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Treaty
Kinds of Treaty Terms modified by Treaty Selected AbstractsTeaching Treaties as (Un)Usual Narratives: Disrupting the Curricular CommonsenseCURRICULUM INQUIRY, Issue 5 2008JENNIFER A. TUPPER This article examines the importance of treaty education for students living in a province entirely ceded through treaty. Specifically, we ask and attempt to answer the questions "Why teach treaties?" and "What is the effect of teaching treaties?" We build on research that explores teachers' use of a treaty resource kit, commissioned by the Office of the Treaty Commissioner in Saskatchewan. Working with six classrooms representing a mix of rural, urban and First Nations settings, the research attempts to make sense of what students understand, know and feel about treaties, about First Nations peoples and about the relationships between First Nations and non,First Nations peoples in Saskatchewan. It is revealing that initially students are unable to make sense of their province through the lens of treaty given the commonsense story of settlement they learn through mandated curricula. We offer a critique of the curricular approach in Saskatchewan which separates social studies, history and native studies into discrete courses. Drawing on critical race theory, particularly Joyce King's notion of "dysconscious" racism, we deconstruct curriculum and its role in maintaining dominance and privilege. We use the term (un)usual narrative to describe the potential of treaty education to disrupt the commonsense. (Un)usual narratives operate as both productive and interrogative, helping students to see "new" stories, and make "new" sense of their province through the lens of treaty. [source] Citizenship of the European Union,A Legal AnalysisEUROPEAN LAW JOURNAL, Issue 5 2007Francis G. Jacobs This concept was considered by some to be embryonic in the original Community Treaties, but was first expressly incorporated into the Treaties by the Treaty on European Union, signed at Maastricht on 7 February 1992. In the case-law of the European Court of Justice, which has given citizenship a content going beyond the express Treaty provisions, the concept is closely related to other basic concepts, including free movement of persons, the prohibition of discrimination on grounds of nationality and the protection of fundamental rights. This article seeks to review the case-law, to disentangle citizenship from other related concepts, and to determine what added value citizenship has brought to the Treaties and what the potential and the proper limits of the concept might be. [source] Constitutions, Constitutionalism, and the European UnionEUROPEAN LAW JOURNAL, Issue 2 2001Paul Craig The institutional reforms of the EU, coupled with the EU Charter of Fundamental Rights, have fuelled the debate about a European Constitution. This paper begins by examining the nature of constitutions and constitutionalism. The focus then turns to the EU itself. It is argued that the Community has indeed been transformed into a constitutional legal order, and that the arguments to the contrary are not convincing. This does not however mean that the EU has, or should have, a European Constitution cognisable as such which draws together the constitutional articles of the Treaties, together with the constitutional principles articulated by the European Court of Justice. The difficulties with this strategy are examined in detail, and the conclusion is that we should not at present pursue this course. It would be better to draw on the valuable work done by the European University Institute in its recent study in order to simplify and consolidate the Treaties. [source] Beyond Constitutionalism: The Search for a European Political ImaginationEUROPEAN LAW JOURNAL, Issue 1 2001Ian Ward Two recent books, Joseph Weiler's The Constitution of Europe and Larry Siedentop's Democracy in Europe, seek to address one of the defining issues in contemporary European legal studies; the search for a European public philosophy. Both site their critiques within a particular jurisprudential tradition, the modernist; one that is bound up with anxieties about legitimacy and constitutionalism. This review article suggests that the ,new' Europe has been too easily distracted by the lures of constitutionalism, and more particularly by the temptations of Treaties. Public philosophies are not found in Treaty articles. Rather, a public philosophy is a state of mind, a product of the political imagination. And it is the absence of such an imagination which lies at the root of contemporary concerns regarding constitutionalism and legitimacy; the concerns which underpin Weiler's and Siedentop's books. A discussion of these books, in the first two parts of this article, is followed by a discussion of Godfried Wilhelm Leibniz's ,universal' jurisprudence. It is suggested that such a jurisprudence is better able to furnish