This Article discusses the extraterritorial human rights obligations of states and proposes a new approach for conceptualizing them. While extraterritorial state obligations within the concept of state jurisdiction are indisputably recognized, a more comprehensive perspective beyond jurisdiction is generally lacking. This Article aims to fill that gap. First, it discusses the traditional notions of extraterritorial state obligations and demonstrates their weaknesses. Second, a new concept of extraterritorial state obligations borrowing elements from systems theory is then suggested. The Article argues that comprehensive and general extraterritorial state obligations mainly build upon the normative idea of human rights. Human rights have universal validity and prescribe obligations that are independent of the jurisdiction of a state. What matters is that states can violate human rights beyond their jurisdiction and can influence violations of human rights committed by other actors. Finally, this Article outlines the scope and content of extraterritorial human rights obligations of states.

Within Scandinavia, Sweden stands out for not having gone to war in over 200 years. Its neighboring states—Finland, Denmark, and Norway—have not been as fortunate. Their respective constitutions each provide insight into their different experiences. The Swedish Constitution remains silent on emergency situations that do not rise to the predefined level of “war.” The Finnish constitution differs from the Swedish in that it allows for time-limited restrictions to protect fundamental rights and freedoms during a state of emergency, aggression, or any other situation that poses a severe threat to the nation, if stipulated by law and in congruence with international obligations of Finland. Importantly, when and how a government can declare a state of emergency is a question of ordinary law, rather than a constitutional one. This Article offers a comparative constitutional law analysis of the relative constitutional silence in Sweden and Finland as concerns emergency powers. The analysis takes as its starting point Böckenförde's The Repressed State of Emergency: The Exercise of State Authority in Extraordinary Circumstances.

Throughout the last decades, various non-state actors have been actively engaged in different aspects of international governance. More recently, a number of academic contributions explored the extent to which international law governs non-state actors. This Article advances the argument and explores whether non-state actors have developed law making capacities. Initially grounding itself in the Nuclear Tests and Kosovo cases of the International Court of Justice, the Article contends that non-state actors can create international rights and obligations through unilateral law-making processes. After a robust study, the Article concludes that unilateral non-state actions must meet three criteria to have legal effect as international law. First, producing such actions requires non-state actors of significant gravity. Second, other international entities must at least partly recognize these actions. Third, unilateral actions must justify their legal character with legitimate grounds. In meeting these three conditions, such unilateral actions of non-state actors produce international legal effects. As to its broader implications, the Article argues that the scope of international law has expanded to ensure that the voices of major international non-state actors are heard and reflected within the international legal order.

This article traces the evolution of judicial self-government practices (JSG) in Turkey and argues that the frequent changes in JSG are part of a broader trajectory of experimental constitutional politics. The Council for Judges and Prosecutors has experienced sharp turns since its establishment in 1961, respectively in 1971, 1982, 2010, 2014 and 2017. During this period, Turkey experienced different forms of judicial councils ranging from co-option, hierarchical and executive controlled judicial council models to a more pluralistic model. The Justice Academy of Turkey has also not been immune from this experimentalism. The article discusses the endogenous relationship between these often short-lived experiments of JSG and their impacts on the independence, accountability, and legitimacy of the judiciary and public confidence in the judiciary. The article then turns to the repercussions of JSG on separation of powers and democratic principle. It focuses on the implications of the ambiguous position of the Council in the state structure for the separation of powers, and the revived debate on democratic legitimacy of JSG after the 2017 constitutional amendments.

This Article critically considers the effectiveness of the European Union's (EU) counter-terrorist financing (CTF) strategies. In particular, it concentrates on the use of financial intelligence gathered from the submission of suspicious activity reports (SARs) by reporting entities to Member States Financial Intelligence Units (FIU). The Article identifies a series of weaknesses in the United Kingdom's (UK) reporting regime: Defensive reporting, increased compliance costs, and the definition of suspicion. It concludes by making a series of recommendations that are aimed at improving the effectiveness of the EU and UK CTF reporting obligations.

