This article argues that the European Central Bank (ECB), supported by the Court of Justice of the European Union (CJEU), can be perceived to have functionally softened the no sovereign lender of last resort (LOLR) rule originally implied by Articles 123 and 125 of the Treaty on the Functioning of the European Union (TFEU) towards a rule-with-exceptions and, increasingly, towards a presumption: The ECB will act as sovereign LOLR to a constituent Member unless and until that Member is insolvent or unwilling to cooperate with measures designed to restore market confidence. This functional moderation of a rule, from an ex ante specification of an outcome towards the exercise of greater choice at the point of application, carries with it contentious normative questions. To motivate discussion thereof beyond a largely ahistorical, non-indexical, rules versus discretion debate, the rules of the currency union are located within the genealogy of international exchange rate regimes. The “convertibility” rule of the gold standard and the “parity” rule of the Bretton Woods system are contrasted with their Eurozone equivalent. A consequentialist standpoint is sketched out from which the interventions of the ECB, in light of their available alternatives, appear broadly consistent with welfarist cost-benefit analysis and less normatively worrisome than by reference to evaluative criteria that emphasize a narrowly rule-bound conception of the rule of law.

The burgeoning literature on the democratic deficit of international organizations, and the United Nations in particular, has, for the most part, inherited a pervasive state-centrism commonly associated with conventional approaches to international law more generally. While this approach is understandable, it appears incompatible with a holistic account of democracy, especially accounts that seek to situate the locus of power within the individual. Drawing on attempts to empower individual citizens to influence global governance decision-making in other contexts—especially the experience of the European Citizens’ Initiative—this Article considers a bold idea: The establishment of a “World Citizens’ Initiative,” through which individuals could directly influence the agenda of the primary organs of the United Nations. This Article critically analyzes the legal feasibility of such an initiative and the challenges of implementation. In doing so, it offers both a theoretical and institutional contribution to the debate about the normative case for the democratization of global governance through effective citizen participation.

Border controls within the Schengen area are meant to be a thing of the past. Yet, since the refugee crisis of 2015, “temporary” border controls have become quasi permanent in several European Union Member States. Although these controls are against the letter and spirit of the Schengen Borders Code, the Commission has not taken any measures to enforce these rules. One of the reasons for the dismal state of the Schengen area is the one-sided focus on the abolition of internal border controls as primarily functional for the establishment of the internal market. This comes at the expense of Union citizens’ rights and disregards the fundamental role that the abolition of border controls has on how citizens see the Union in political terms and conceive themselves as Union citizens. Against this background, we argue that from its beginning the objective of the project to abolish border controls was to foster a supranational political identity of Union citizens by transforming citizens’ spatial experience. Union citizenship in the current EU Treaty framework constitutes the legal expression of that historical connection between the abolition of border controls and free movement. Emphasizing the citizenship dimension of an area without internal frontiers provides a different perspective on current controls at the Schengen internal borders.

Economic interventionism in the form of subsidization and operation of state-owned enterprises (SOEs) is today among the main frontlines of international trade conflicts. Along with trade restrictions and new legislation designed to impact cross-border investment, mergers, and acquisitions, the use of subsidies and countervailing measures by governments and trade-distorting effects of SOEs have lately caused harsh controversies within and outside the World Trade Organization (WTO) between its members. Going forward, there are reasons to expect these tensions to intensify rather than diminish in number and importance. This Special Issue aims at examining the development of international trade rules regulating state interventionism against the background of the Covid-19 global pandemic and present shifts in global geopolitics and the economy. This introduction, in presenting the state of the art on the questions tackled by this Special Issue and highlighting its contribution to existing literature on the topic, offers different considerations aimed at bringing together various trends emerging from the Articles contained in this Special Issue. It also explores avenues for further research and reflection.

Environmental law has long been an area of concern in terms of correct implementation and enforcement. In this context, the Commission’s enforcement focus has been on “systemic” breaches of environmental law (that is, breaches that form part of a pattern of individual breaches that, taken together, because of their repeated or widespread nature, have a significant effect on the environment). Proving the existence of such breaches in environmental law presents a number of peculiar features, because of the scientifically–loaded questions which underlie environmental legislation. The aim of this article is to relate the established approach of the CJEU towards scientific uncertainty to the specific situation in which the Commission asserts that a breach of EU environmental law has a systemic nature. It will show that, while the CJEU has been sensitive to the systemic nature of the claims brought forward by the Commission by using some of the procedural tools at its disposal, its general reticence to engage with the substantive claims at stake might have the potential to reduce the effectiveness of the infringement proceedings as a tool to adequately pursue systemic breaches of EU environmental legislation.