a public philosophy for the ,new' Europe; just as, indeed, it was for the ,old' Europe. Moreover, such a jurisprudence is far more than a mere theory of laws and constitutions. Leibniz's jurisprudence requires that we think, not merely ,beyond' sovereignty, or even beyond democracy, but beyond constitutionalism. [source] Legal Basis and Scope of the Human Rights Clauses in EC Bilateral Agreements: Any Room for Positive Interpretation?EUROPEAN LAW JOURNAL, Issue 1 2001Elena Fierro It is well known nowadays that the European Community includes a so-called human rights clause into the framework agreements that it concludes with third countries. It is also widely recognised that, in virtue of the relevant provisions of the Vienna Convention on the Law of the Treaties, such a clause grants the Community a right to suspend the agreement should human rights and/or democratic principles be breached. The question to be explored in the present paper is whether, in the light of its legal basis, the clause fulfils a mere ,negative' or ,sanctioning' function or, by contrast, there is room for the pursuit of positive measures of active promotion of human rights,that is the granting of technical and financial aid. It is argued here that the clauses present an ideal starting point for the pursuit of a comprehensive human rights policy at the EU level. Such a policy should encompass positive measures in the first place, systematic dialogue in the second, and suspension or negative measures of less extent only as ultima ratio in particularly grave cases which cannot be addressed through ordinary (dialogue and aid) routes. [source] International Migration and State Sovereignty in an Integrating EuropeINTERNATIONAL MIGRATION, Issue 6 2001Andrew Geddes This article examines the development of migration policy competencies of the European Union (EU) since the 1990s. It pays particular attention to policy framework that developed after the Maastricht and Amsterdam Treaties entered into effect in 1993 and 1999 respectively. In order to chart these developments, the article focuses on five analytical themes that illustrate key trends in EU migration policy. Reasons for and implications of shift from "pillarization" in the Maastricht Treaty to "communitarization" in the Amsterdam Treaty. , Blurring of the distinction between external and internal security. , The role that supranational institutions such as the European Commission are playing (or trying to play) in policy development. , Debates about migrants' rights in an integrating Europe. , Links between migration and EU enlargement. It is argued that far from weakening EU member states or symbolizing some "loss of control", EU cooperation and integration have thus far helped member states consolidate and reassert their ability to regulate international migration through the use of new EU-level institutional venues. This raises legitimacy issues as the EU moves into politically sensitive policy areas. Although talk of "fortress Europe" is overblown, the EU is likely to face legitimacy challenges on both the "input" (democracy, openness and accountability of decision-making) and "output" (implementation and compliance) elements of decision-making. [source] Delegating Differences: Bilateral Investment Treaties and Bargaining Over Dispute Resolution ProvisionsINTERNATIONAL STUDIES QUARTERLY, Issue 1 2010Todd Allee Bilateral investment treaties (BITs) have become the dominant source of rules on foreign direct investment (FDI), yet these treaties vary significantly in at least one important respect: whether they allow investment disputes to be settled through the International Centre for the Settlement of Investment Disputes (ICSID). Through the compilation and careful coding of the text of nearly 1,500 treaties, we identify systematic variation in "legal delegation" to ICSID across BITs and explain this important variation by drawing upon a bargaining framework. Home governments prefer and typically obtain ICSID clauses in their BITs, particularly when internal forces push strongly for such provisions and when they have significantly greater bargaining power than the other signatory. Yet some home governments are less likely to insist upon ICSID clauses if they have historical or military ties with the other government. On the other hand, although host governments are often hostile toward ICSID clauses, particularly when sovereignty costs are high, they are more likely to consent to such clauses when they are heavily constrained by their dependence on the global economy. Our findings have significant implications for those interested in FDI, legalization, international institutions, and interstate bargaining. [source] Dynamics and Countervailing Pressures of Visa, Asylum and Immigration Policy Treaty Revision: Explaining Change and Stagnation from the Amsterdam IGC to the IGC of 2003,04*JCMS: JOURNAL OF COMMON MARKET STUDIES, Issue 3 2008ARNE NIEMANN The objective