EU wins new powers at UN, transforming global body03.05.2011 @ 22:03 CET
EUOBSERVER / BRUSSELS - EU Council President Herman Van Rompuy will now be able to address the United Nations no differently from US President Barack Obama, Venezuela's Hugo Chavez or Russia's Dimitri Medvedev.
In order to win the vote, the EU had to agree to changes to the global organisation that transforms the UN from an assembly of nation states into a body that also offers representation rights to regional blocs as well, including potentially the African Union, the Arab League and the South American Union.
The EU on Tuesday was given almost all the rights in the global chamber that fully-fledged states enjoy after the General Assembly backed 180 to two a resolution giving the bloc, which until this week only maintained observer status at the UN, the union the right to speak, the right to make proposals and submit amendments, the right of reply, the right to raise points of order and the right to circulate documents.
There will also be additional seats put in the chamber for the EU's foreign policy chief, High Representative Catherine Ashton and her officials.
Ashton and her team have lobbied heavily over the last six months, according to her representatives, with a major offensive in the last 48 hours by the high representative herself in New York, to push through the changes after the EU was dealt a surprise defeat last September when other regional blocs voted against a similar resolution.
She declared herself "delighted" at the win, which, she said: "will in future enable EU representatives to present and promote the EU's positions in the UN."
Last year, two groups in the chamber resisted the move. The first, some of Brussels' closest allies in the world, Canada, New Zealand and Australia, consulted with each other and agreed to abstain on the original motion, according to one Commonwealth diplomat, as they were annoyed by the "presumption" of the EU, who had delivered the resolution for consideration the night before the vote.
After half a year of consultations, the Commonwealth allies appear to have had their procedural concerns dealt with.
But the second group, led by Caricom, the Carribean's regional integration bloc inspired by the EU, felt that it was unfair that Brussels should win additional rights but not themselves or other similar bodies, from the Gulf Co-operation Council to the Pacific Islands Forum.
In order to win over these refuseniks, the EU had to back an amendment to the resolution, put forward by Hungary - currently at the helm of the bloc's six-month rotating presidency - that gives these other blocs the same rights Brussels has won, should they ask for them.
"Following the request on behalf of a regional organisation which has observer status in the general assembly and whose member states have agreed arrangements that allow that organisation's representatives to speak on behalf of the organisation and its member states, then the general assembly may adopt modalities for the participation of that regional organisation's representatives," read the amendment.
http://euobserver.com/9/32262
Tuesday, May 3, 2011
EU wins new powers at UN, transforming global body
COMMUNITARIZATION OF THE EU THIRD PILLAR TODAY AND ACCORDING TO THE LISBON TREATY MICHAEL ŠVARC
COMMUNITARIZATION OF THE EU THIRD PILLAR TODAY
AND ACCORDING TO THE LISBON TREATY
http://www.law.muni.cz/sborniky/cofola2008/files/pdf/evropa/svarc_michael.pdf
MICHAEL ŠVARC, Právnická fakulta, Masarykova univerzita, Brno
Abstrakt
Práce se pokusí popsat a analyzovat současné projevy tzv. komunitarizace třetího pilíře EU,
kterou autor chápe jako proces, kdy oblast policejní a justiční spolupráce v trestních věcech
začíná být ovlivňována či dokonce podřizována komunitárním principům a mechanizmům
(zásada loajality, nepřímého účinku, efektivity, role Komise a ESD), a to při začlenění do
režimu mezivládní spolupráce. Ta má být překonána Lisabonskou smlouvou, která danou
oblast podřizuje zásadně komunitárnímu režimu (hlasování kvalifikovanou většinou ve
spolurozhodovaní proceduře s EP, podrobení se jurisdikci ESD, přímý účinek). Práce se
pokusí srovnat a analyzovat výhody a nevýhody obou režimů v dané oblasti. Podtrhne přitom
i specifika komunitárních mechanizmů v této oblasti dle Lisabonské smlouvy. Ambicí práce
je rovněž upozornit na možnosti, ale i meze a rizika rozvoje komunitárního režimu v oblasti
trestní politiky podle Lisabonské smlouvy.
