Conconi, P. and Schepel, H. (2017). Argentina-Import Measures: How a Porsche is Worth Peanuts. World Trade Review [Online] 16:349-369. Available at: https://doi.org/10.1017/S1474745616000574.
The dispute Argentina-Measures Affecting the Importation of Goods concerns a series of measures imposed by Argentine authorities on economic operators as a condition for obtaining import licenses. These measures were introduced with the goal of advancing the Argentine government's stated policies of re-industrialization, import substitution, and elimination of trade balance deficits. From a legal point of view, the least interesting feature of the dispute was the substantive compatibility of these measures with Article XI:1 GATT as they clearly constituted import restrictions. Identifying and classifying the measures involved, however, proved more challenging: based on vague policy guidelines, devoid of any legal basis, and consisting largely of wholly discretionary ad hoc action by the authorities, clouded in confidential obscurity, the measures escaped familiar categories and distinctions of WTO law. From an economic perspective, although Argentina's measures appear to have had no impact on its overall imports, they imposed large costs on foreign companies, as well as on Argentine importers and consumers.
Schepel, H. (2017). The Bank, the Bond and the Bail-Out: On the Legal Construction of Market Discipline in the Eurozone. Journal of Law and Society [Online] 44:79-98. Available at: http://dx.doi.org/10.1111/jols.12015.
The ‘logic of the market’, so holds the Court of Justice, is the standard of legality of financial assistance to indebted member states under EU law and, ultimately, the legal justification for strict conditionality and the imposition of austerity. This logic of the market, though, is different from actual market behaviour. Austerity, it turns out, is not the inevitable response to market pressures but a function of political substitutes for market discipline (Pringle) and technocratic truth seeking about the ‘correct’ price of debt (Gauweiler) which the Court has frozen into law. The perverse consequence of making the modalities of financial assistance dependent on the ‘logic of the market’ is, moreover, to render the assistance as ineffective and expensive as possible. ‘The logic of the market’ in the Court's case law is best seen as punitive and cynical politics masquerading as inept economics.
Schepel, H. (2013). Freedom of Contract in Free Movement Law: Balancing Rights and Principles in European Public and Private Law. European Review of Private Law 21:1211-1229.
Schepel, H. (2013). Case C-171/11 Fra.bo Spa v Deutsche Vereinigung des Gas- und Wasserfaches. European Review of Contract Law [Online] 9:186-192. Available at: http://dx.doi.org/10.1515/ercl-2013-0011.
The issue of the horizontal direct effect of the free movement provisions has the tendency to cause anxiety among lawyers who fear for the fate of private autonomy. The issue also evidently troubles the Court of Justice itself: every time it brings some clarity to one question, it seems to feel the need to introduce ambiguity in another. Its judgment of 12 July 2012 in Fra.bo is no exception: it, finally, settles the question whether, in certain circumstances, private parties can be caught by the free movement of goods as well as the free movement of persons and services. In defining those circumstances, however, the Court is particularly, and willfully, and disastrously, ambiguous.
Schepel, H. (2013). The New Approach to the New Approach: The Juridification of Harmonized Standards in EU Law. Maastricht Journal of European and Comparative Law 12:521-533.
In July 2012, the Court of Justice rendered judgment in Fra.bo, a case about the liability
of a German private standards body under the free movement of goods. In October 2012,
the European Parliament and Council adopted Regulation 1025/2012 on European
Standardization, the long awaited formal legal framework for the cooperation between the
Commission and the European Standards Organizations. It is very unlikely that either the
Court or the Union legislators were planning in these instances to affect a radical overhaul
of the New Approach to technical harmonization. And yet, that is exactly what they did.
The result of Fra.bo and the new Regulation is to subject European harmonized standards
to judicial challenge by any disgruntled manufacturer of products excluded or adversely
affected by the contents of such a standard.
To have each and every manufacturer or importer complain in each and every court of
the Union about each and every harmonized standard that adversely affects its position on
the market, however, is much more likely to lead to wholesale paralysis than it is to increase
the procedural integrity of European standardization.
Schepel, H. (2012). Constitutionalising the Market, Marketising the Constitution, and to Tell the Difference: On the Horizontal Application of the Free Movement Provisions in EU Law. European Law Journal [Online] 18:177-200. Available at: http://dx.doi.org/10.1111/j.1468-0386.2011.00593.x.