of this article is to account for the varying, and sometimes puzzling, outcomes of the past three Treaty revisions of EU/EC visa, asylum and immigration policy. The article focuses on decision rules and the institutional set-up of these policies, subjecting the results of the Intergovernmental Conference negotiations leading to the Treaties of Amsterdam and Nice and the Constitutional Treaty to causal analysis. The article maintains that four factors can explain the various Treaty outcomes: (i) functional pressures; (ii) the role of supranational institutions; (iii) socialization, deliberation and learning processes; and (iv) countervailing forces. [source] Intellectual Property Rights in Bilateral Investment Treaties and Access to Medicines: The Case of Latin AmericaTHE JOURNAL OF WORLD INTELLECTUAL PROPERTY, Issue 5 2006Rosa Castro Bernieri The link between intellectual property protection and access to medicines has been studied from different perspectives. After signing the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, most developing and least developed countries agreed to protect pharmaceutical products under the patent system. Beyond the criticisms of this system as an incentive mechanism to encourage private investment in research and development, it is widely acknowledged that a balance must exist between its benefits and costs. The patent system interaction with public health policies is twofold: providing incentives to develop new medicines, on the one hand, and increasing the prices of medicines, on the other. The TRIPS Agreement, the Doha Declaration and the subsequent Decision on Implementation of Paragraph 6 of the Doha Declaration all recognized this important trade-off. Different effects prevail in each interest group or country and negotiations of international intellectual property right (IPR) standards reflect this conflict. Nevertheless, the post-TRIPS scenario is full of new bilateral and regional agreements. The old bilateral investment treaties (BITS) are evolving towards new forms of all-encompassing arrangements that include intellectual property and liberalization of trade and services, apart from the classical rules for investment protection. This trend imposes a new landscape in IPR protection: one in which the above-described balance might be inclining towards one side. This article analyzes some legal, political and economic features of this new generation of BITS in Latin America. [source] Tradition, Treaties, and Trade: Qing Imperialism and Choson Korea, 1850,1910 , By Kirk W. LarsenAUSTRALIAN ECONOMIC HISTORY REVIEW, Issue 1 2010Niv Horesh No abstract is available for this article. [source] ,Concentric Circles' at the Periphery of the European UnionAUSTRALIAN JOURNAL OF POLITICS AND HISTORY, Issue 3 2000Karis Muller After World War II when the governments of several European states attempted to form supranational groupings, colonial obligations posed problems that persist to this day. The article traces immediate postwar history, outlining the present relationship between the EC institutions and what remain of member-state Empires, before proceeding to two case studies. The first concerns the ramifications of ,Euroland' in present or past dependencies after European Monetary Union. The second considers the role of European dependencies in military alliances and analyses how one of the founding Treaties was used in the mid-1990s after the discovery that it applied extra-territorially. The conclusion is that the external border of multi-speed Europe is even more variable than it might otherwise be because of the attachments some member states retain to colonial remnants. [source] The role of mercantilism in Anglo-Dutch political relations, 1650,74ECONOMIC HISTORY REVIEW, Issue 3 2010GIJS ROMMELSE The three Anglo-Dutch wars of the seventeenth century are traditionally seen as mercantile confrontations. This view has been challenged by political historians. Firstly, this article discusses the historiographic developments in this field. Secondly, it aims to explore the relationship between Anglo-Dutch mercantile competition and political and diplomatic relations in the period 1650 to 1674. It favours an integrated approach in which all these dimensions are taken into account. The article argues that the 1667 Peace Treaty of Breda was a major turning point in Anglo-Dutch relations after which mercantilism ceased to dominate Anglo-Dutch political relations. [source] Understanding the costs of an environmentally ,friendly' common agricultural policy for the European Union1,ENVIRONMENTAL POLICY AND GOVERNANCE, Issue 1 2001Pamela M. Barnes Part of the bedrock of the European Union's (EU's) Environmental Policy is the principle that those who pollute the environment should pay for the cost of remedying the damage they cause (the polluter pays principle) (Article 174 para. 2 TEC ex Article 130r TEC). In addition environmental objectives must be