In his final publication Derrida argues for a rather wide notion of the concept of sovereignty. Sovereigns are not only public officers and dignitaries, or those who invest them with sovereign power – we all are sovereigns, without exception, insofar the sovereign function is nothing but the rationale of all metaphysics, anchored in a certain capability, in the ability to do something, in a power or potency that transfers and realizes itself, that shows itself in possession, property, the power or authority of the master, be it the master of the house or in the city or state, despot, be it the master over himself, and thus master over his passions which have to be mastered just like the many-headed mass in the political arena. Derrida thinks the sovereign with Aristotle: the prima causa, the unmoved mover. It has been often remarked that philosophy here openly reveals itself as political theology. Derrida thus refers to the famous lines of the Iliad, where Ulysses warns of the sovereignty of the many: “it is not well that there should be many masters; one man must be supreme – one king to whom the son of scheming Saturn has given the scepter of sovereignty over you all.”

“Die Geschichte ist Gegenstand einer Konstruktion, deren Ort nicht die homogene und leere Zeit sondern die von Jetztzeit erfüllte bildet.” wrote Walter Benjamin. “So war für Robespierre das antike Rom eine mit Jetztzeit geladene Vergangenheit, die er aus dem Kontinuum der Geschichte heraussprengte.” (“History is the subject of a construction whose site is not homogeneous, empty time, but time filled full by now-time. Thus, to Robespierre ancient Rome was a past charged with now-time, a past which he blasted out of the continuum of history.)

This paper aims at explaining the basic logical structure of proportionality assessments, under the assumption that such assessments are based on quantitative reasoning, even when no numbers are given.

This introductory Article sets out the premise of the Special Issue, the entrenched and pervasive nature of human rights violations in the context of migration control and the apparent lack of accountability for such violations. It sets out features of contemporary migration control practices and their legal governance that contribute to this phenomenon, namely the exceptional treatment of migration in international law; the limited scope of international refugee law; and the pervasive use of externalized, delegated migration controls, in particular by the EU and its Member States. The roots of the current condition are traced back to the containment practices that emerged at the end of the Cold War, with the 2015 “crisis” framed both as an illustration of the failures of containment, and a source of further stasis. Following an overview of the contributions that make up the Special Issue, this Article identifies five emergent themes, and suggests further lines of inquiry. These are: the promise and limits of strategic human rights limitations; the role of both international criminal law, and domestic (and regional) tort law in securing accountability; the turn to positive obligations to challenge entrenched features of containment; and the role of direct action in support of and solidarity with those challenging migration controls most directly, refugees and migrants themselves. Rather than offering panaceas, the Article concludes with the identification of further new challenges, notably the role of new technologies in further dissipating lines of accountability for decisions to exclude.

The history of the “Integration through Law” (ITL) project, conducted by Mauro Cappelletti at the European University Institute in the late 1970s and 1980s, unfolded in this Article, provides clarity on the nature of the power-knowledge nexus in European law, as it pulls the curtain on the close collaboration between academia and the Community institutions in the ITL project. It demonstrates that the ITL was an academic expression of a constitutional vision, which had flourished in the Commission and the European Court of Justice (ECJ) for decades, but had never truly been adopted in the emerging academic discipline of European law. Alongside the studies of Eric Stein, the ITL project was the impetus behind the constitutional discourse in academia turning into a paradigm in the 1980s, but the ITL project had an unparalleled impact. Firstly, because of the scholarly environment at the European University Institute (EUI), and secondly, because of the notion of “Integration through Law,” which has proved to be an extremely powerful concept, providing a field of scholars, law professors, civil servants from the Community institutions, and ECJ judges with a flattering self-image and a raison d'être expressed in three little words.

The United Nations Sub-Commission for the Promotion and Protection of Human Rights unanimously approved the “Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights” (the Norms) on 13 August 2003. Together with the interpretative Commentary, the Norms constitute an authoritative guide to corporate social responsibility. They are the first set of comprehensive international human rights norms specifically aimed at and applying to transnational corporations and other business entities (companies). They set out the responsibilities of companies with regard to human rights and labor rights, and provide guidelines for companies in conflict zones. They prohibit bribery and provide obligations with regard to consumer protection and the environment. General provisions of implementation include the obligation to provide reparation for a failure to comply with the Norms.

In this journal, Buchheim and Beiersdorf discussed recent changes in the regulation of the management report (Lagebericht) in Germany. The German Commercial Code (HGB – Handelsgesetzbuch) requires a management report by individual entities classified as companies with limited liability in § 289 and by groups in § 315. The reporting requirements of the latter are specified by the German Accounting Standard GAS 15 on Management Reporting. The authors award the German regulation to potentially lead the way internationally.