Klíčová slova třetí pilíř, první pilíř, mezivládní spolupráce, komunitární právní řád, policejní a justiční spolupráce v trestních věcech, obecné zásady, svěření pravomocí, sdílené pravomoci,
subsidiarita, proporcionalita, přednost, přímý účinek, nepřímý účinek, odpovědnost za škodu
(Francovich), hlasování kvalifikovanou většinou, záchranná brzda, posílená spolupráce,
přeshraniční dvojí trestání (ne bis in idem), princip legality, Evropská Rada, Komise,
Evropský parlament, Rada, Soudní dvůr (ESD), národní parlamenty, žlutá, oranžová, červená
karta.
Abstract
This paper attempts to describe and analyze the current instances of the so-called
communitarization of the third pillar of the EU, which the author considers to be a process,
when the police and judicial cooperation in criminal matters starts to be influenced or even
subjected to the Community principles and mechanisms (such as the principle of loyal
cooperation, indirect effect, effectiveness, the role of the Commission and ECJ), while falling
into the intergovernmental framework. However, this framework should be displaced by the
Lisbon Treaty, which in principle subjects this area to the communitarian regime (voting by
the qualified majority in co-decision procedure with EP, jurisdiction of the ECJ, direct effect).
The paper will try to compare and analyze both advantages and disadvantages of both
(intergovernmental and communitarian) frameworks in the field of criminal matters. Specific
characteristics of communitarian mechanisms under the Lisbon Treaty will be emphasized as
well. The aim of the paper will be to show the possibilities and opportunities, but also limits
and risks of further developments of communitarized criminal policy under the Lisbon Treaty.
Key word rd pillar, first pillar, intergovernmental cooperation, Community legal order, police and
judicial cooperation in criminal matters, general principles, conferral of powers, shared
competence, subsidiarity, proportionality, supremacy (primacy), direct effect, indirect effect,
liability for damages (Francovich), qualified majority voting, emergency break, enhanced
cooperation, cross-border double jeopardy principle (ne bis in idem), substantive legality
principle, European Council, Commission, European Parliament, Council, Court of Justice
(ECJ), national parliaments, yellow, orange, red card.
Introduction
This paper will focus on developments and possible future prospects within the third pillar of
the European Union (EU). First, I will briefly sum up the “constitutional” foundations of the
third pillar, as regards both the role of the Union institutions and legal effects of the measures
adopted under this framework as provided for in the Treaty on European Union (TEU),
especially its Title VI, which governs police and judicial cooperation in criminal matters.
Then I will show, how this area of criminal matters has been communitarized, especially by
the case-law of the Court of Justice (ECJ). Turning to the new settlement of this area
according to the Lisbon Treaty, especially Title V, chapters 1, 4 a 5 of the Treaty on the
Functioning of the European Union (TFEU),1 I will try to describe and analyze the most
important novelties, which the new framework introduces. In principle all classical
Community rules and principles should apply within the specified field of criminal matters.
However, important specific characteristics applicable to this area (such as maintaining
1 TFEU will replace the current Treaty establishing the European Community (TEC). The area of police and judicial cooperation will be transfered from TEU to the TFEU and included in Title V, with the heading “Area of freedom, security and justice,” which will contain also chapters on general provisions, policies on border checks, asylum, immigration and judicial cooperation in civil matters. unanimity in certain matters, emergency break and enhanced cooperation) will be emphasized as well. Finally the paper will on the basis of attained experience and concrete examples attempt to point to the possible advantages, respectively disadvantages and risks, which the new framework may bring in contrast to the current state of affairs in the explored area of criminal matters.