This study analyzes empirically how 236 German court decisions assess the credibility of asylum seekers’ accounts of their persecution. In their reasoning, the courts rely on generally accepted content-based credibility criteria, including consistency, level of detail, and timeliness of the claim. But they also rely on conduct-based criteria, which have been resoundingly discredited in the relevant scientific literature. Too rarely, the courts considered confounding factors such as cultural distance or interpreter mistakes. They need to be more aware of their duty to confront applicants with negative credibility criteria. Article 4 (5) Qualification Directive played no role whatsoever in the sample analyzed in this study, which can be explained by specifics of German asylum law.

The human judgment that is required in the balancing of credibility criteria and confounding factors is problematic for its subjectivity but unavoidable. Attempts at replacing this human credibility assessment with seemingly objective technical means have led to arbitrary decisions and encroached gravely on applicants’ human rights. While the credibility assessment procedure employed in German courts is far from flawless, it can produce convincing decisions. It should be further refined and provided with safeguards to arrive at decisions that are as rational and objective as possible.

This article presents an account of the work of the American constitutional law scholar, Paul W. Kahn, by situating it within a European tradition of political jurisprudence. After introducing certain basic features of this school of political jurisprudence, it proceeds to examine and evaluate Kahn’s work relating to the political, the state, sovereignty, collective identity and constitution within the framework of that distinctive worldview.

Contrary to predominant European constitutional narratives assuming the alignment between the European Union legal framework and national constitutional orders, this Article points at the current misalignment between the prevailingly purposive European Union institutional order and the prevailingly open character of the Democratic and Social Constitutional State. The evolutionary trajectories leading to the current status quo are examined by distinguishing an age of openness, in which the institutional frameworks of both the European Economic Communities and the Democratic and Social Constitutional State lent themselves to a range of competing legislative renderings, from an age of purposiveness opened by the Treaty of Maastricht, in which a neoliberal policy agenda was gradually entrenched in the Treaties, with the result of undermining the adaptability and inclusiveness of European public law structures. To counter this development, this Article identifies in a drastic deconstitutionalization of the Economic and Monetary Union the key move to favor the realignment of the European Union and the Democratic and Social Constitutional State.

This Article contributes to the discussion about the development of international trade regulation of state interventionism by situating the tensions that exist about the future design of subsidies and state enterprises treaty regulation in the broader context of current systemic challenges to the multilateral trading system. While recent studies have explored the issues of subsidies and state-owned enterprises (SOEs) as one of the most significant in impact among the contemporary challenges to the WTO, there is certainly scope to discuss further such a problem from the broader point of view of the crisis of the multilateral trading system, its systemic challenges and the concomitant increasing politicization of international trade relations. To this end, this Article analyzes the interactions between the lasting decline of the WTO, growing political interferences with international trade flows and the prospects of reforming multilateral trade rules to address its systemic challenges and manage/mitigate newly central problems of the 21st century such as the Covid-19 Pandemic, climate change and the greening of economic production and international trade. The Article argues that existing WTO rules are not adequate to address these challenges and problems. It concludes that, like in the GATT era, it is only the spirit of pragmatism that may provide chances to find alternatives to growing frustration with negotiating inaction and, hence, to reform the system. However, the question remains whether it is possible to find an approach to imagine, remodel and craft multilateral rules that are sensitive to different economic, political, and social choices and able to rebalance the position of all members, large and small, rich and poor.

The article provides a meta-analysis of the structural impact of digitalization on international law. It synthesizes the contributions of this special issue, showing how their findings are interrelated and which cross-cutting trends we can observe. It uses an analytical framework designed to assess structural changes in international law by analyzing the impact that digitalization has on key reference points: Actors, norms, and values. From this assessment, it draws the conclusion that digitalization is changing, and will continue to change structural features of international law.