Ever since the Court's judgment in Walrave, there has been a concerted effort in caselaw and doctrine to limit the horizontal direct effect of free movement provisions to exceptional circumstances. This article suggests that this effort has always been incoherent, and is simply untenable after Viking and Laval. The implications are far reaching, especially in the sphere of the free movement of capital and corporate governance where the Court is well on its way of imposing a model of shareholder primacy on European company law. Full direct horizontal effect will also have important repercussions for private law and its ability to resolve conflicts between economic freedoms and fundamental rights. Given the nature of the free movement provisions, their horizontal effect will sometimes lead to a constitutionalised market and sometimes to a marketised constitution, without there being any principled way of distinguishing between the two. In that light, horizontal direct effect is very unlikely to enhance the effectiveness of internal market law—whichever model of the social market economy it is thought to embody—and is best abandoned.
Schepel, H. (2007). The European Brotherhood of Lawyers: The Reinvention of Legal Science in European Private Law. Law and Social Inquiry [Online] 32:183-199. Available at: http://www.blackwell-synergy.com/doi/abs/10.1111/j.1747-4469.2007.00055.x.
Against the historical backdrop of the codification debate in nineteenth century Germany, this article traces the reassertion of ‘legal science’ as an autonomous source of European legal integration in current legal and political discourse about the harmonization of European private law. The article argues that a grasp of widely shared ideas about the role and function of legal science and legal scientists is vital both towards an understanding of the extraordinary impact of the academic project of a European civil code on legal and political discourse in the Union in particular and towards furthering the theory of legal fields in general.
Schepel, H. (2005). Professorenrecht? Le champ du droit privé européen. Critique Internationale [Online] 2005:147-158. Available at: http://dx.doi.org/10.3917/crii.026.0147.
Schepel, H. (2004). The Enforcement of EC Law in Contractual Relations: Case Studies in How Not to ‘Constitutionalise’ Private Law’. European Review of Private Law [Online] 12:661-675. Available at: http://www.kluwerlawonline.com/toc.php?area=Journals&mode=bypub&level=6&values=Journals%7E%7EEuropean+Review+of+Private+Law%7EVolume+12+%282004%29%7EIssue+5.
In two very different contexts, the ECJ has effectively held that national private law is to be set aside where it impedes the effectiveness of certain EC law values. This article analyses these instances in order to try and make sense of the concept of the European ‘constitutionalization’ of private law. It argues, on the one hand, that EC law values should only be imposed upon national private law where they can be translated into subjective rights and, on the other, that the application of EC law provisions on private parties should be limited to cases where these can reasonably be said to carry responsibility for the implementation of those provisions. To enforce EC law in contractual relations beyond these limits not only leads to fragmentation and uncertainty but also, it is submitted, defeats the purpose of enhancing the effectiveness of EC law.
Schepel, H. (2002). Delegation of Regulatory Powers to Private Parties under EC-Competition Law: Towards a Procedural Public Interest Test. Common Market Law Review [Online] 39:31-51. Available at: http://www.kluwerlawonline.com/document.php?id=402741&type=toc&num=3&.
Schepel, H. (2000). Reconstructing Constitutionalization: Law and Politics in the European Court of Justice. Oxford Journal of Legal Studies [Online] 20:457-468. Available at: http://dx.doi.org/10.1093/ojls/20.3.457.
Schepel, H. and Wesseling, R. (1997). The Legal Community: Judges, Lawyers, Officials and Clerks in the Writing of Europe. European Law Journal [Online] 3:165-188. Available at: http://dx.doi.org/10.1111/1468-0386.00025.
This article argues that EU legal studies whould pay more attention to the legal discourse that sustains the conceptions of law and legal politics underlying European law. Drawing loosely on Bourdieu’s concept of ‘legal fields’, it offers a social and intellectual reconstruction of European legal thinking by way of empirical analysis of European legal writing. The article argues that the autonomy, technicality and specificity of European law should be seen at least in part as consequences of the social and professional structure of the community of EU laywers.
Wetherill, M. (2019). Judicial Interpretation and Nullum Crimen Sine Lege at the International Criminal Court: An Exercise in Utilizing ’Other Inhumane Acts’ under Crimes Against Humanity.
