest update of this list is the Court's Volkswagen decision of 23 October 2007 (Case C-112/2005), which the Commission had launched against the Federal Republic of Germany on 4 March 2005. This suit, brought under Art. 226 EC Treaty, had been long coming. That the Volkswagen statute, which effectively gave the Federal government and the Land (federal state) of Niedersachsen (Lower Saxony) a veto against majority acquisition while only holding a fifth of all shares, would come into the Commission's purview, could hardly surprise, given the Commission's activity with regard to such ‘golden share’ provisions under Portuguese, French, Belgian and English company laws. The most recent decision of the ECJ in the case of Volkswagen is of interest in more than one respect. Not only does it constitute a continuation and further accentuation of a line of argument that the Court has been unfolding over past few years with regard to the Member State provisions in conflict with the EC's guarantee of the free movement of capital as laid down in Art. 56 EC.
TL;DR: The universality, particularity or relativity of morality and material legal standards is as much an issue as the general relation between morality and the law as mentioned in this paper, and questions about the epistemological or ontological status of morality, its content, motivating force or cognitive accessibility come to the mind if one starts thinking about the law.
Abstract: Many questions come to the mind if one starts thinking about morality and the law - questions about the epistemological or ontological status of morality, its content, motivating force or cognitive accessibility They concern the content of norms, the enigma of justice and the demands of human solidarity The universality, particularity or relativity of morality and material legal standards is as much an issue as the general relation of morality and the law
TL;DR: The European Court of Human Rights in Strasbourg (hereinafter "the Court") rendered a judgment in the case Bączkowski and Others v Poland on 3 May 2007.
Abstract: On 3 May 2007, the European Court of Human Rights in Strasbourg (hereinafter "the Court") rendered a judgment in the case Bączkowski and Others v. Poland1 The Court stated that Poland violated Article 11 (freedom of association and assembly), Article 13 (right to an effective remedy) in conjunction with Article 11 and Article 14 (prohibition of discrimination) in conjunction with Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
TL;DR: The European Union contains more than 60 autochthonous languages in the 27 Member States, with widely differing situations and legal statuses as discussed by the authors, and it is worth examining how EU law deals with it.
Abstract: The territory of the European Union is made up of a rich and wide-ranging universe of languages. The European Union contains a wealth of languages. In its current form there are more than 60 autochthonous languages in the 27 Member States, with widely differing situations and legal statuses. The principal characteristic of the European linguistic diversity is the great heterogeneity of situations and internal legal statuses that the european languages display. Most of the languages of EU are spoken by very few people and few languages are enormously widespread. There are many languages in the EU, which, in spite of having an appreciable number of speakers, do not have official recognition. And there are languages that are co-official or have some sort of official recognition in some areas, but struggle to survive. Multilingualism is one of the defining characteristics of the EU, and it is worth examining how EU law deals with it.
TL;DR: A Magna Charta for Europe (now called "the Reform Treaty" as discussed by the authors ) is a normative structure based on the old ideas of deference to national identities, sovereignty and equality.
Abstract: On 23rd June 2007, after three years of uncertainty, European Union leaders agreed on relaunching the old idea of a Magna Charta for Europe (now called “the Reform Treaty”), a normative structure based on the old ideas of deference to national identities, sovereignty and equality. To many authors, the first time that juridical equality between states was solemnly stated was in the aftermath of the Thirty Years’ War (1618-1648), in the Westphalia Peace Treaties, representing the beginning of modern international society established in a system of states, and at the same time, “the plain affirmation of the statement of absolute independence of the different state orders.” In fact, under an Eurocentric conception of political ideas (which envisages England as an isolated island and Iberia as Maghreb, north of Africa), the modern state emerges with the Westphalia Peace Treaties. However, under a broader conception, the modern nation-state (under the form of absolute monarchy) emerged long before the Westphalia Peace Treaties, in Iberia and England. Nevertheless, it is in these documents which lies the “birth certificate” of the modern sovereignty nation-state, base of the present democratic state, and “founding moment” of the international political system. Far beyond this merely formal aspect, the importance of the Westphalia Peace Treaties is so great to the understanding of the notion of state that Roland Mousnier, in describing the 16th and 17th centuries in the General History of the Civilizations, organized by Maurice Crouzet, asserts that those treaties symbolized a real “constitution of the new Europe,” a multifarious Europe, plural and very distant from the religious unit of Christianity, from the political unit of the Holy Roman Empire, and from the economical unit of the feudal system. Constitutions are especially important because they establish the rules for the political authority, they determine who governs and how they govern: “[I]n codifying and legitimating the principle of sovereign statehood, the Westphalian constitution gave birth to the modern states-system.”