In James Elliott v. Irish Asphalt, the Court of Justice of the Union addresses the interplay between the EU legal order and harmonized standards—i.e. non-binding technical specifications for products drafted by private bodies upon request of the Commission. The judgment offers interesting insights from the public law and the private law points of view. This Article touches upon both aspects. First, it considers that the Court extends its jurisdiction over harmonized standards under Article 267 TFEU, thus paving the way for a deeper intersection between European judiciary and technical standardization. Second, the paper highlights the Court's understanding of the interplay between harmonized standards and national private law. In this latter regard, it is argued that a rigid separation between technical standards and legal provisions might be excessively formalistic considering the use of technical standards in practice.

The recent reforms of the Polish Judiciary have sparked a lively debate in Europe on the importance of judicial independence. This Article deals with the new Polish system of selecting and appointing judges and critically assesses it in the light of European standards for judicial appointments. It then compares the new Polish system to the German system of selecting judges, which has been advanced as a point of reference for the reform by the Polish government. Finally, the Article reconsiders and challenges some of the established concepts of German constitutional law as to the selection of judges and judicial legitimacy.

The Article was closed on September 2, 2017 and accepted for publication. Subsequent developments could be included until March 15, 2018. The authors would like to thank Judge Thomas Guddat and the Deutsch-Polnische Richtervereinigung (Association of German and Polish Judges) for providing valuable details on the reforms in Poland.

The Russian government is accused of hacking emails circulating among senior members of Hilary Clinton's campaign team to support President Trump's election in 2016. This was not the first time the United States was the target of massive cyber espionage: The Chinese government is believed to have gained sensitive information on 22.1 million US government employees through “cyber intrusions” in 2014. This Article will examine whether cyber espionage of this kind is unlawful under public international law and will conclude that it is. Specifically, such espionage can result in a violation of territorial sovereignty and will likely violate the principle of non-intervention in the internal affairs of other States. Yet, based on the controversial “clean-hands-doctrine,” past US actions in the realms of cyber espionage and intervention may well invalidate any claims it asserts against Russia or China.

Why is the fight against financial crimes such a central task for the EU? The EU has a strong interest to counter financial crimes and fraud against the EU budget as those crimes—so the EU legislator's claim is—hamper the trust in the market and undermine consumer confidence to engage in internal market transactions. In this Article, we aim to discuss the establishment of the European Public Prosecutor Office as a federal agent and the effects of this agent for establishing a robust EU financial crimes regime. Comparisons with the US system of US Attorneys—federal prosecutors—will be drawn to show that this institution has been quite effective at enhancing the protection of US financial market. The Article will then discuss to what extent the EU can, and should, learn from the American experience. We are particularly interested in the strong security focus in the EU and its consequences when it ventures into the area of financial crimes.

In this article, I present some aspects of the debate on the state of emergency that ensued in France after the terrorist attack at the Bataclan on November 13, 2015. The proposal by President Hollande to constitutionalize emergency provisions triggered the debate. I will also discuss why that attempt failed. In agreement with what Ernst-Wolfgang Böckenförde wrote in his article “The Repressed State of Emergency: The Exercise of State Authority in Extraordinary Circumstances,” I intend to show that constitutionalizing emergency measures—rather than presenting a threat to the Rechtsstaat—may be the best way to protect it. In the absence of a constitutionalized definition of competence and limits of such an exceptional power, the government can act without limits as to the exceptional measures that it may want to take.

The last three decades have brought important changes to the Romanian judicial system, especially concerning the struggle for independence and autonomy within the separation of powers equation. The internal and external context – i.e. the transition to democracy, after 1989, and the intention to join the European Union – determined an orientation towards the “Euro-Model” of judicial self-government. This has not come without difficulties and perils, both from the inside and from the outside. The article provides a comprehensive analysis of the Romanian system of judicial self-government in the context of these perils and emphasizes the link between the attempts to reinforce judicial independence and the anti-corruption fight, required by the supervision mechanism under which Romania has been placed at the moment of the EU accession. The increase in the number and intensity of such perils in the recent period has coincided with an increase in the number of high-level political corruption cases that have resulted in convictions. The article also discusses recent changes in the laws of the judiciary, which still are, partially, under parliamentary scrutiny, but which have raised serious concerns at the European level, as regards the progress made by Romania in achieving the objectives included in the Cooperation and Verification Mechanism.

