Quality of Reasoning in International Criminal Tribunals

It is not unreasonable to say that international criminal law is, for the most part, a judge made law. For better or worse, given the diffused nature of its sources of law as well as the institutions built to enforce it, the rising case law gave the international criminal courts a chance and a burden to develop international criminal law into an expansive, and familiar, branch of international law. In this Chapter, I attempt to analyse and elaborate the main vehicle through which this transformation has taken place – the judgements of the courts – in terms of the quality of their reasoning. I will piece together some general rules of thumb that have been created in the branch of international criminal law to assess the quality of reasoning of the different International Criminal Courts. My focus will be the work of the International Criminal Court, although the work of the ICC rests to a large degree on the work of the previous ad hoc tribunals. As such, I will analyse the criticisms that have been levelled at the international criminal tribunals in terms of their interpretation and reasoning, highlight some of the continuing concerns and assess the ICC’s current practice

Vilhelm Lundstedt’s ‘Legal Machinery’ and the Demise of Juristic Practice

This article aims to contribute to the academic debate on the general crisis faced by law schools and the legal professions by discussing why juristic practice is a matter of experience rather than knowledge. Through a critical contextualisation of Vilhelm Lundstedt’s thought under processes of globalisation and transnationalism, it is argued that the demise of the jurist’s function is related to law’s scientification as brought about by the metaphysical construction of reality. The suggested roadmap will in turn reveal that the current voiding of juristic practice and its teaching is part of the crisis regarding what makes us human

NAFTA Chapter 11 as Supraconstitution

More and more legal scholars are turning to constitutional law to make sense of the growth of transnational and international legal orders. They often employ constitutional terminology loosely, in a bewildering variety of ways, with little effort to clarify their analytical frameworks or acknowledge the normative presuppositions embedded in their analysis. The potential of constitutional analysis as an instrument of critique of transnational legal orders is frequently lost in methodological confusion and normative controversy. An effort at clarification is necessary. We propose a functional approach to supraconstitutional analysis that applies across issue areas, accommodates variation in kinds and degrees of supraconstitutionalization, recognizes its simultaneously domestic and transnational character, and reflects its uneven incidence and impacts. We apply this framework to NAFTA to consider whether and how it superimposes a supraconstitutional legal order on member states\u27 domestic constitutional orders. We show that the main thrust of this contemporary supraconstitutional project is to restructure state and international political forms to promote market efficiency and discipline, enable free capital movement, confer privileged rights of citizenship and representation on corporate capital, insulate key aspects of the economy from state interference, and constrain democratic decision-making

E-Democracy and the European Public Sphere

The chapter starts with an outline of outstanding recent contributions to the discussion of the EU democratic deficit and the so-called “no demos” problem and the debate about European citizenship and European identity—mainly in the light of insights from the EU crisis. This is followed by reflections on the recent discussion on the state of the mass media-based European public sphere. Finally, the author discusses the state of research on the Internet’s capacity to support the emergence of a (renewed) public sphere, with a focus on options for political actors to use the Internet for communication and campaigning, on the related establishment of segmented issue-related publics as well as on social media and its two-faced character as an enabler as well as a distorting factor of the public sphere. The author is sceptic about the capacities of Internet-based political communication to develop into a supranational (European) public sphere. It rather establishes a network of a multitude of discursive processes aimed at opinion formation at various levels and on various issues. The potential of online communication to increase the responsiveness of political institutions so far is set into practice insufficiently. Online media are increasingly used in a vertical and scarcely in a horizontal or interactive manner of communication

Im Namen des Europäischen Clubs rechtsstaatlicher Demokratien: Zu Identität, Mandat und nationaler Pufferung der EGMR-Rechtsprechung

Der EGMR steht unter Beobachtung. Laut der Kopenhagener Erklärung unterziehen die Konventionsstaaten seine Rechtsprechung einer Evaluation, um über weitere Reformschritte zu entscheiden. Wie soll eine solche Bewertung aussehen? Sie kann zum einen mit Blick auf die Quelle der demokratischen Legitimation des EGMR, zum anderem mit Blick auf die sich ihm stellenden Herausforderung stattfinden. Der vorliegende Beitrag geht von der These aus, dass der Gerichtshof im Namen des Europäischen Clubs rechtsstaatlicher Demokratien spricht und die größte Herausforderung darin liegt, dass er dies weiterhin glaubwürdig tut

Countering the Judicial Silencing of Critics – Article 2 TEU Values, Criminal Liability and Reverse Solange

When a government instrumentalises subdued judges to silence critics, fundamental rights in the EU face a truly deep-seated problem. Yet, the Union has ways to confront such abuses. First, this contribution shows novel ways of how to respond under Union law and even beyond the scope of the EU Charter: a duty of value-oriented interpretation of national law, a duty of referral and – as a last resort – the criminal liability of disobeying judges. Second, it justifies these ways via the Reverse Solange doctrine which protects essentials of fundamental rights against authoritarian tendencies while maintaining the federal balance between the EU and its Member States. At its heart, it consists of implementing the framers’ decision of Article 2 TEU via a systematic, value-oriented interpretation of all primary law