Max Planck Institute for Comparative Public Law and International Law

Abstract The Democratic Peace Theory has not been applied to Foreign Policy Analysis yet. Can we see changes in foreign policy after a country’s transition to democracy? Tunisia looks like an ideal case considering that—before its current backsliding—it had successfully transitioned from an authoritarian regime to a democracy. In our plausibility probe, we examine Tunisia’s foreign policy after the revolution of 2011 in three case studies, applying the Democratic Peace Theory.

Diante de uma sociedade hiper conectada e impulsionada por novas tecnologias como a internet, a inteligência artificial e a neurotecnologia, o artigo ambiciona avaliar o impacto das novas tecnologias em relação aos direitos humanos e o impacto dos direitos humanos em relação às novas tecnologias. Também discute de que forma o sistema interamericano pode contribuir para a proteção dos direitos humanos nesse contexto tecnológico, com destaque para seus princípios da centralidade da vítima, da prevenção e da precaução como deveres centrais do Estado e a necessidade de cooperação internacional entre Estados. Dessa forma, o artigo alerta para o crescente poder das corporações tecnológicas transnacionais, cuja atuação global desafia as estruturas jurídicas tradicionais, propondo ao constitucionalismo digital o desafio de proteger direitos e limitar esses poderes emergentes.

Abstract This chapter discusses Digital Constitutionalism from the perspective of normativities. A brief genealogy of the idea of constitutionalism traces the evolution of different variations of constitutionalism thinking. Continuing from this vantage point the chapter highlights and examines three persistent and perpetuating problems connected to constitutionalism thinking which are of pivotal relevance for Digital Constitutionalism thinking. First, the problem of petrifying effects of decontextualized conceptual transplants. Second, the problem of conflation of descriptive, conceptual, and analytical dimensions. And third, the problem of excluding effects with a view to norms generally and normative interrelations more specifically. Against this backdrop the chapter traces the roots of these problems back to a striking silence of scholars working in that field about their underlying assumptions about law and normativity. In light of the radical plurality of normativities which are making and governing the digital sphere, the chapter argues, this situation is not tenable anymore, if it ever was. Moving beyond narrow solutionism it shows that Digital Constitutionalism, understood as a field of studying meta-norms emerging within, in between and across different normativities and normative orders can offer more productive trajectories for future and more in-depth studies of power and (legitimate) authority in digital spaces.

Abstract This special issue invites us to assess the work of the International Law Commission (ILC) – past, present, and future – 75 years after its first session. To adequately assess the ILC and its work, an accurate understanding is necessary of precisely what its objectives are. According to its Statute, the ILC is tasked with the ‘progressive development and codification’ of international law. This article argues, however, that the ILC performs an essential yet underexplored third function, which goes beyond these two objectives: catalysing customary international lawmaking. In essence, preliminary proposals by the ILC often incite States to articulate their views on the law more pronouncedly, thereby providing novel evidence of state practice and opinio juris. The ILC thus indirectly generates the very evidence it is tasked with assessing. At the same time, through their submissions to the ILC, States help crystallize the status and clarify the content of rules of customary international law – they engage in lawmaking. The article combines a conceptual reflection on the ILC’s catalyst function with an examination of aspects of the ILC’s recent work on peremptory norms of general international law (jus cogens), including with regard to the identification and certain legal consequences of peremptory norms. This case study serves to evince the ILC’s function of catalysing customary international lawmaking and to refine the understanding of how this function unfolds. Thereby, the paper offers a novel perspective on how to assess the ILC’s contribution to public international law, beyond the twofold mandate of progressive development and codification.