The “constitutional” foundations of the third pillar compared to the first pillar
The third pillar, established by the Maastricht Treaty and limited to police and judicial
cooperation in criminal matters by the Amsterdam Treaty, forms basically a distinct
framework of intergovernmental cooperation, which is to be differentiated from the
Community legal order, resting on the TEC and developed by the ECJ case-law2. First and
foremost, the nature of the third pillar as laid down especially in the Title VI of the TEU
resembles more the classical international regime (where, it seems, there is no room for a
simple hierarchy or subordination, but the consent of each and every state is predominant)
rather than the supranational one, which was developed under the first pillar, patterned by the
primacy and direct applicability (and effectiveness) of adopted rules towards individual
member states (even when outvoted) and their citizens. From the institutional point of view,
similarly, the institutions such as the European Commission (Commission), European
Parliament (EP) and the ECJ were not granted such broad powers, as is the case in the first
pillar. By contrast, the Council of Ministers (the Council), which represents the individual
member states, was given great external and legislative powers, including the veto right for
each and single minister thanks to the unanimity voting, introduced as a rule for decisionmaking
in this sensitive and with the sovereignty of the member states´ closely connected area
of police and judicial cooperation in criminal matters. Moreover, the intergovernmental
character of the third pillar seems to be strengthened by the legislative initiative of each
member state (sharing this right with the Commission) and mainly by the weakening of both
2 See these crucial judgements of the ECJ: C- 26/62 Van Gend en Loos, 5.2.1963, (direct effect) a C- 6/64 Costa v. ENEL, 15.7.1964 (supremacy or primacy of EC law); and further elaboration on this as regards both direct and indirect effect: C-152/84 Marshall, 26.2.1986, C-14/83 Von Colson a Kamman, 10.4.1984, C-106/89 Marleasing, 13.11.1990, C-194/94CIA Security v. Securitel, 30.4.1996, and primacy of EC law, or even the emerging concept of pre-emption: C-11/70 Internationale Handelsgesselschaft, 17.12.1970; C-35/76, resp. C-
106/77 Simmenthal I, II, 15.12.1976, resp. 9.3.1978; C-10-22/97 Ministero delle Finanze v. IN.CO.GE´90 Srl, 22.10.1998; C-148/78 Ratti, 5.4.1979; C- 31/78 Bussone, 30.11.1978; C-11/92 Gallaher, 22.6.1993; including liability for damages for infringement of Community law: C-6 & 9/90 Francovich, 19.11.1991; C-46/93 Brasserie/Factortame, 15.3.1996; C-178/94 and others point cases Dillenkofer, 8.10.1996; C-224/01 Köbler, 30.9.2003, which might be read also in conjunction with the judgement C-453/00 Kühne & Heitz, 13.1.2004; summarized In Craig, P., de Búrca, G. EU Law – Text, Cases and Materials. New York: Oxford University Press, 2003, s.178- 228; 257-315. the EP, limited only to consultation within the legislative process, and the Commission, which is not allowed to pursue infringement procedure as is the case under the first pillar Community legal order. Also the limited jurisdiction of the ECJ, as compared to its role under the first pillar, is of great significance, when assessing the specific nature of the third pillar
framework. Preliminary rulings, seemingly limited in its subject, are not obligatory at all at
any stage and annulment actions are limited only to privileged applicants. Infringement
procedure, as mentioned above, does not apply at all. As a result, the member states do not
run any risk of being financially penalized by the ECJ, when infringing third pillar union law.
As regards the legal effects of the measures adopted under the third pillar, the TEU explicitly
abolishes direct effect of the decision and framework decision. The latter resembles by
definition and aim in approximating national laws directive under the first pillar, however,
without possessing a feature of direct effect loses much of its strength, because the particular
provisions of the framework decision cannot be then directly invoked by individuals before
the national authorities, and the courts particularly, with a view setting aside, if necessary,
contrary national rule and applying directly effective one (in upwards vertical relations at
least).