integrated into all the sectoral policies of the European Union (Article 6 TEC ex Article 3c TEC). The Common Agricultural Policy's (CAP's) role at the centre of the EU's sectoral policies would appear to make it an ideal focus for implementing Article 6 of the Treaty establishing the European Community (TEC). If integration of environmental protection can be achieved in this central area of the EU's activities then a major source of environmental degradation could be overcome. However, if these requirements are applied to European agriculture the sector will face a budgetary and financial crisis of even greater magnitude than at the present time. Recent reforms of the CAP have been designed with the objective of achieving an agricultural sector that is moving towards sustainability. As this article argues the political, social and economic significance of the agriculture sector is such that national governments of the EU have repeatedly shied away from adopting the measures, which could significantly reduce the pollution from the sector. The proposals for reform made by the Agricultural Commissioner, Franz Fischler, were amended by the meeting of the European Council that took place in Berlin on 24/25 March 1999. These amendments substantially weakened the ambitions of the strategy for development of the EU, the ,Agenda 2000' adopted in 1997, for a number of reasons (CEC, 1997). This article examines the reasons for the disappointments with the amended reforms and speculates on the possible future path that may be taken to improve matters. Copyright © 2001 John Wiley & Sons, Ltd and ERP Environment. [source] The Birth of the CAP Die Geburt der GAP La naissance de la PACEUROCHOICES, Issue 2 2008David R. Stead Summary The Birth of the CAP Fifty years ago, a Conference was held at Stresa which could be said to be the single event that most appropriately marks the birth of the CAP. Although five policy objectives had been written into the 1957 Treaty of Rome, these have been widely criticised for being vague and contradictory, and the Treaty contained very few stipulations on the specific policy instruments to be adopted. The Stresa Conference made important, but incomplete, progress towards finalising the policy framework. Most notably, it was generally agreed to avoid a level of price support that created unwanted commodity surpluses and inhibited structural adjustment. But these good intentions, and the positive ,European spirit' of the Conference, began to unravel as soon as the fraught decisions were taken on the details of unifying the protectionist agricultural policies of six different countries. In particular, the decision to fix the initial level of common cereals prices at the upper end of the national spread set an unsatisfactory reference point for other support prices; and an attempt to introduce a genuine common structural policy was rejected. At the turn of the 1970s, the CAP was clearly unbalanced and protectionist, but the Community's first fully-fledged common policy had been constructed. Il y a cinquante ans, s'est tenue à Stresa une Conférence qui pourrait être considérée comme l'évènement unique qui marque le mieux la naissance de la PAC. Bien que cinq objectifs pour l'action publique aient été inscrits dans le Traité de Rome en 1957, leur caractère imprécis et contradictoire a fait l'objet de nombreuses critiques et le Traité ne comportait que de très rares indications sur les instruments de politique à adopter. La Conférence de Stresa a permis de réaliser des progrès importants mais incomplets dans la définition du cadre de l'action publique. Intéressant à noter, il a généralement été convenu d'éviter un niveau de soutien des prix qui engendrerait des surplus excessifs de produits de base et empêcherait l'ajustement structurel. Mais ces bonnes intentions, ainsi que l'esprit "européen" positif de la Conférence, ont commencéà se dissoudre dès que des décisions problématiques furent prises sur le détail de l'uniformisation des politiques agricoles protectionnistes de six pays différents. En particulier, la décision consistant à fixer le niveau initial des prix communs des céréales à la borne supérieur du spectre des prix nationaux a constitué un point de référence peu satisfaisant pour les autres prix de soutien; et la tentative d'introduire une vraie politique commune des structures a avorté. Au tournant des années soixante dix, la PAC était nettement déséquilibrée et protectionniste, mais la première politique complètement commune de la Communautéétait en place. Vor 50 Jahren fand in Stresa eine Konferenz statt, bei welcher es sich wohl um das einzige Ereignis handelt, welches am zutreffendsten als Geburtstag der GAP betrachtet werden kann. Obgleich die politische Zielsetzung bereits 1957 in den Römischen Verträgen festgelegt worden war, standen diese wegen ihrer vagen Formulierung und Widersprüchlichkeit häufig im Kreuzfeuer der Kritik. Die Verträge enthielten nur