This PhD aims to explore how the International Criminal Court (ICC) can inject elements of judicial creativity when expansively interpreting the contents of the crimes under which it has jurisdiction without violating the principle of legality (more specifically nullum crimen sine lege). This has been of key interest to the scholarly community, especially in regard to the development of international criminal law. While prior international criminal tribunals have contributed a great deal to the expansion of the body of international criminal law, they were crafted with this specific task in mind. Their statutes and accompanying crimes were broad, encouraging them to creatively interpret their contents. This coupled with lack of reference to the principle of nullum crimen sine lege permitted them to adopt a generic definition of it which, in turn, enabled them to more easily define or include new crimes within their jurisdiction. The Rome Statute which binds the ICC, on the other hand, is a much more specific document, devised to reflect the stricter standards for interpretation that is often seen in civil law legal systems. It includes a detailed set of definitions of crimes, as well as explicit reference to the principle of nullum crimen sine lege. This indicates that the ICC will not be able to expansively interpret the Rome Statute in the same way as was done at other international criminal tribunals. The dichotomy between the ICC and other international criminal tribunals becomes clearer when considering the inclusion of 'other inhumane acts' under crimes against humanity. This residual clause was constructed with the intent to provide a means for adapting the Rome Statute for the inclusion of novel criminal acts. However, due to the fact that these acts have not been formally codified within the Rome Statute itself, the provision runs risk of violating the principle of nullum crimen sine lege (without established law an individual cannot be held criminally accountable for their acts). The objective of this research was then to identify how the ICC can creatively interpret its statute to include novel criminal acts under 'other inhumane acts' without violating the principle of nullum crimen sine lege. This PhD implements a novel method for judicial interpretation at the ICC by combining the concept of 'judicial creativity' as detailed by Shane Darcy with statutory restrictions placed within the Rome Statute and a contemporary understanding of nullum crimen sine lege. This is then applied to a number of acts which have not been codified within the Rome Statute, namely: forced marriage, 'ethnic cleansing' and terrorist acts, to identify how the principle impacts the ICC's ability to exert judicial discretion. This PhD finds that indeed, the court can actively utilize 'other inhumane acts' under crimes against humanity to include novel abhorrent acts without violating the principle of nullum crimen sine lege. The principle itself, when applied through the above methodology, acts as a sifting agent, syphoning out acts which are incompatible with the Statute and promoting judicial consistency. In doing so, it also aids in highlighting the key tenets of the acts being examined and forces the unique aspects of them to the forefront. As such, the principle serves a threefold purpose; it protects the accused from arbitrary application of the law, it aids in better representing victims through highlighting the unique aspects of the act committed and it provides others with a deeper understanding of the act being examined.
Slosser, J. (2018). On the Use of Cognitive Linguistics to Explore Legal Concepts: Judicial Interpretation of Privacy Law in the European Union.
The quest for how legal concepts generate and reproduce themselves and how those concepts are applied to specific cases is one of the most intractable and difficult to answer. This is even more true when old concepts are used to understand new realities. Traditional legal methods used to trace the power of precedent on courts still struggle to capture intricate, if not more subtle, conceptual change. This paper investigates the conceptual links throughout the precedent chain using the guiding hand of cognitive linguistics; namely, conceptual metaphor. Using computer-aided coding methodology to explore the use of metaphor to build conceptual structure concerning data control in EU law as a case study, this work analyses the recent 'Safe Harbor' case in the European Court of Justice and its chain of case citations to provide a proof of method to show the viability of using cognitive linguistics to explain notions of coherence, interpretation, conceptual change, and the power of precedent. The goal is to lead to a larger forecasting model of legal scholarship. It addresses the questions: how can metaphor analysis help clarify the transfer and interpretation of legal concepts throughout a chain of precedent and understand the concepts through which data privacy via traditional privacy are built as a case study? The scaffolding on which the law's abstract concepts are built is taken apart to reveal the underlying, non-abstract components of how ideas link together and affect conceptual transformation. This paper argues for a supplement to the traditional method of legal category building and holds out an extended arm from the world of cognitive linguists to the conceptual mores that is law.
Clini, C. (2017). Between a Rock of Global Security and a Hard Place of Domestic Growth: China’s Role in Climate Action As an Unsuspected Norm Maker.
Climate change has been a contentious issue in international politics, and academic and scientific communities. Its progressive move into the sphere of "high politics" has paralleled a structural shift in the global centres of power, especially towards the emerging economies of China, India, Brazil, and South Africa. Among them, Beijing is playing an increasingly pivotal economic, political, diplomatic, and military role.
In this context, as climate change has emerged as a major policy issue in national and international security affairs, an increasing number of countries have started to urge China to take on binding emission reduction commitments commensurate with its level of economic development. They have used international climate change negotiations (ICCN) to pressure Beijing and criticize its climate change policy as inadequate. While criticism has not died down entirely, critics have to contend now with China's apparently evolving behaviour.