Although it might seem from all above mentioned that the intergovernmental framework of
the third pillar absolutely prevails,3 the next chapter will show, how especially the ECJ is
ready to make use of some communitarian aspects involved in that framework and extend
them to the maximum, while borrowing the concepts from the first pillar as well, in order to
promote more uniform application of the union law in this field and guarantee at least some
kind of judicial protection. It will be, however, also pointed to the extension of the community
competence over criminal matters by the ECJ, revealing the potential of the first pillar for the
purposes of criminal regulation.
Third pillar under attack – creeping communitarization
In general
In spite of the fact of intergovernmental characteristics of the third pillar, as briefly sketched
above, I will try to illustrate, how this pillar has been communitarized, i.e. influenced by and
subjected to the Community principles, rules and mechanisms. 3 However, there is a regular „bridge,“ enabling to transfer the respective areas of criminal matters to the first pillar entailed in Article 42 TEU. The cumbersome procedure which subjects such a unanimous decision of the
Council to the constitutional procedures of member states makes this provision, however, practically ineffective.
Among the Union institutions it was mainly the ECJ which heavily supported this process by
taking full advantage of its jurisdiction and pointing to the broad tasks and objectives of the
Union and the necessity to ensure both the consistency within the Union framework as a
whole and the effectiveness of the measures adopted within the third pillar particularly (see
below, Pupino, Segi, EAW judgements of the ECJ). ECJ also promoted uniform application of
crucial third pillar rules and principles, such as the prohibition of cross-border double
jeopardy (see below, sketched case-law of the ECJ on ne bis in idem).
Furthermore, the potential of expansive growth of the communitarian control over criminal
matters was also supported by the ECJ case-law on the possibility of implicit competence
over criminal matters within the first pillar under certain conditions (see below,
Environmental crimes and Ship source pollution judgements of the ECJ).
Besides that, the process of communitarization was also boosted by the practice developed
within the Council, where special negotiation techniques, political pressure, package deals
seem to undermine de iure unanimity voting rule as well.4
Moreover, the active role of the Commission, coming up with legislative proposals, which
seem not always to observe both the union and Community fundamental principles such as
the subsidiarity principle5 or even fundamental rights6, contributed also a lot to the
communitarization of this area.
The role of the ECJ in communitarization of the third pillar
In my view Pupino represents a leading case in this area. The ECJ was asked by the Italian
court within the preliminary ruling procedure under article 35 TEU to give an interpretative
ruling on a specific provision of the framework decision on the protection of victims, which
related to the special criminal procedure in respect of vulnerable victims, respectively
application of the procedural benefits towards maltreated children. After declaring its
jurisdiction and its scope under the Article 46(b) TEU, in conj. with Article 35 TEU, the ECJ
stressed the binding nature of framework decisions, inspired largely by the Article 234 TEC.
Due to the fact that the TEU in this respect expressly excludes direct effect, the ECJ could
4 See, more elaborated on this matter: Čakrt, F.: Nástin komunitarizace v rámci III. pilíře. Trestněprávní revue, 2007, č. 1, s. 4 – 12.
5 See, ibid p. 7 as regards the critical reflection on this as exemplified by the Green book on the conflicts of
jurisdictions and the principle ne bis in idem in criminal proceedings, KOM(2005) 696
6 See, for instance the so-called data retention directive, where the protection of the fundamentals principle of protection of personal data might be interfered with disproportionately
only promote the effectiveness of the framework decisions by the so-called indirect effect,
elaborated within the first pillar. And indeed, it did so, stating that the binding character of the
framework decisions places on national authorities, and particularly national courts, an
obligation to interpret national law in conformity7.