TL;DR: Sierra Leone is a poor country in the midst of a laudable campaign to bring justice and reconciliation to a people desperately in need of it as mentioned in this paper, and the Government of Sierra Leone (GoSL) sought the assistance of the United Nations (UN) in setting up the world's first hybrid tribunal, named the Special Court for Sierra Leone, to work alongside the already conceived of Truth and Reconciliation Commission (TRC).
Abstract: Sierra Leone is a poor nation in the midst of a laudable campaign to bring justice and reconciliation to a people desperately in need of it. Having suffered through the scourge of a decade long civil war, the nation employed two distinct yet related institutions to take a leading role in this campaign. Uniquely, the Government of Sierra Leone (GoSL) sought the assistance of the United Nations (UN) in setting up the world's first “hybrid tribunal”, named the Special Court for Sierra Leone (SCSL), to work alongside the already conceived of Truth and Reconciliation Commission (TRC). These two institutions were to employ different procedures and, to an extent, different objectives in the hopes of achieving peace, justice and reconciliation.
TL;DR: The notion of the Rechtsstaat can be translated with the term "rule of law" as discussed by the authors, which is a specific expression of the proportionality principle, which is also a constitutional requirement of the rule of law.
Abstract: Before delving into the details of a specific German theory of sentencing, this first section attempts to very briefly outline the general framework of the sentencing process according to German law. German law is codified law. This means that not only the individual crimes are laid down in the German Criminal Code, but also the general principles concerning sentencing are contained therein. The constitutional basis of the sentencing structure can be drawn from the notion of the Rechtsstaat, which can be translated with the term “rule of law.” This principle, which is laid down in Article 20 § 1 Grundgesetz (German Constitution – GG), encompasses the culpability-principle, under which the punishment must be proportionate to the individual guilt of the offender. Thus, section 46 § I of the Criminal Code (Strafgesetzbuch – StGB) reads: “the guilt of the perpetrator is the foundation for determining punishment.” The culpability-principle is a specific expression of the proportionality principle, which is also a constitutional requirement of the “rule of law.”
TL;DR: This paper argued that the third pillar of EU law is and remains different from the supranational sphere, despite the ECJ?s landmark ruling of Pupino, which extended communautaire reasoning to the third-pillar terrain.
Abstract: This paper argues that the third pillar, despite the ECJ?s landmark ruling of Pupino
(which extended communautaire reasoning to the third pillar terrain) is and
remains different from the supranational sphere. In so doing, the paper asks
whether a consistent approach to EU law can be derived from the orthodoxy of EC
law by focussing on the recent judgments of Advocaten voor der Wereld and
Dell?Orto
TL;DR: The fall of the Berlin Wall and the end of the Cold War were greeted by many as an important step in the unstoppable development of human civilization as discussed by the authors, and many celebrated the "end of history" and the triumph of the liberal democratic model, which was soon to become the most dominant, if not the only, form of organized human community.
Abstract: The fall of the Berlin Wall and the end of the Cold War were greeted by many as an important step in the unstoppable development of human civilization. Francis Fukuyama even announced, in his celebrated essay of the same name, the “end of history” and the triumph of the liberal democratic model, which, according to him, was soon to become the most dominant, if not the only, form of organized human community.
TL;DR: The German Bundesverfassungsgericht (BVerfG - German Federal Constitutional Court), has made its first judgment on the issue The decision is significant for international law and even more specifically for US jurists as discussed by the authors.
