European Union law must be interpreted and its scope delimited, to the extent possible, consistent with the relevant rules of international law. Article 3(5) of the Treaty on European Union (TEU) provides that “the EU shall uphold and promote … the strict observance and the development of international law.” A similar legal commitment can be found in the constitutions of most EU Member States, which in some cases is about delegation of powers, whilst in others it concerns the achievement of global objectives. Article 3(5) of the TEU is also reminiscent of the judicial canon laid down by the United States Supreme Court in Charming Betsy regarding the affirmation of international norms by the Congress. The Charming Betsy doctrine of statutory construction requires national legislation (an American statute) to be construed so as not to raise conflict with international law where possible.

The one-sided focus on shareholders’ interests inherent in shareholder value-orientated corporate policies presupposes that there is a functioning system to protect the economic interests of the other stakeholder groups (creditors, employees, customers, suppliers, etc.). This is an important constraint on the maximization of the market value of equity, which as a target variable cannot be equated with a market price on the stock exchange, or with a short-term profit or yield target, and certainly not with a pending bonus payment sum. Conversely, the postulation that the primary focus must be on shareholders’ interests loses its validity as a guiding operational principle if neither individual contractual agreements nor protective statutory rules can safeguard a minimum level of protection for individual stakeholder groups. Given the incompleteness of contracts, it is not sufficient to refer to the possibility of self-protection in contracts—this loophole must be closed by regulations and by corporate governance.

Since the 1980s, influential participants in the niche over-the-counter (OTC) derivatives markets have sought to encourage contractual standardization in the industry to mitigate the potential for unforeseen legal interruptions and ensure the enforceability of OTC derivatives contracts. The International Swaps and Derivatives Association (ISDA), a trade association and standard-setter, has spearheaded this effort; resulting in the creation and sustenance of a highly successful transnational private regulatory regime (TPRER). Most notably, ISDA has generated a standardized boilerplate contract for OTC derivatives, known as the ‘ISDA Master Agreement’. However, the TPRER within which the ISDA Master Agreement operates displays some intriguing features and paradoxes. Chief amongst these paradoxes is that, while this TPRER appears at first glance to be highly legalistic and formal, indications are that rates of formal litigation between members of the regulatory regime have traditionally been low relative to the size of the market (the total notional amount of OTC derivatives contracts outstanding at the end of 2011 was estimated at US$648 trillion).

It is a generally held assumption that the EU economic free movement rights are tools in the creation of a European internal market; and that their main goal is the (negative) market integration of different national markets. Yet these freedoms do not determine how market integration is to proceed, or which kind of integrated European market will emerge. The resulting market may be more or less regulated, and the creation of the relevant regulatory rules may be allocated to a variety of sources. These options are reflected in the different proposed tests used to determine whether a national measure prima facie infringes one of the market freedoms. The proposed tests fall into two main categories—broad tests and narrow tests—and each type has its own implications for European integration. Broad tests, usually associated with obstacle tests or even with economic due process clauses, tend to be seen as having three main outcomes. One result of broad tests is centralization, implying that ultimate decisions concerning the legitimacy of national law rests with EU institutions, and particularly with the Court of Justice of the European Union (“the Court” or “CJEU”). Another outcome of broad tests is the possible harmonization of national laws through the European political process by increasing the amount of national legislation susceptible to being harmonized under Articles 114 to 118 on the Treaty on the Functioning of the European Union (“TFEU”). A third consequence of broad tests is deregulation through the elimination of national rules creating obstacles to trade. Alternatively, narrow approaches-usually associated with discrimination or typological tests-are usually coupled with regulatory pluralism via a greater degree of control of the harmonization competences of the EU, decentralization through the protection of a greater sphere of Member States' autonomy, and economic agnosticism. Views on the potential outcomes of broad and narrow tests are, in turn, related to normative debates about the ideal levels of centralization, harmonization, and regulation in the internal market.