Moreover, the ECJ added, that while having the jurisdiction in preliminary ruling procedure,
this would be deprived of most of its useful effect, if individuals were not entitled to invoke
framework decisions in order to obtain a confirming interpretation of national law before the
courts of the member states8. Furthermore, the ECJ, without any reference in the text of the
TEU (unlike Article 10 TEC), went further to pronounce the applicability of the principle of
loyal cooperation9 in this field as well, pointing to the aim of the Union to create an ever
closer Union among the peoples of Europe and necessity to ensure that the Union may
effectively fulfil its tasks.10 The applicability of the principle of loyal cooperation within the
third pillar gave rise to the debate on possible far-reaching implications this might bring. As
we know, from the principle at stake important Community principles, rules, mechanisms
were inferred, such as the principle of supremacy (primacy, precedence), the Francovich
principle of liability for damages, the twin principles of effectiveness and equivalence, just to
name the most important ones. And some authors indeed suggest the possible application of at
least some of them, such as Francovich principle of liability for damages and principles of
effectiveness and equivalence.11 Finally, Pupino ruling itself, while setting limits to the
application of the so-called indirect effect (cannot be contra legem and conflict the principles
7 C-105/03, „Pupino,“ 16. 6. 2005, para 34.
8 C-105/03, „Pupino,“ 16. 6. 2005, para 38.
9 However, S. Peers notices that the ECJ makes, with exception of requirement to take measures to ensure fulfilment of obligations, no reference to other aspects of the principle of loyal cooperation, see Peers, S.: Salvation outside the church: Judicial protection in the third pillar after the Pupino and Segi judgments. Common Market Law Review, 2007, č. 44, p. 916, 917.
10 C-105/03, „Pupino,“ 16. 6. 2005, paras 41, 42: „… treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe and that the task of the Union, which is founded on the European Communities, supplemented by the policies and forms of cooperation established by that treaty, shall be to organise, in a manner demonstrating consistency and solidarity, relations between the Member States and between their peoples…. It would be difficult for the Union to carry out its task effectively if the principle of loyal cooperation, requiring in particular that Member States take all appropriate measures, whether general or
particular, to ensure fulfilment of their obligations under European Union law, were not also binding in the area of police and judicial cooperation in criminal matters, which is moreover entirely based on cooperation between the Member States and the institutions…“
11 See, for instance Spaventa, E.: Opening Pandora´s Box: Some reflections on the Constitutional Effects of the Decision in Pupino. European Constitutional Law Review, 2007, č. 3, s. 18 – 22 or Peers, S.: Salvation outside the church: Judicial protection in the third pillar after the Pupino and Segi judgments. Common Market Law Review, 2007, č. 44, p. 921 – 924, where the author comes up with practical examples, for instance that the wrongful detention, prosecution and conviction connected to the double leopardy rules should be compensated in
accordance with the principles established as regards Community damages liability.
of legal certainty and non-retroactivity or establish and aggravate criminal liability)12, in my
view, implicitly suggests that general principles of Community law, or at least some of them,
may and should be applied within the third pillar, as well. I agree with S. Peers that the
general principles of Community law13 (such as protection of human rights, legal certainty
and of the protection of legitimate expectations, non-retroactivity, principle of equality and
non-discrimination, principle of the right to defence and the rule against double jeopardy;
principles governing the exercise of community powers such as principle of conferred powers,
subsidiarity and proportionality) should apply in their entirety here as well.14 However, the
ECJ when ruling on the observance of these principles should, in my view, pay due respect to
the principles of subsidiarity and the primary (or largely exclusive) responsibility of member
states for maintaining public order and security on their territory and observing their human
rights obligations under the European Convention for the protection of human rights and
fundamental freedoms (ECHR), from which the ECJ itself should in no case depart as well15.