sehr wenige konkrete Vereinbarungen im Hinblick auf die einzuführenden politischen Instrumente. Durch die Konferenz in Stresa konnten wichtige, jedoch unvollständige, Fortschritte bei der Ausarbeitung der politischen Rahmenbedingungen erzielt werden. Vor allem gab es den allgemeinen Konsens, dass es aufgrund der Preisstützung nicht zu unerwünschten Überschüssen bei Agrarprodukten und zu einer Hemmung der Strukturanpassungen kommen dürfe. Diese guten Absichten und die "europäische Gesinnung" der Konferenz schwanden jedoch, als die bedeutsamen Entscheidungen hinsichtlich der Einzelheiten für die Vereinheitlichung der protektionistischen Agrarpolitiken der sechs verschiedenen Länder getroffen wurden. Insbesondere die Entscheidung, das Anfangsniveau der gemeinsamen Preise für Getreide an der oberen Grenze der nationalen Preisspannen festzumachen, legte einen unbefriedigenden Referenzpunkt für die übrigen Stützpreise fest. Der Vorschlag, eine originär gemeinsame Strukturpolitik einzuführen, wurde abgelehnt. Um 1970 war die GAP eindeutig unausgewogen und protektionistisch; der Entwurf der ersten vollständigen gemeinsamen Politik der Gemeinschaft war jedoch abgeschlossen. [source] Five Danish referendums on the European Community and European Union: A critical assessment of the Franklin thesisEUROPEAN JOURNAL OF POLITICAL RESEARCH, Issue 6 2002Palle Svensson Denmark had five referendums in the period from 1972 to 1998 dealing with Danish membership in the European Community, the Single European Act, the Maastricht Treaty, the Edinburgh Agreement and the Amsterdam Treaty. Did the Danes really address these issues and involve themselves actively in the policy,making process on a vital issue or did they merely vote for or against the current government? The latter option represents the ,second order' elections argument advanced by Mark Franklin and others (see Franklin's article in this issue). If correct in this instance, it may have important and negative consequences for the potential of referendums to involve citizens more directly in the way they are governed. In this article, the Franklin thesis is assessed on the basis of data on voting behaviour in five Danish referendums on Europe and the democratic implications of these findings are discussed. [source] Learning from the Danish case: A comment on Palle Svensson's critique of the Franklin thesisEUROPEAN JOURNAL OF POLITICAL RESEARCH, Issue 6 2002Mark N. Franklin Palle Svensson in this issue of EJPR has objected to the characterisation of Danish voters made by Franklin and others who, in various publications, expounded the thesis that on issues of low salience, referendum votes tend to follow party lines. Svensson finds evidence that the Maastricht Treaty was not an issue of low salience to Danish voters in the ratification referendums conducted there, and gives other details of the evolution of public opinion regarding Europe that clarify the circumstances in which our thesis should apply. In the light of his arguments, this Comment presents a more nuanced version of the thesis that learns from the Danish case, and should be of greater utility than our earlier version in helping to interpret the role of government standing in referendum outcomes. [source] The Lisbon Judgment of the German Constitutional Court: A Court-Ordered Strengthening of the National Legislature in the EUEUROPEAN LAW JOURNAL, Issue 5 2010Philipp Kiiver This article discusses the judgment of the German Constitutional Court on the constitutionality of the Treaty of Lisbon, concentrating on the court's insistence on the prerogatives of the national legislature. The court's insistence on prior national legislative ratification for the application of the simplified treaty revision procedure and of similar de facto amendment procedures, including the flexibility clause, is conservative but understandable from the perspective of German constitutional law. The prescription of prior bicameral ratification for the application of the flexibility clause makes the German government procedurally one of the most tightly controlled in the EU, although this would not be unique, and the effect of such control will depend on the cleavage between the government and the national legislature, especially the German upper chamber. None of the procedures insisted upon by the court are incompatible with EU Treaty law. Whether the new procedures will actually enhance the democratic legitimacy of EU measures in German perception will depend on the degree to which political parties in the national legislature will publicly politicise their stance on the decisions in question, allowing voters to hold them to account. All the court can do is prescribe opportunities where such politicisation may take place. [source] Article 345 TFEU (ex Article 295 EC), Its Meanings and InterpretationsEUROPEAN LAW JOURNAL, Issue 3 2010The Treaties shall in no way prejudice the rules in Member States governing the