Abstract: Much attention has been given to a series of decisions by the US Supreme Court regarding the effects of the decisions of the International Court of Justice interpreting the Vienna Convention on Consular Relations On 19 September, 2006, the German Bundesverfassungsgericht (BVerfG - German Federal Constitutional Court), has made its first judgment on the issue The decision is significant for international law and even more specifically for US jurists: Its outcome differs significantly from the US Supreme Court decisions
TL;DR: The European Union legal order is a complex entity that shares some features with complex systems in natural sciences: non-reducibility, unpredictability, non-reversibility and non-determinability as mentioned in this paper.
Abstract: In this work I will try to analyse the latest trends of the European integration process in light of the notion of complexity, conceived as a bilaterally active relationship between diversities. This notion of complexity comes from a comparison among the different meanings of this word as used in several disciplines (law, physics, mathematics, psychology, philosophy) and recovers the etymological sense of this concept (complexity from Latin complexus= interlaced). The effort to find a common linguistic core could cause ambiguity but I would like to take the risk because only a multidisciplinary approach can “catch” the hidden dimension of the European process I argue that the European Union legal order is a “complex” entity that shares some features with complex systems in natural sciences: non-reducibility, unpredictability, non-reversibility and non-determinability.
TL;DR: For a long time an outstanding preoccupation with constitutional affairs has been one of the most remarkable characteristics of the study of administrative law in Germany as discussed by the authors, and the solutions for most of the key questions were believed to come from concepts of constitutional doctrine.
Abstract: For a long time an outstanding preoccupation with constitutional affairs has been one of the most remarkable characteristics of the study of administrative law in Germany. The pioneering works of Dietrich Jesch1 and Hans-Heinrich Rupp2 in the 1960’s set up the long-term academic programme for public law in the Federal Republic.3 The solutions for most of the key questions were believed to come from concepts of constitutional doctrine. Administrative law was being “constitutionalised”, as it has been called.4 This early development in the second decade of the Bonn Republic was enforced not only by the reduction of administrative discretion in favour of democratic legislation, but an ever more sophisticated theory and doctrine of basic rights turned out to be even more important as it provided the basic structures of administrative law.
TL;DR: In the last year John B. Bellinger, III, Chief Legal Adviser to the United States Department of State, has been engaging in a dialogue with politicians and legal scholars in European countries as mentioned in this paper.
Abstract: In the last year John B. Bellinger, III, Chief Legal Adviser to the United States Department of State, has been engaging in a dialogue with politicians and legal scholars in European countries. These speeches and public appearances, like the remarks delivered at the London School of Economics in 2006 and republished in this issue of the German Law Journal, were meant to address the misimpressions, as Mr. Bellinger sees it, that have become prevalent in Europe over the last few years with respect to the US positions on questions of the legal basis and legal limits of the “war on terror” and the treatment of detained terrorists.
TL;DR: The role of the common European institutions was from the outset more limited not just when it comes to legislation, but also when it came to consultation and preparation of legislation as mentioned in this paper, which was particularly true in relation to the Police and Judicial Cooperation in Criminal Matters (PJCC).
Abstract: The constitutional structure of the EU comprises two different components, one supranational (the European Community - EC) and one intergovernmental (the European Union). The EC is referred to as the first pillar, while the European Union in turn consists of two parts referred to as the second and third pillars respectively: the Common Foreign and Security Policy is the second, and the Police & Judicial Cooperation in Criminal Matters (the so called “area of Freedom, Security and Justice” - PJCC). The role of the common European institutions was from the outset more limited not just when it - which is logical - comes to legislation, but also when it comes to consultation and preparation of legislation. However, the ECJ retained jurisdiction to interpret the meaning of so called framework decisions in order to create a basis for uniform implementation in national law of such decisions. This was particularly true in relation to the Police and Judicial Cooperation in Criminal Matters. Whereas the European Court of Justice (ECJ) was granted jurisdiction in PJCC, the other community institutions, notably the European Commission, were given roles to supervise the implementation of framework decisions - but their role in enforcing uniformity was limited compared to the role of the community institutions in EC-law.