The European Green Deal and the European Climate Law highlight the EU’s commitment to strive for carbon neutrality. Considering the magnitude of the global challenge, it is evident that a green transition will not succeed without the efforts of every sector, including financial institutions. Concerns have been raised that central banks may, in fact, contribute to the increase of greenhouse gas emissions and, in consequence, aggravate global warming. This all has currently resulted in a rapid expansion of the debate on the potential role of central banks, and in particular the ECB, to consider climate objectives. In the European context, however, it is often argued that environmental sustainability lies outside the ECB’s traditional core mandate to focus on price stability. This article aims to introduce the environmental integration principle, laid down in Article 11 TFEU, in the ECB’s legal framework, and provide an analysis of the possibilities for and limitations to the greening of the ECB's monetary policy based on this provision. Although Article 11 TFEU has great potential with regards to the greening of sectoral policies, in legal literature, the provision has not gained enough academic attention in terms of the financial sector.

With the publication of the Panama Papers in 2016, law firms and attorneys came under the spotlight of international anti-money laundering efforts. It became clear that attorneys, protected by the attorney-client privilege, play a significant role in concealing the origin of illicit funds and the constructing of offshore company-schemes. The public outcry prompted legislators to hold these facilitators accountable and to prevent money-laundering activities by imposing reporting obligation on them, whenever there is the suspicion of a client being involved in illicit activities. Unsurprisingly, attorney and professional associations voiced considerable opposition to these legislative efforts claiming an erosion of the attorney client privilege and nothing less than an attack on the rule of law. This article examines the attorney-client privilege from a historical, empirical, and constitutional perspective. A brief analysis of the legal frameworks in Germany and Switzerland exemplifies how reporting obligations affect legal practice and what challenges exist for attorneys. Both countries are considered global hubs for money laundering activities. The legal concepts of holding attorneys accountable in the neighboring countries differ in some respects. In conclusion, it shows that the legal professions successfully managed to widely avoid a ‘responsibilization’.

This article considers the structural barriers that exist for individuals to hold the EU responsible for violations of human rights abuses in its CSDP missions, despite the theoretical availability of a framework for remedies. This is a result of jurisdictional complications with CFSP/CDSP measures, attribution difficulties, and ambiguity in what constitutes unlawful human rights conduct. While alternative measures exist to compensate individuals for violation of their rights, these do not align with the often-stated right to an effective remedy within the EU. As such, this Article argues that the field requires serious reform in order to ensure that legal relief for individuals against unlawful conduct by the EU is an effective and enforceable right.

Faced with a changing geopolitical environment, the European Union has embarked on a legislative program to upgrade its unilateral trade instruments toolbox. By reforming existing instruments—for example, anti-dumping—and by adding new instruments to the European Commission’s toolbox (foreign subsidies instrument, international procurement instrument, anti-coercion instrument, and others), the EU legislature is significantly strengthening the position of the Commission in the governance of unilateral trade policy in the EU. This development raises accountability questions. By means of a comparative analysis of democratic accountability in unilateral trade policy in the United States and the EU, I describe this transformation of executive power in the EU and I argue that a further strengthening of democratic accountability mechanisms is needed to match the Commission’s growing responsibilities in this underexamined corner of EU trade policy.

Paul Kahn has offered a fascinating account of the role of political theology in the field of law, through an exploration of some core concepts of the discipline. This article explores the nature of Kahn’s undertaking through a comparison with Carl Schmitt. The conclusion is that, rather than actual theology, Kahn’s “political theology” is a valuable form of legal anthropology anchored in an exploration of our legal culture.

The article discusses the role for systemic and particular deficiencies in EU criminal law. It does so by analyzing in depth that law as regards the European Arrest Warrant (EAW), but also across measures of EU criminal law that have not yet been explored under this light. While the attention of the literature has been mainly on the EAW and the way those deficiencies can led to refusing the execution of the warrant, a wider assessment reveals the existence of a latent law of the systemic and the particular in this field. The conclusions reveal that the understanding and application of systemic and particular deficiencies in EU criminal law have significant implications in terms of the principle of mutual trust and the complex interaction between different EU values.

This article explores the extent to which key normative and institutional responses to the challenges raised by the digital age are compatible with, or interact with, changes in key features of the existing international human rights law (IHRL) framework. Furthermore, the article claims that the IHRL framework is already changing, partly due to its interaction with digital human rights. This moving normative landscape creates new opportunities for promoting human rights in the digital age, but might also raise new concerns about the political acceptability of IHRL. Following an introduction, Section B of the article will describe the development of digital human rights, using a “three generations” typology. Section C will explain how new developments in the field of digital human rights coincide with broader developments in IHRL, including: the extra-territorial application of human rights, obligations on governments to actively regulate private businesses and the erosion of normative boundaries separating specific human rights treaties from other parts of IHRL and international law. These two segments are followed by concluding remarks.