system of property ownership. Research that has been conducted over the last decades shows that neither the scope of application nor the exact meaning of Article 345 TFEU (ex Article 295 EC) is clear from its wording. This article seeks to clarify its meaning through analysis of the drafting of the Article as well as the use of it by the EU's institutions and by the Member States. Article 345 TFEU, formerly Article 295 EC and, before that, Article 222 EEC, is an Article that limits, but not prevents, the application of the TFEU Treaty as a whole to the way in which rules of a Member State deal with the right of ownership of undertakings. The conclusion can be drawn that Article 345 TFEU only concerns the private or public ownership of undertakings, with which the Community shall not concern itself and which can thus be regulated by the Member States themselves. Most importantly, the Article does not concern the content of the right of ownership, nor the objects of a right of ownership. It does therefore not form an obstacle to the development of a European property law. [source] The Self-Referential European Polity, its Legal Context and Systemic Differentiation: Theoretical Reflections on the Emergence of the EU's Political and Legal AutopoiesisEUROPEAN LAW JOURNAL, Issue 4 2009Jiri Priban It highlights the role of statehood in those debates and suggests moving beyond the constraints of institutionalist and constructivist perspectives by adopting specific notions from the theory of autopoietic social systems. The following part describes the EU political system as self-referential, functionally differentiated from the system of European law, and internally differentiated between European institutions and Member State governments. Although the Union transgresses its nation-state segmentation, the notions of statehood and democratic legitimacy continue to inform legal and political semantics of the EU and specific responses to the Union's systemic tensions, such as the policy of differentiated integration legislated by the flexibility clauses. The democratic deficit of instrumental legitimation justified by outcomes, the most recent example of which is the Lisbon Treaty, subsequently reveals the level of EU functional differentiation and the impossibility of fostering the ultimate construction of a normatively integrated and culturally united European polity. It shows a much more profound social dynamics of differentiation at the level of emerging European society,dynamics which do not adopt the concept of the European polity as an encompassing metaphor of this society, but makes it part of self-referential and self-limiting semantics of the functionally differentiated European political system. [source] Legislation, Delegation and Implementation under the Treaty of Lisbon: Typology Meets RealityEUROPEAN LAW JOURNAL, Issue 4 2009Herwig Hofmann This reform, the first since the Treaty of Rome, will have an impact on some of the most contested topics of EU law, touching several central questions of a constitutional nature. This article critically analyses which potential effects and consequences the reform will have. It looks, inter alia, at the aspects of the shifting relation between EU institutions, the distribution of powers between the EU and its Member States, as well as the future of rule-making and implementation structures such as comitology and agencies. [source] Constitutionalism and Dissonances: Has Europe Paid Off Its Debt to Functionalism?EUROPEAN LAW JOURNAL, Issue 3 2009Marco Dani This impression seems confirmed by the recent Presidency Conclusions of the European Council which, although salvaging many important solutions contained in the Constitutional Treaty, explicitly sanction that ,the constitutional concept . . . is abandoned'. In the light of this context, what role could the constitutional scholarship play? How to make sense of a polity in which the claims of constitutionalism as a form of power are politically unappealing though legally plausible? This article tries to respond to these questions by reaffirming functionalism as a valid analytical and normative perspective in facing the current constitutional reality of European integration. The analytical value associated with functionalism is evidenced by testing against the current context of the EU legal framework the accounts for EU constitutionalism which postulate functional equivalence between the EU and the Member States. The normative potential of functionalism, then, is discussed by arguing that there may be a value worth preserving in a degree of functional discrepancy between the EU and state constitutionalism and, notably, that the transformative and civilising dividend inherent in functionalism could still be exploited, at least in certain areas of EU policy making. Finally, the article suggests that the difficulties in accounting for EU constitutionalism in the light of state-centred constitutional