Beijing's response to this international pressure has been twofold. On the one hand, it has anchored its negotiating position in ICCN to the principle of "common but differentiated responsibilities" (CBDR), thereby claiming its developing country identity and rights. On the other hand, China has progressively switched, at both domestic and international levels, from a predominantly reactive role of a recipient of criticism and policy demands to one of proactive engagement in environmental protection, climate change policies, and ICCN. Thereby, it has become an unavoidable player in global environmental governance.
This research investigates the driving forces behind China's increasing engagement in global environmental policy and, ultimately, Beijing's shift to a leading role in global environmental governance. It addresses the ostensibly puzzling change in China's behaviour from "norm taking" to "norm making". My argument is that China's unfolding engagement arises from a changing self-perception and identity shift from a recipient of international norms and expectations to a global norm entrepreneur and leader of the "global South" who also sees economic, technological, political, and diplomatic benefits in environmental and climate change reforms. Ultimately, I argue that Beijing's strategic pursuit of material gains and new reputation has been enabled and reinforced by its identity transformation.
To address the research question and substantiate the core argument, a threefold document, literature, and discourse-analysis approach has been employed. It has been used to investigate the evolution of China's environmental policy at domestic and international levels. To examine and substantiate the hypothesized norm-making evolution, this study has tied its dynamics to underlying shifts in China's collective social identities along a number of key and interconnected dimensions. Moreover, this course of analysis has been enabled by a critical use of International Relations (IR) theories. In analysing which IR theory could best explain China's evolving behaviour in global environmental governance, this research argues that limitations of realist and liberal theories call for a more sociological and identity-based contribution. Therefore, by drawing on a set of social constructivist ideas, this study shows how China has used diplomacy, clean energy research, development aid, and South-South Cooperation and its own understanding of soft power to secure broad political support within the global South for its climate change and development policy in relevant international forums. Thereby, China has progressively strengthened its normative power and, accordingly, framed the global debate on climate change as a subject of North-South politics.
By utilizing a social constructivist lens, this research makes a combined theoretical and empirical contribution to interpretive, constructivist, and sociological-organizational accounts of great power behaviour, power transition, and institutional participation - areas of study traditionally dominated by the 'neo-neo debate' in International Relations.
Sharei, M. (2016). Reconstructing Article 109(3) of the UN Charter: Towards Constitutionalisation of the United Nations and International Law.
By critically assessing the discourse, intent and teleology of the United Nations Charter when the text of the instrument was being finalised in 1945, this thesis argues that the majority of the world's states gathered at the UN Conference on International Organisation in San Francisco were aware of the fact that the core provisions of the treaty were being dictated by the five permanent members of the Security Council. Nevertheless, these states accepted the Charter in its current form in return for the promise of a more democratic UN in the future. This qualified acceptance was manifested in Article 109 of the Charter and, more specifically, in that article's paragraph 3, which provided for a facilitated Charter review in ten years' time.
Recognising that globalisation has outpaced fragmented state-centric global governance, and that world-wide threats in areas such as the violation of human rights, climate change, armed conflicts, and the use of conventional and nuclear weapons continue to exist, this thesis argues that elusive global governance and its instrument of international law are, in the absence of a global government, ill-equipped to deal effectively with these borderless problems.
Bridging the governmental gap, however, the UN Security Council, with its monopoly on the use of force in order to maintain "peace and security" under Chapter VII of the Charter, has demonstrated erratic and unplanned competencies. In fact, in the past 25 years, the Council has deployed its auto-interpreted expanded powers in the diverse areas of court-making, law-making, defining criminality and sanctioning non-state actors as criminals. It has even involved itself in the settlement of tort claims, awarding damages to individuals and corporations. The Council has, in effect, emerged at the apex of the legal order and has shown its capacity to legislate globally.
The founders, when drafting the Charter, were aware of the democratic and legitimacy deficiencies of the Council and, in order to redress them, and to apply the experiences learned during the UN's first years of operation, provided for a revisions process, including the holding of a Charter review conference, as enshrined in Article 109.
Why the UN has never in its 70-year history held such a review conference, and whether paragraph 3 of Article 109-neglected by researchers and politicians-is still in force, are at the core of this thesis's analysis. It will be argued that, if such a review conference is convened now, it would most likely trigger the process of UN constitutionalisation, and thus help transform the UN, so it can ultimately fulfil the objectives set out in the Charter's preamble-including guaranteeing and the protecting the fundamental rights of "we the peoples".
Heieck, J. (2016). Everything Within Their Power: The P5’s Duty to Prevent Genocide.