The Article revisits the German Federal Constitutional Court's NPD decision and the concept of militant democracy regarding party bans in German constitutional law. It argues that the Court's new definition of the free democratic basic order approximates its jurisprudence to the standards developed by the European Court of Human Rights. The Article also compares the German and European standards for party bans. It assesses the respective required risks for democracy that a party needs to pose in order to justify a party ban. In this respect, it is argued that the German standard—though elevated—still falls short of the threshold under European human rights law. Finally, the NPD's anti-constitutional—but not unconstitutional—character is examined, and a recent constitutional amendment to exclude extremist political parties from party financing is evaluated.

This Case Note discusses the recent judgment of the German Constitutional Court (1 BvR 2019/16) requiring either the legal recognition of sex categories beyond male or female, or the aboltion of sex registration requirements. The Note considers the Court's decision within the broader constitutional case law on gender identity, and explores both the progressive potential, and the future—perhaps unforeseen—consequences, of the ruling. The Case Note proceeds in three sections. Section A introduces the facts of the constitutional challenge, and sets out both the submissions of the complainant, as well as the reasoning of the Constitutional Court. In Section B, the Case Note explores the domestic law novelty of the decision, placing particular emphasis on the application of a constitutional equality framework to persons who experience intersex variance. Finally, in Section C, the Case Note contextualizes the judgment, situating the reasoning of the Constitutional Court within wider movements for transgender—otherwise known as trans—and intersex rights.

In pursuit of solutions to curb cybercrime, legislators engage in an analysis proportionally weighing freedom of expression and other societal interests. The balance between the two concepts differs dramatically across different jurisdictions. This Article looks into a widely discussed legislative package regulating the online domain, enacted by the Sixth Convocation of the Russian Parliament (2011–2016)—the State Duma. The authors operate under the assumption that the Russian approach might have a broad spillover effect. With this in mind, the authors outline the current status quo regarding Internet regulations in the EU, disentangle and contextualize the legislation under scrutiny, emphasize Russian influence over Eastern European countries, and describe the tumultuous relationship between the Russian Federation and the European Court of Human Rights.

The free movement provisions enable EU citizens to follow their own ethical preferences by going to a Member State that has made a different ethical choice from their home Member State. However, UK citizens who have assisted suicide or euthanasia abroad could be criminally prosecuted on their return to England. This possibility of a criminal prosecution constitutes a restriction on free movement. Nevertheless, the free movement provisions have so far not been used to challenge the English prohibition of euthanasia. The aim of this article is to show that, based on its ultimate aim, free movement law does have a legitimate role to play in ethical issues. The internal market is based on a principle of recognition, which forces Member States to engage with regulatory choices made by other Member States. This also applies to ethical issues. Member States are not required to justify the existence of different ethical choices. However, if they decide to restrict free movement, they have to be able to show that these differences in fact exist. This approach achieves a balance between the right of citizens to make their own ethical choices, and the ability of Member States to protect their legislation on ethical issues.

Considering the European Union's efforts to tackle various forms of financial crime more effectively, especially since the financial crisis of 2008, one would expect that the Union has also been strengthening its grip on national law with respect to corporate financial crime. Instead, this Article finds that the EU approach to corporate financial crime has actually not evolved that much over the past two decades. Moreover, this Article demonstrates that EU law still fails to sufficiently take into account the specific features of corporate entities (as opposed to individuals), as well as to fully exploit the potential strengths of a criminal law approach, as opposed to an administrative or civil law approach. In the author's view, the EU should more carefully consider the objectives and strengths of different kinds of enforcement mechanisms and adopt a more coherent approach, particularly with respect to corporations. Furthermore, when it comes to corporate punishment, the EU seemingly lacks ambition and creativity. EU legal instruments focus strongly on fines while insufficiently exploring other, potentially more adequate sanctions to achieve certain punishment goals. Ultimately, this may undermine the effectiveness of the EU's fight against corporate financial crime.