theory could be regarded as symptoms of European integration marking a moment in the theoretical evolution of constitutionalism. [source] The Unpatriotism of the Economic Constitution?EUROPEAN LAW JOURNAL, Issue 2 2008European Identity, Rights to Free Movement, their Impact on National The four single market freedoms can be used by the Court of Justice to strike down Member State laws which represent deeply held aspects of national cultural identity. The article examines whether the court does in fact act in this way and proceeds to argue that the issue of identity protection does not stop with the court. In those policy areas where the court is more interventionist, and its case-law is perceived as an identity threat, one is likely to find binding Treaty-based derogations. Where, in contrast, the effect of the court's case-law poses less of a threat, one is more likely to see non-binding declarations. The article examines a number of policy areas in which specific cultural derogations and declarations are to be found, including abortion, property acquisition, football and alcohol control. [source] Judicial Review of European Anti-Terrorism Measures,The Yusuf and Kadi Judgments of the Court of First InstanceEUROPEAN LAW JOURNAL, Issue 1 2008Christina Eckes It accepted that the Community uses its competence to adopt state sanctions in combination with Article 308 EC to freeze the assets of civil persons, including European citizens. The court also reduced its jurisdiction to a basic scrutiny of whether jus cogens was violated. The Court of First Instance's decisions can be criticised on various grounds. First, the application of these Articles is contrary to the wording of the Treaty and the case-law of the European Court of Justice (ECJ). Further, as a consequence of the Court of First Instance's judgments, decisions of the UN Sanctions Committee become the supreme law within the EU, provided they meet the requirements of jus cogens as defined by the Court of First Instance. In addition, the individual is deprived of all fundamental rights guaranteed under European law. [source] Citizenship of the European Union,A Legal AnalysisEUROPEAN LAW JOURNAL, Issue 5 2007Francis G. Jacobs This concept was considered by some to be embryonic in the original Community Treaties, but was first expressly incorporated into the Treaties by the Treaty on European Union, signed at Maastricht on 7 February 1992. In the case-law of the European Court of Justice, which has given citizenship a content going beyond the express Treaty provisions, the concept is closely related to other basic concepts, including free movement of persons, the prohibition of discrimination on grounds of nationality and the protection of fundamental rights. This article seeks to review the case-law, to disentangle citizenship from other related concepts, and to determine what added value citizenship has brought to the Treaties and what the potential and the proper limits of the concept might be. [source] The Cocoon of Power: Democratic Implications of Interinstitutional AgreementsEUROPEAN LAW JOURNAL, Issue 1 2007Sonja Puntscher Riekmann It starts from the premise that democratic rules as developed in the national context may be used as a yardstick for supranational governance as well. Thus, parliamentarisation of the Union is defined as an increase in democracy, although relating problems such as weak European party systems, low turnouts, and remoteness are not to be neglected. The article evaluates several case studies on IIAs in this vein and asks whether they strengthen the European Parliament or not, and why. It arrives at conclusions that allow for differentiation: empowerment of the European Parliament occurs in particular when authorisation to conclude an IIA stems from the Treaty or from the power that the European Parliament has in crucial fields such as the budget and is willing to use for this purpose. Success is, however, not guaranteed in every case, and is sometimes more symbolic than real. However, a democratic critique must also stress negative consequences of IIAs in terms of responsivity, accountability, and transparency. [source] Sub-Constitutional Engineering: Negotiation, Content, and Legal Value of Interinstitutional Agreements in the EUEUROPEAN LAW JOURNAL, Issue 2 2006Isabella Eiselt Concretely speaking, these roles range from (a) explicitly authorised specifications of Treaty provisions via (b) not explicitly authorised specifications of vague Treaty law to (c) pure political undertaking. Based on the distinction between the constitutional and the operational level of the political game, we challenge the assumption that IIAs usually strengthen the European Parliament. As our case study, the 1993 interrelated package of IIAs on democracy, transparency and subsidiarity, illustrates, the European Parliament is not the only institution that benefits from IIAs, especially if they lack a sufficiently precise