Similarly, the ECJ, while interpreting, should not encroach upon legislative domain of the
Council as well. The ECJ in my opinion should be very careful and restraint in using too
much extensive interpretation which might run counter words and intent of drafters and
legislators. I admit, there might be instances, where the court must decide on the merits and
deliver the justice to individuals, even (if necessary and well justified) by going beyond the
text and finding just solutions by systematic a teleological interpretation. However, in general
and as a rule, the ECJ should, in my view, especially in this sensitive field of criminal affairs,
be very cautious when trying to unify some of the controversial concepts, beyond the adopted
legislative consensus reached. In this regard, the unifying case-law of the ECJ on the
principle against double jeopardy (ne bis in idem)16 seem to me (at least as regards some
judgements) very ambitious and too extensive as well, and in some instances undermining
criminal justice systems of individual member states.17 I am hinting here at some kind of
12 C-105/03, „Pupino,“ 16. 6. 2005, paras 44, 45.
13 For a systematic categorization of Community general principles see, Týč, V.: Působení práva Evropské unie ve sféře českého právního řádu In: Evropský kontext vývoje českého práva po roce 2004: sborník z workshopu konaného na Právnické fakultě MU v Brně dne 26.9.2006. 1. vyd. Brno: Masarykova univerzita, 2006, s. 22-27.
14 See, Peers, S.: Salvation outside the church: Judicial protection in the third pillar after the Pupino and Segi
judgments. Common Market Law Review, 2007, č. 44, p. 926 – 928.
15 Compare, Article 52(3) of the Charter of fundamentals rights of the Union, which shall be legally binding
according to the Article 6(1) of the TEU, introduced by the Lisabon Treaty.
16 See judgements: ; C-187/01, C-385/01, Gozütok & Brügge, 11.2.2003, C-288/05, Kretzinger, 18.7.2007,; C-
367/05, Kraajjenbrink, 18.7. 2007; C-150/05, Van Straaten, 28.9.2006; C-467/04, Gasparini, 28.9.2006; C-
436/04, Van Esbroeck, 9.3. 2006; C-469/03, Miraglia, 10.3.2006.
17 For a brilliant reflection see, Komárek, J.: „Tentýž čin“ v prostoru svobody, bezpečnosti a práva.
Jurisprudence, 2006, č. 3, s. 51 – 57.
hidden communitarian mechanism, which might be activated through preliminary rulings, and
which attributes the ECJ the role of de facto legislator, when interpreting the very broad and
vague terms, adopted within the Council.
Finally, the ECJ affected heavily the criminal field, which was generally perceived to be the
domain of member states or their cooperation within the third pillar,18 by two its famous
rulings on Environmental crimes19 and Ship source pollution20. The ECJ delivered its
judgement on Environmental crimes upon the respective action brought by the Commission,
which asserted that the Council had encroached upon its competences under the TEC by
adopting framework decision on the protection of environment through criminal law under the
third pillar. The ECJ took the same view and annulled the challenged framework decision on
grounds that it indeed encroached on the powers which Article 175 of the TEC in the area of
environment confers on the Community21. As a starting point the ECJ stressed that Article 47
of the TEU provides that nothing in the TEU is to affect TEC.22 Then the ECJ examined both
the aim and content of the challenged framework decision and realized that indeed the main
purpose of the adopted measure was the protection of the environment. As regards implied
competence to criminal regulation within this field, the ECJ firstly stated that as a general
rule, neither criminal law nor the rules of criminal procedure fall within the Community’s
competence.23 However, the ECJ did not stop here, but went further on to hold that the
Community legislature is not prevented to adopt measures which relate to the criminal law of
the member states 1) which it considers necessary in order to ensure that the rules which it
lays down (on environmental protection) are fully effective and 2) where the application of
effective, proportionate and dissuasive criminal penalties by the competent national
authorities is an essential measure (for combating serious offences).24
This controversial judgement gave of course a strong weapon in the hands of Commission,
which interpreted its implications very extensively both as regards the fields of Community
18 However, also the previous case-law of the ECJ show form the 1980s, that even at that times the field of
criminal policy was not completely immune from the operation of Community law, especially when the principle
of effectiveness and equivalence or non-discrimination were at stake (see, judgement 68/88, „Greek Maize,“ 21.