TL;DR: In this paper, an analysis of important European dynamics, particularly at this moment when it seems to be necessary to restart the process of a unified European identity, which was, in a way, compromised after the failure of the EU Constitution and the difficulty of giving effectiveness to democracy: the EC professes democracy without being democratic.
Abstract: This contribution will contain an analysis of important European dynamics, particularly at this moment when it seems to be necessary to restart the process of a unified European identity, which was, in a way, compromised after the failure of the EU Constitution and the difficulty of giving effectiveness to democracy: the EC professes democracy without being democratic. Thus the fragility of its political institutions, inherently perilous, necessarily reflects on the legitimacy of its legal order, while the constitutional balance intrinsic to the separation of powers ideal is dangerously absent. In other words, while in every Member State, the administrative law system forms part of a working system, this is not the case in the Community.
TL;DR: In this paper, the authors discuss the legal framework for the use of force and detention of combatants in an armed conflict with non-state actors, and note that actions against terrorist groups outside a state's country are not necessarily simply transnational police actions.
Abstract: I wanted to begin by thanking Dr. Voneky for her thoughtful contribution to this rapidly developing area of international law. One of the purposes of the ongoing dialogue with my European counterparts on the legal framework for the use of force and detention of combatants in an armed conflict with non-state actors is to spur dialogue to arrive at a common approach on these issues. I agree with many things in Dr. Voneky's article. I am pleased that, unlike many critics of the United States, she recognizes that it is possible to use force in self defense from armed attacks not directly linked to the actions of any state, and that the law of armed conflict would govern that use of force. I also appreciate that she notes that actions against terrorist groups outside a state's country are not necessarily simply transnational police actions. I wanted to take this brief opportunity to note three areas where there may be some misunderstandings regarding the views of the United States, and then discuss my thoughts on the way forward.
TL;DR: The German Real Estate Investment Trust (G-REIT) is in the centre of interest in Germany these days and is expected to be introduced in Germany in the beginning of 2007 as mentioned in this paper.
Abstract: The German Real Estate Investment Trust – or, G-REIT – is in the centre of interest in Germany these days and expected to be introduced in Germany in the beginning of 2007. After a preparation phase initiated in 2003 by a lobbying group (“IFD”) under the former German government, the new government has most recently drafted a bill with respect to the introduction of G-REITs (“bill”). This bill remains to be subject to parliamentary discussion and is likely to be partially modified before its final adoption: in addition to its passage in the Bundestag (Federal Parliament), it requires the approval of the Bundesrat (German Federal Council). Following its first reading it will be committed to the Financial Committee, which will conduct hearings. However, the legislator intends to pass the bill in the first quarter of 2007 to take retroactive effect as of 1 January 2007. This essay intends to outline fundamental corporate, capital market, and tax related G-REIT parameters provided for by the G-REIT Act in its present form.
TL;DR: In this article, the European Court of Justice delivered its judgment in the case Lechouritou and others v. the State of the Federal Republic of Germany, which concerned the question whether compensation for acts perpetrated by armed forces in the course of warfare can be asserted on the basis of the jurisdictional rules provided for by the Brussels Convention.
Abstract: On 15 February 2007, the European Court of Justice delivered its judgment in the case Lechouritou and others v. the State of the Federal Republic of Germany. The case concerned the question whether compensation for acts perpetrated by armed forces in the course of warfare can be asserted on the basis of the jurisdictional rules provided for by the Brussels Convention. The Court held that such an action did not fall within the scope of the Convention since it could, due to its origin in sovereign acts, not be regarded as a civil matter in terms of Art. 1 Brussels Convention. Thus, jurisdiction for claims directed at the compensation for damages resulting from the exercise of public power cannot be based on the Brussels Convention. The analysis of the Court's ruling will proceed as follows: First, the history of the case as well as the essence of the judgment will be presented (infra B) before giving a review on the Court's previous case law on the concept of “civil matters” (infra C). This outline will be followed by an analysis and a classification of the ruling in the Court's jurisprudence (infra D), before eventually the results will be summarized (infra E).