Going after terrorists, often means “fighting the unknown”. The so-called “new threat” cannot be tracked back to known terrorists plotting against known government officials within national boundaries. The need for early investigation is clear, nothing more urgent than to forestall further terrorist actions. Today's sleeper can be tomorrow's terrorist. Hence, the argument herein is that new developments remain as consequent continuation perfecting well-known terrorist strategies and techniques. Instead of predating criminal responsibility the unknown needs to be identified. In refusing such identification current criminal law turns into a soft law reflecting actual social needs by preventing a future wrong. Current German criminal law on terrorism overextends appropriate borders in criminalizing chains of preparations. Punishment is carried out for “thinking different” by way of pre-crime, just symbolizing the wrong. The paper argues that even if criminal responsibility is predated in order to identify the unknown, it has to base on behavior, which can be understood as disorder outside the offender's interim sphere to qualify as criminal wrong. This applies to suspected terrorists and also to all other suspects of crime.

Since the 1990s it is possible to witness, in the multiplication of inter- and transnational actors, an increasing diversity in international norm-making processes as well as a growing variation in enforcing these norms, generically labeled under the term “global governance.” The actions of these private, hybrid or intergovernmental actors on the global level are increasingly seen as equivalent to the exercise of political authority formerly reserved for the state. As in the domestic context, the exercise of such authority raises questions about the procedural guarantees that anyone affected by this action should enjoy. The Organization for Economic Cooperation and Development (OECD) has evaded intensive scholarly attention from the global governance perspective thus far, although by now it is evident that it strongly contributes to this phenomenon through its various activities. The OECD Guidelines for Multinational Enterprises (Guidelines) are but one area in which the OECD is said to assume global governance functions by strongly influencing corporate behavior.

This Article starts from two premises. The first is that power—particularly regulatory power—is increasingly exercised across and between jurisdictions, in particular as a result of the intertwining of economies via trade. The well-being of those involved in the production and trade in goods and services is determined by rules made in multiple jurisdictions, not just their own. Concern about the environmental and social impact of economic activity is a particular reason for jurisdictions to try and impose norms upon each other. The second premise is that the essence of constitutionalism is constitutional values and principles rather than particular institutional forms. Such forms are contingent and instrumental, in the service of the values and principles. Many of those constitutional values and principles are concerned with the exercise of power (e.g., accountability, due process, and non-oppression).

My motivation in putting together this Human Rights Symposium for the German Law Journal (GLJ) is based on a number of events in the news this year: recent outbreaks of political protests in Libya and Egypt, on-going wars in Iraq and Afghanistan and natural disasters in Haiti and Japan, that have re-opened questions about human rights in the 21st century on a global scale.

The papers gathered under this special issue draw on presentations from the International Legal Theory Workshop under the auspices of the 4th Conference of the European Society of International Law, which was held at Cambridge University in September 2010. The essays cover some key developments in international law since the fall of the Berlin Wall. In the pages that follow, you will find an examination of the rise of the notion of ‘harmonious society’ in China as well as an insightful analysis of how this concept can influence international law; a detailed study of the regime of responsibility of international organizations that has gained momentum in the wake of the proliferation of international organization since 1989; a proposal for a fiduciary theory of international human rights, conceived as an alternative model to post-9/11, interest-balancing approaches in the field of national security law; and a reflection on the endurance of the notion of rogue states and state-criminalizing approaches to international relations, beyond the confines of the Bush doctrine. These essays are started off by two papers that address, from different angles, the current state of theorizing of international law.

This article examines the standard of decision-making that applies to voters. Are they free to follow their personal interests or are they bound to make decisions most beneficial to the common good? This question is answered not only for elections, i.e., for people choosing their representatives and for parliament itself appointing officials. Furthermore, the treatise extends to other votes as well, as it covers not only referenda as the paradigmatic means of lawmaking by the people, but also parliamentarian legislation.