Treaty basis. Furthermore, if Treaty provisions underlying IIAs are precise, they also tend to produce precise and thus legally relevant content. Conversely, if IIAs deal primarily with elusive concepts they are likely to be legally ambiguous or even irrelevant at all. [source] The Court of Justice and the Union CitizenEUROPEAN LAW JOURNAL, Issue 6 2005James D. Mather After all, it was Advocate General Lèger who stated that it was for the Court to ensure that its full scope was attained. The article focuses predominantly on three areas of study: Member State nationality law and citizenship, the effect and meaning of Article 18 EC, and the ever-evolving right to equal treatment for the Union citizen. It is fully updated in the light of recent case law, the Treaty establishing a Constitution for Europe, and the newly adopted Directive 2004/58 EC. [source] The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional TreatyEUROPEAN LAW JOURNAL, Issue 3 2005Mattias Kumm With the inclusion in the recently adopted Constitutional Treaty of a clause explicitly confirming the ,primacy of EU Law' appearances suggest that the EU is about to establish a characteristic of mature, vertically integrated, federal states such as the USA. This article argues that this view is mistaken. It develops a comprehensive jurisprudential framework for addressing constitutional conflicts, ,Constitutionalism Beyond the State' (CBC). CBS detaches the discussion of supremacy and constitutional conflict from a statist framework; provides a jurisprudential account that explains and justifies the highly differentiated, context-sensitive and dynamic set of conflict rules that national courts have in the past adopted; and provides the lacking theoretical basis for the more attractive, but undertheorised sui generis accounts of European constitutional practice that have recently gained ground in the literature. CBS provides a jurisprudentially grounded reconstructive account of why the issue of constitutional conflict is as rich and complicated in Europe as it is and why it is likely to remain so even if the Constitutional Treaty is ratified. The article then goes on to make concrete proposals addressed to national constitutional courts and the Court of Juctise respectively about how, in application of the developed approach, constitutional conflicts ought to be addressed doctrinally. It includes a proposal to read the new ,constitutional identity' clause as authorising Member States as a matter of EU Law to set aside EU Law on constitutional grounds under certain circumstances. [source] The Immigration and Asylum AgendaEUROPEAN LAW JOURNAL, Issue 2 2004Gisbert Brinkmann Immigration and asylum of third-country nationals was inserted into Title IV EC by the Treaty of Amsterdam of 1997/1999. The European Council of Tampere of October 1999 provided a substantive input. The proposals of the European Commission cover almost all aspects of immigration and asylum and, in line with the Tampere conclusions, are oriented at the status of EU citizens. A common European migration and asylum policy has been realised at an astonishing speed, though some core instruments have not yet been adopted. During the negotiations the proposals have been watered down and thus provide only relatively low standards, in particular as regards access to employment, which is an important requisite for the integration of migrants. [source] Horizontal Coherence and the External Competences of the European UnionEUROPEAN LAW JOURNAL, Issue 1 2004Pascal Gauttier First considered as a political requirement, its best expression is located in the Article 3 of the Treaty on the European Union. The practice of European foreign policy has demonstrated the importance of this requirement: the control of exports of dual-use goods as well as the adoption of sanctions, whether on the basis of Article 301 EC, or in application of international agreements with third states, have given the example of overlapping competences. Besides, this overlap has been reflected in the internal organisation of the institutions (allocation of portfolios in the European Commission, conflict between the Political Committee and the Committee of the Permanent Representatives in the Council of the EU). However, the answers to these problems have been far too timid: the adoption of an integrated approach (conflict prevention) as well as the institutional adaptations of the Treaty of Amsterdam do not compensate for the absence of a vision of the European foreign policy which would overcome the old cleavage between federalism and intergovernmentalism. Indeed, it seems to us that much more innovative solutions are needed, such as an evolution towards the binding character of the coherence requirement, which would pave the way to a coherent European foreign policy, comprising external relations and CFSP (including the defence dimension). [source] | ||||||||||||||||||||||||||||||||||||||||||||||