Restrictions on political association and expression are problematic from a democratic point view. The default assumption seems to be that democracy minimally entails that all citizens have claims to participate in the legislative programming of society, which, given the size and complexity of democratic societies, they have to realize to a significant degree as participants in the debates of a political public sphere or through their membership in and support for political organisations such as parties. If they lack such chances, political decisions will lack democratic legitimacy. Where the law prohibits such options, \“it cuts off the possibility of participating in the open ended future required by democracy. Precisely to the extent the law imposes a version of what the future can or cannot be …[people] are reduced to heteronomous subjects, instead of autonomous citizens.\” It follows that the burden of justification for future-constraining regulations on freedom of association and expression is on those who propose and favour them.

The study describes Hungary's policy towards asylum seekers and refugees in the tense period of 2015–2016 before and after the erection of fences at its southern borders of Hungary. It offers a theoretical explanation of the legal measures and practical actions. After briefly reviewing the factual basis, that is the magnitude of the movements and the number of decisions taken in the EU and in Hungary and the pertinent legal changes in 2015–2016 it elaborates the theoretical fundaments. Securitization majority identitarian populism and crimmigration are invoked as explanatory frames. The paper then reassembles the factual elements under six headings showing them in a new light. These are: denial, deterrence, obstruction, punishment, free riding constituting lack of solidarity and breaching the law (international, European, domestic). Finally the question is raised if all these moves are compatible with the duty of loyal cooperation of Member States with each-other and the EU as prescribed by article Article 4 (3) TEU.

The relation between internal market freedoms (the so-called “fundamental freedoms”) and fundamental rights is a recurring question in EU law. In recent years, after rulings such as Schmidberger, Omega, Viking, and Laval, attempts to provide a framework for approaching and resolving clashes between fundamental freedoms and fundamental rights have acquired a special urgency. Less attention, however, has been devoted to capturing the different nature of fundamental freedoms and fundamental rights, and to evaluating the implications of the choice whether or not to include fundamental freedoms in the same category as fundamental rights. The dominant focus in the literature is on what happens when free movement and fundamental rights pull in different directions. Yet, the question of whether fundamental freedoms should be regarded as fundamental rights also deserves close scrutiny. It is especially important to understand the implications of this classification since the EU Charter of Fundamental Rights appears to treat some, but not all, fundamental freedoms as fundamental rights. In particular, the Charter seems to regard the free movement of persons and services as fundamental rights, but not the free movement of goods or the free movement of capital. A similar approach is exhibited in the case law: While the Court recognizes the fundamental rights character of free movement of persons, it does not appear to extend that characterization to the entirety of free movement law. This article attempts to make sense of this dichotomy by relying on an account of fundamental rights that adopts a non-instrumental focus on the right-holder. It argues that certain free movement provisions, namely the free movement of goods and capital, cannot be characterized as fundamental rights because they are inherently instrumental—they are a means to the internal market end. By contrast, the other free movement provisions appear to match the account of fundamental rights adopted here. As this article aims to show, the classification of certain, or all, fundamental freedoms as fundamental rights is a question that affects the interpretation of the scope of the free movement provisions. Moreover, as will be seen, the question is closely related to the debate on the convergence between the free movement provisions, and on the persistence of the “wholly internal rule,” the rule that requires a cross-border connection to trigger the application of free movement law.

Contemporary discussions of populism elide important distinctions between the ways in which populist leaders and movements respond to the failures of elites to follow through on the promises associated with international social welfare constitutionalism. After laying out the political economy of populisms’ origins, this Article describes the relation between populisms and varieties of liberalism, and specifically the relation between populisms and judicial independence understood as a “veto point” occupied by the elites that populists challenge. It then distinguishes left-wing populisms’ acceptance of the social welfare commitments of late twentieth century liberalism and its rejection of some settled constitutional arrangements that, in populists’ views, obstruct the accomplishment of those commitments. It concludes with a description of the core ethnonationalism of right-wing populism, which sometimes contingently appears in left-wing populisms but is not one the latter’s core components.

This Article consists of five sections. In the first section, it describes why identity questions matter, particularly in Europe. In the second section, the Article tackles the issue of multiple structural ambiguities affecting the concept of constitutional identity in the European constitutional vocabulary. In the third section, the Article explores trends concerning the use of constitutional identity in the European legal discourse and practice, including the development of alternative interpretations and applications of the notion of constitutional identities in the Member States. The fourth section of the Article combines the analytical accounts outlined in the second section with the trends identified in the third section, contending that different conceptions and applications of constitutional identity have varying effects on the European composite constitutional adjudication system and that the institutional and procedural framework should be calibrated accordingly. The final section of this Article draws some conclusions.