The corpus of the duty to prevent genocide was partially circumscribed for the first time in a court of law in the 2007 Bosnian Genocide case. In that case, the International Court of Justice adopted the due diligence standard to define the scope of the duty to prevent genocide. This standard provides that if a State has the capacity to effectively influence genocidal actors and the knowledge that there exists a serious risk that genocide may occur, then that State must do everything within its power - everything within the means available to it - to prevent the genocide from occurring. While the Court's holding in the Bosnian Genocide case was an important step in the normative development of the duty to prevent genocide, the Court nevertheless neglected to expound the full extent of the scope of the due diligence standard. For instance, the Court's holding did not address whom among the several States of the international order must act, and how such States once identified must act when the duty to prevent genocide is triggered. This dissertation attempts to do so.
First, it provides an overview of the obligations laid out it in the Genocide Convention, and expounds the significance of the due diligence standard in the prevention of genocide. Second, it identifies the central role to be played in genocide prevention by the five permanent members of the Security Council (the P5), which, as the 'great powers' of the international order, have the greatest capacity to not only effectively influence genocidal actors but also to remain informed about imminent or ongoing genocides. Third, it explores the manner in and the extent to which the P5 must act within and without the Security Council when faced with an imminent genocide, as dictated by the due diligence standard. Finally, it analyzes the standing of the duty to prevent genocide under customary international law and dispels, through a conflict of norms analysis, any doubts arising from possible conflicting obligations held by the P5 under the UN Charter, in favor of their ultimate duty to prevent the occurrence of genocidal acts.
Ultimately, the findings described in this dissertation have significant consequences for not only the duty to prevent genocide, but also the responsibility to protect doctrine, the responsibility not to veto initiative, and the prohibition of the use of force in general. They go beyond the soft spoken political commitments to protect national, ethnic, racial, or religious groups from what has been considered 'the crime of crimes', to flesh-out the self-standing legal value of the duty to prevent genocide, and the consequences thereof to the international community at large. As a result, Everything Within Their Power: The P5's Duty to Prevent Genocide will be of particular interest to scholars and students of international law and international relations.
Kalkan, E. (2015). Europeanisation of Change in Foreign Policy : Transformation of Turkish Foreign Policy in the EU Accession Process.
The aim of this research is to investigate the influence of Turkey’s European Union (EU) candidature on its foreign policy towards its non-EU neighbours, namely Iran and Syria. It argues that EU conditionality and adaptation pressure for the convergence and alignment of Turkey’s authoritarian political regime to the EU acquis communautaire have produced unintended outcomes in Turkey’s foreign policy towards its non-EU neighbours, in addition to the intended outcomes in Turkey’s domestic politics. To investigate these phenomena, this study poses the following questions: how, to what extent and in what direction has Turkey’s foreign policy changed towards its non-EU neighbours during the country’s EU candidature, and how has Turkey’s EU candidature to the EU played a role in this? This study utilises Europeanization, and the rational choice and historical versions of the new institutionalist theory as its theoretical framework. Interview and case study methods were employed to answer this research question, and triangulation and the creation of counterfactual scenarios were used to substantiate the validity of the study’s findings and interpretation.
The findings indicate that, first, Turkish foreign policy towards its non-EU neighbours has undergone a deep transformation from being merely security-oriented disengagement to politically and economically-oriented engagement. Secondly, although 1) due to the nature of the Common Security and Defence Policy (CSDP), the literature on Europeanisation in the field of foreign policy primarily addresses socialisation and experimental learning related to the impact of the EU on member and/or non-member states’ foreign policies, and 2) due to the nature of EU-Turkey relations, the literature on the impact of the EU on Turkey’s foreign policy mostly focus on Turkey’s foreign policy towards Turkey’s EU neighbours and primarily addresses EU conditionality and adaptation pressure in the field of foreign policy as it is related to the impact of the EU on Turkey’s foreign policy, the findings of this research show that, in fact, EU conditionality and adaptation pressure in the fields of democracy and the rule of law, and in the economic realm, has unintentionally left a very visible influence on Turkish foreign policy towards Turkey’s non-EU neighbours by: (a) changing the institutions, institutional structures and institutional power relations, (b) empowering the governmentand civil society against the military–bureaucratic elites in political decision making, (c) accomplishing political and economic stability and growth, (d) increasing respect for and protection of religious and minority rights, and transferring domestic religious and minority issues into the realm of normal politics, and thus (e) changing the institutions, interests, preferences and demands that are involved in foreign policy-making towards Turkey’s non-EU neighbours.