9. 1989 or judgement 186/87, „Cowan,“ 2. 2. 1989) or when disproportionate (criminal) restrictions on freedom
of movement arose (see, judgement C-118/75, “Watson and Belmann,” 14. 7. 1976 or judgement C-265/88,
“Messner,” 12. 12. 1989), See very brilliant summary in: Kmec, J.: Evropské trestní právo. Mechanismy
europeizace trestního práva a vytváření skutečného evropského trestního práva, Praha: C.H.Beck, 2006, s. 230.
19 C-176/03, „Environmental crimes,“ 13. 9. 2005
20 C-440/05, „Ship source pollution,“ 23. 10. 2007
21 C-176/03, „Environmental crimes,“ 13. 9. 2005, para 53.
22 Ibid. at para 38.
23 Ibid. at para 47.
24 Ibid. at para 48.
policies to which it may be applied and the intensity of the criminal regulation itself25 and as
A. Dawes and O. Lynskey in their brilliant reflection of this case put it – some of its
conclusions drawn (such as the power to decide under the first pillar policies on the choice of
the criminal penalties to be applied) were even contradictory to the judgement itself26.
The second judgement of the ECJ on Ship source pollution27 was expected with hope that it
will bring answers to the open questions which the ruling on Environmental crimes remained
unresolved. However, the ECJ judgement seems to be rather disappointing in this respect. The
answer to the question, whether the criminal competence under the first pillar should be
derived from the necessity to ensure the effectiveness of the (crucial) Community policies, as
the Advocate General Mazák suggested in his opinion28, or is limited solely to the
environmental policy, is somehow ambiguous. The ECJ confirmed that the challenged
measure could have been validly adopted under the first pillar within the specific competence
under the transport policy, however the ECJ emphasized the link with environmental
protection in this case as well.29 Fortunately, at least another issue on the intensity of criminal
legislation within the first pillar was clearly resolved, by stating that under the first pillar the
Community does not possess the power to impose the type and level of criminal penalties.30 It
should therefore limit itself to imposing effective, proportionate and dissuasive criminal
penalties and leave it up to the member states to specify them in their respective criminal
systems.31
To sum up the case-law of the ECJ in the third pillar it may be concluded that many
Community principles, rules, mechanisms and concepts (such as indirect effect, principle of
loyal cooperation, principle of liability for damages, right to defence, principle against double
jeopardy and general principles including human rights and legal certainty) developed under
the first pillar were (some of them possibly) transposed within the third pillar by the creative
case-law of the ECJ. The magic word of effectiveness played the most important role in its
case-law as introduced in Pupino and confirmed in later ECJ judgements (besides those
25 See doc. COM 2005 (583), dated 23.11.2005, Brussels, Communication from the Commission to the European
Parliament and the Council, particularly para 10, where it states that the member states freedom to choose the
penalties they apply may be limited by the Community legislature, if the effectiveness of community law so
requires.
26 See, Dawes, A., Lynskey, O.: The ever-longer arm of EC law: The extension of Community comeptence into
the field of criminal law. Common Market Law Review, 2008, č. 45, s. 138, 139.
27 C-440/05, „Ship source pollution,“ 23. 10. 2007
28 Opinion of the Advocate General Mazák C-440/05, „Ship source pollution,“ 23. 10. 2007, paras 88 – 102,
especially 99.
29 C-440/05, „Ship source pollution,“ 23. 10. 2007, paras 66, 67, 69.
30 Ibid. para 70
31 See, brilliant reasoning in this respect in the Opinion of the Advocate General Mazák C-440/05, „Ship source
pollution,“ 23. 10. 2007, paras 106, 107, 108 and further.
mentioned above Segi32 and European arrest warrant33 judgement of the ECJ may be added).
Third pillar of the Union temple started to be progressively rebuilt by the ECJ. And the
Lisbon Treaty accomplished this work in high style.
Third pillar “lisbonised” – communitarization with some specific characteristics
accomplished
If the Lisbon Treaty is to be ratified by all of the member states and enters into force, then the
third pillar will diminish and the institutional balance and functioning of the area of police and
judicial cooperation in criminal matters will be largely transformed. This area will be
“lisbonized,” i.e. will be governed mostly and largely by supranational principles, rules and
mechanisms, which are today called the Community ones.