This article argues that the establishment of the National Council of the Judiciary in 1989 and the empowerment of the general assemblies of court judges gave rise to the idea of judicial self-government in Poland. This very idea of self-government, implying that judges hold important decision-making or veto powers on matters concerning the judiciary, was regarded as a precondition of the separation of powers and judicial independence, neither of which existed under Communist rule. However, the package of laws introduced in 2017 marks the end of judicial self-government as we know it. Not only did it undermine the independence of the National Council of the Judiciary by altering the mode of electing its judicial members, but it also concentrated the power over the judiciary in the hands of the executive branch, allowing for, inter alia, the exchange of key positions in court administration and the reconfiguration of the Supreme Court. This article examines the impact of this “reform” on such values as independence, accountability, and transparency. Investigating the role of judicial self-government in ensuring the principle of separation of powers and democracy, the article concludes with an assessment of the early consequences of the introduced changes for the Polish judiciary.

On 27 November 2012, the European Court of Justice (“the Court”) rendered its judgment in the Pringle case. Sitting as a plenum, which is extremely rare, the Court did what had been expected. Just as the Bundesverfassungsgericht (German Federal Constitutional Court or BVerfG) had done two months earlier, it gave the go-ahead for the euro area's permanent emergency instrument, the European Stability Mechanism (“ESM”). With this decision, the possibility of granting assistance to financially distressed euro area Member States has now been secured for the future.

The “Treaty establishing a Constitution for Europe” elicits divergent scholarly responses. An apologetic view holds that it is the best of all possible constitutions, given the current constellations of political forces. Such a viewpoint is countered by a mixed choir of critics for whom the document is simply another treaty, a “nostalgic project,” or a merely “semantic constitution.” Some even believe that the recourse to constitutional rhetoric endangers the rational substance of the European status quo; others fear that this very conceptuality could be damaged. The present chapter endeavors to find a third approach. It offers a critical stance as regards the unfortunate, phraseological, sometimes even ideological language of the Constitutional Treaty. Simultaneously, the constitutional text is taken seriously in its normative statements. This approach aims to reconstruct the document from a point of view which depicts it, despite its contradictions, as a project with a rightful place in the tradition of Western constitutionalism.

The secession of Crimea and—more broadly—the conflict in Ukraine reopened questions concerning the limits of a democratic expression of the will of the people and the use of force in order to procure annexation of a territory belonging to another State. This article seeks to clarify the law governing the change of the legal status of a territory through secession and merger with another state. It argues not only that the right of self-determination does not grant an entitlement to alter the legal status of a territory, but also that general international law does not prohibit such an alteration. The rules of international law favor the stability of the existing international borders and thus the territorial status quo, but this does not mean that a unilateral attempt at altering an existing territorial arrangement automatically constitutes an internationally wrongful act. Any change of the legal status of a territory becomes illegal, however, upon an outside use of force. Such an illegality cannot be “cured” by a democratically expressed will of the people.

Terrorist acts have, for a long time, constituted a major concern for the international community. Yet the definition of terrorism has represented an area of international law where the divergence of views between States was significant. For some, the protection of the State and of the democratic values of the society laid at the heart of the debate, whereas others were more concerned with the risk of an unjustified repression of “freedom fighters.” These approaches, although apparently complementary, have proved to be irreconcilable in practice. At the United Nations’ level, this division of the international community prevented the emergence of a consensus over a horizontal definition of terrorism. This situation,-paradoxically did not impede the adoption of several international conventions dealing with specific aspects or forms of terrorism as well as of multiple resolutions on this issue.

One day before the historic trial against Radovan Karadžić was due to begin, Biljana Plavšić, a former Bosnian Serb leader, was released from prison after serving two-thirds of an 11-year sentence for war crimes. She flew in from Sweden to Belgrade, where she was welcomed by the Prime Minister of Republika Srpska. While Plavšić was on her way home, more than a hundred representatives of Bosnian nongovernmental organizations were heading from home to the Hague, to be present for the beginning of the Karadžić trial. Drawing on cases of returning war criminals, this article argues that similar to Bosnian citizens and war criminals who are commuting in different directions, cosmopolitan and local forms of justice in Bosnia and Herzegovina are also progressing in opposite destinations.

Generations of politicians and lawyers will have to read and re-read the recent ruling of the German Constitutional Court of 30 June 2009 regarding the Treaty of Lisbon (“Lisbon Case”) on almost a daily basis for many years to come. The Court, master of its own proceedings and not feeling bound by any doctrine of judicial self-restraint, has expounded in this decision at great length about its own philosophy of the European integration process. Based on its self-established theory, in which every German citizen is holder of a democratic right to a legislature that is endowed with substantial powers to determine the destiny of the German people, the Court examined the Treaty in each and every detail. The claimants, alleging through a constitutional complaint that this democratic right had been breached, could not point to any specific injury that they had suffered. In real terms, their constitutional complaints amounted to an ‘abstract' review of the Treaty, a remedy which the Basic Law reserves for the federal government, any government of a Land, or for a third of the members of the Bundestag. But the Court saw the constitutional complaints, which had been filed by the extreme right and the extreme left of the political spectrum, as a welcome opportunity to define the constitutional limits of the European integration process. Far from reflecting the views of the framers, the ruling reads like a political manifesto from the judges.