The article discusses the development in the administration of the Slovak judiciary since the separation of Czechoslovakia and the impact of the empowerment of the judicial self-governance on the functioning of the judicial system. After independence, the administration of the judiciary initially rested in the hands of the executive. In 2002, Slovakia created its Judicial Council and transferred a considerable amount of powers on it, especially related to judicial careers. It was expected that this would de-politicize the judicial system. However, a high level of autonomy of the judiciary chiefly led to the empowerment of judicial elites. This reduced the democratic accountability of the judiciary, encapsulating it from society and enabling it to promote its own interests. Selection processes have often been used to fill judicial ranks with judges with close ties to the system. Accountability mechanisms such as promotions, disciplinary procedures or remuneration schemes were used to reward allies of those on the top of the hierarchy and to punish their critics. Still, adherence to EU-backed standards on the administration of the judiciary may have increased the legitimacy of the judiciary, while concentrating decision-making in one body enhanced transparency, which was furthered due to low public confidence resulting in unprecedented levels of information available about the Slovak judicial system. All in all, the Slovak example displays the dangers of establishing judicial self-governance in countries where an internal ethical culture and a strong sense of judicial duty are still lacking.

Modern federations are faced with the challenge of cross-state as well as cross-nation economic activities and with the ever-increasing mobility of society. This has not only promoted international law, but has also created the need for harmonized laws throughout federations within the competence areas of the states. Diverse laws within federal systems may increase transaction costs, cause delays, and lead to jurisdictional conflicts for nationwide or cross-state transactions. In order to preserve federalism, and therefore prevent an ever-advancing process of centralization, interfederal legal harmonization promoted by the states themselves is crucial. There are two distinct methods of legal harmonization of state laws: (1) harmonization by “Uniform Law Conferences,” which are in principle run by lawyers and thus independent, to a certain extent, from the influence of policy makers; and (2) harmonization by executive intergovernmental conferences. These two distinct models of interfederal legal harmonization will be analyzed and evaluated with regard to efficiency, compatibility with democratic principles, transparency, and accountability in a comparative legal study of the harmonization processes. This Article will scrutinize the federal systems of the United States and Canada, on the one hand, as well as those of Germany and Austria, on the other hand. The study will reveal that the efficiency of interfederal legal harmonization increases with the level of intergovernmental integration through the participation of government officials and their staff.

In the face of a recent increase in the number of Islamic terrorist attacks all over the globe—particularly in Europe—counterterrorism has become a main field of political and legal activity once again. In this turbulent context, this Article will look back on how German legislation has reacted to the first significant occurrences of Islamic terrorism in Europe and the United States in the 2000s and how the Constitution has been put in place in the conflict between individual and collective interests by the Federal Constitutional Court in this context. From the wide range of counterterrorism measures that were significantly shaped along the principles of the Constitution since then, this Article takes a detailed look at the legal issues relating to a very specific measure—legislation allowing the shooting down of a hijacked plane. This issue has been vigorously debated among politicians, scholars, and courts in Germany since 2004. It constitutes a vital element of the fundamental legal structures that governs state action that violates certain legal interests in order to protect conflicting ones—a key question for other recent strategies of terrorism as well.

Over the course of the last three years, British Government counter-terrorism policy has shifted significantly to embrace “counter-extremism.” This is justified not only in terms of addressing the underlying causes of terrorism, but also in its own right as addressing the “harm” of extremism. These proposals raise fundamental questions about the limits of religious and other civil liberties. However, the problem of extremism is not new. The German public intellectual and constitutional lawyer Ernst-Wolfgang Böckenförde reflected extensively on the same problem in the context of German responses to left-wing radicalism in the mid-1970s. His work touched on both concrete legal problems as well as fundamental philosophical assumptions about the nature, characteristics, and limits of the liberal democratic constitutional state. In this article, I seek to retrieve his ideas and arguments for the current British context. I argue that the current discourse of extremism and fundamental British values risks being used as a vehicle for promoting a “progressive” public ideology of individual self-creation. This fails to take moral and religious diversity seriously, and its implementation betrays the foundations of the liberal democratic constitution. It provides striking confirmation of Böckenförde's thesis that the liberal state is perennially prone to a totalitarian tendency to seek to generate its own distinctive ethical community. As Böckenförde recognized, what is needed instead is the recovery of a thin common morality of civic loyalty as shown pre-eminently in obedience to law.