“Ljudski rod ne mrzi toliko one koji čine zlo, ni samo zlo, koliko onog ko imenuje zlo.”

Writer Radmila Karlaš lives and works in Banja Luka, the political and economic center of Bosnia and Herzegovina's (BiH) entity Republika Srpska (RS). Four years ago, Radmila left journalism because, in her own words, journalism had been “reduced to serve only the centers of power in BiH.” Since then she has published two novels, Four Leaf Clover and The Silence of Mestizos. Both works deal with the direct experience of war in BiH, with the phenomenon of evil in human nature, and attempt to demystify the process that has led her homeland into the situation in which it now finds itself. The novels also analyze the war crimes committed against the non-Serb population in Radmila's hometown, Banjaluka, and in Prijedor, a town in the northern-western part of BiH.

The international context plays a role in the fight against terrorism that is not to be underestimated. On the one hand, international law poses legal obligations that lead and limit the national legislator in his actions. On the other hand, it has become clear that terrorism nowadays is an international problem that concerns not only individual states but the whole international community. The states have recognized that in order to counter the terrorist threat, an approach only on the national level cannot suffice. As a result, the fight against terrorism has shifted increasingly to the international and supranational level. For Germany the European influence is of particular importance. Therefore, the assessment of the European Commission regarding the handling of terrorist threats gains relevance:

The emergence of private actors in setting standards and sometimes contributing to monitoring and enforcement functions is a key feature of contemporary transnational regulation. Transnational private regulation fills significant gaps in governmental and intergovernmental capacity, offering the potential of public goods which both provide some coordination for global markets and address some of the externalities associated with globalization such as environmental degradation and exploitation of workers.

In 1976, MGM released Network, a satirical film about a news anchor (played by Peter Finch) so frustrated by the state of the television industry and by society in general that he couldn't stop himself from lashing out in the midst of an evening broadcast. He was “mad as hell”, and it was with this impassioned rage and his everyman sensibilities that he was determined to move the television watching nation. Nevertheless, for all his conviction, Finch's character was destined to fail. In the penultimate scene of the film, Finch is confronted by the television network's chairman of the board (played by Ned Beatty).

Since 1961, research assistants, doctoral students as well as post-doctoral researchers from universities all over Germany – and meanwhile also from Austria and Switzerland – come together once a year to debate current topics of public law. Over the last decades, the annual meeting has developed into an important forum for young public law scholars; they present their ideas, get a glimpse of the world of academia, and get to know their colleagues. From March 13th to March 16th, 2012, the 52nd Assistententagung took place in Hamburg. The meeting was organized by the three law schools located in Hamburg: the University of Hamburg, one of Germany's largest universities; the Bucerius Law School Germany's first private law school; and the Helmut-Schmidt-University, one of two German universities of the Federal Armed Forces (Bundeswehr). With collectivity as the general topic of the conference, the organizers provided a rather broad but nonetheless useful framework for the thirteen presentations given over the three days. While the presentations approached the concept of collectivity from different perspectives settled in different fields of the law, the relationship between individuals and groups as well as the significance of an overarching community interest appeared as recurring themes of the discussion.

During the last few decades scholars have discussed various different scenarios of modern terrorism. One of these scenarios –– Islamic motivated terrorism –– came to light with the attacks on the World Trade Center on 11 September 2001. Another scenario discussed involves terrorist attacks against the natural environment as part of so-called “eco-terrorism”. These attacks are either carried out using traditional weapons or the often-discussed “bioterrorism”, where biological weapons are manufactured and misused by terrorists.

With his “highly suggestive,” “thought-provoking” paper, The Juridical Coup d'État and the Problem of Authority, Stone Sweet initiated an ongoing debate. The paper was the object of immediate comments by three eminent legal scholars and of a response to them by Stone Sweet. Most recently, Corrias has developed on its basis a theory of constituent power now. The present article will mostly deal with those aspects of Stone Sweet's paper on which Corrias has relied.