The conception of fundamental rights as natural rights of human beings developed in European legal thinking mainly in the seventeenth and eighteenth centuries. John Locke, Jean-Jacques Rousseau, and also Immanuel Kant should be mentioned. But it was in the new world that the principles of fundamental human rights were first put into practice. A little more than ten years after the first American declarations, the "Declaration des droits de l'homme et du citoyen" was adopted in Paris; it remains part of French constitutional law today. But, unlike the development in the United States, the French guarantees could not be enforced by judges. The legislature was seen as the last arbiter of whether or not a specific regulation could be accepted as compatible with the bill of rights. As soon as the legislature had adopted a law, that law could not be challenged. In 1958 a very limited challenge became possible, through the Conseil Constitutionnel, but only before the formal promulgation of the law.

Gesetz über den Vertrieb ausländischer Investmentanteile und über die Besteuerung der Erträgeaus ausländischen Investmentanteilen,siehe nunmehr das Investmentgesetz (InvG) v. 15.12.2003, BGBl. I2676 AußStrG Außerstreitgesetz AVAG Anerkennungs-und Vollstreckungsausführungsgesetz AVR Archiv des Völkerrechts AWD Außenwirtschaftsdienst des Betriebsberaters AWG Außenwirtschaftsgesetz BAG Bundesarbeitsgericht BAGE Entscheidungen des Bundesarbeitsgerichts BAnz.B undesanzeiger BayObLG Bayerisches Oberstes Landesgericht BayObLGZE ntscheidungen des Bayerischen OberstenLandesgerichts in Zivilsachen, AmtlicheSammlung BB Der Betriebsberater BBGB undesbeamtengesetz BEG Bundesentschädigungsgesetz begr. begründet BerDGVR Berichteder DeutschenGesellschaft für Völkerrecht betr. betreffend BFH Bundesfinanzhof BfJ Bundesamtfür Justiz BG Bundesgericht BGBl. Bundesgesetzblatt BGE Entscheidungen des schweizerischen Bundesgerichts LXXVI Abkürzungsverzeichnis BGH Bundesgerichtshof BGHSt Entscheidungen des Bundesgerichtshofs in Strafsachen BGHZ Entscheidungen des Bundesgerichtshofs in Zivilsachen BinnSchGG esetz über das gerichtliche Verfahren in Binnenschifffahrtssachen BJM Bundesjustizministerium

The political question doctrine is a controversial admissibility requirement that intersects the rule of law and separation of powers. Based on recent ECtHR and ECJ judgments, this blog post highlights the need to evaluate the doctrine within a broader framework of legal accountability.

Abstract The law of finding lost movable property is not only a practically significant but also doctrinally fascinating topic, which has, however, only rarely been treated comparatively. Therefore, the article analyses to what extent a common core exists between a civil law (Germany), mixed (Scotland) and common law (England) legal system and whether the three jurisdictions achieve the purposes of the law of finding. In light of the scarcity of legal literature, the article is the first detailed treatment of the subject in Scots law. It does not only demonstrate that the common core between all three jurisdictions is remarkably small but also that German and Scots law are notably similar, while English law generally takes the opposite legal approach, indicating that Scots law is more related to civil than common law in this field. Moreover, in contrast to both Germany and Scotland, England does, because of the disadvantageous legal position of the finder, not accomplish the purposes of the law of finding; that is, neither (primarily) restoring possession of lost property to its owner nor (secondarily) freeing the finder from the burden of safekeeping found property for the owner. Consequently, legislative reform of English law is indicated.

Abstract What kind of connection should form the basis of nationality? For decades, the ‘genuine link’ has been a central, yet controversial concept in international and European scholarship and practice. The controversy revolves around a simple question: does nationality require a certain degree of belonging? Or put differently, can there be such bonds without belonging? Recently, the debate has been rekindled by the Maltese practice of ‘golden passports’. This contribution traces the state of the debate, anchors the genuine link requirement in international and Union law, develops its contours and conditions, and discusses possible objections. We argue that the genuine link requirement is the result of an interplay of several sources: international law, the prohibition of abuse of law, and the constitutional principles of solidarity and democracy. Together, they form the basis for the genuine link in European Union law.