The role of the institutional actors will change significantly. The Commission, the EP, the
ECJ as well as national parliaments (NPs) will gain a lot of new power in this domain. By
contrast, individual member states will lose their right to legislative initiative (only ¼ of them
together will retain this right – see Article 76 TFEU) and more importantly, in principle, also
the veto power in the decision making process, which will be newly subject to co-decision
with the EP. Furthermore, member states will be subject to infringement procedure, where
both the Commission and the ECJ will exercise their prerogatives (including supervising and
penalizing ones) in order to ensure that the union law is observed.34 The ECJ will be attributed
by the full jurisdiction over this field at the same time (only with one exception: the ECJ will
have no jurisdiction to review the validity or proportionality of operations carried out by the
police or other law-enforcement services with regard to the maintenance of law and order and
the safeguarding of internal security35). Moreover, the ECJ may develop its human rights
case-law, thanks to the binding force of the Charter of Fundamental Rights of the Union (see,
Article 6 (1) TEU in conj. with the Charter itself). Especially in the field of criminal matters
such a case-law may play a very important role. It will be seen how the relationship with
ECHR Strasbourg Court but also national constitutional courts will develop in this respect.
With the new Lisbon Treaty the Commission may turn to the real “engine” of the
development of “European criminal area”. Its strength and influence derives not only from its
32 C-355/04 P, „Segi,“ 27. 2. 2007
33 C-303/05, „European arrest warrant,“ (Advocaten voor de Wereld VZW), 3. 5. 2007
34 However, according to the Protocol (No 36) on Transitional Provisions the infringement procedures and the
new ECJ jurisdiction will apply (at the latest) after 5 years from the entry into force of the Lisabon Treaty, if the
relevant measures will not be amended before.
35 Article 276 of the TFEU
legislative monopoly (however, as mentioned above it will be shared with ¼ of members
states), but mainly, in my view, from a firm and very broad legal bases for its activities in this
field, as regards legislation in the field of substantive and procedural criminal law and
cooperation and assistance in criminal matters (but also as regards operational and nonoperational
police cooperation). The concrete competences within these fields are defined
with a certain precision. Compared to the current regulation in articles 29, 31, 34 of the TEU,
they are more elaborated but much more extensive as well. They fall within the area of the
so-called shared competence (see, Article 4(2)(j) TFEU), however, the modified version of
pre-emption should apply in my view in this area (see, Article 2(2), read in conj. with Article
2(6) TFEU), because only minimum rules on certain aspects of procedural and substantive
criminal law are allowed to be adopted (see, Article 82 (2) and 83 (1) TFEU), other aspects
may be added upon the unanimous decision of the Council and consent of the EP. It should
be, however, kept in mind that the substantive criminal competence is supposed to be
potentially expanded also within the harmonized fields, where even the cross-border element
is missing (see, Article 83 (2) TFEU). This competence reflects and develops the potential of
the ECJ judgements on Environmental crimes and Ship source pollution, while making clear
that this competence may go beyond the environmental policy and may extend to virtually all
harmonized policies and contrary to the Ship source pollution may even impose specified
criminal penalties, all this upon the condition if this proves to be essential to ensure the
effective implementation of the particular Union policy.
It is supposed that the measures adopted under all above mentioned competences will be the
directives.36 Unlike the former TEU no exclusion of direct effect is provided for. As a result,
direct effect will be applied in respective relations if classical conditions will be fulfilled
(measure is clear, precise, unconditional). Of course, it must be assumed, in my view, that
also other current Community (and future Union) principles (anyway largely transposed to the
third pillar through the Pupino ruling and its implications) must apply, if no separate
framework is provided for this area.
Finally, the crucial element of the new framework for police and judicial cooperation in
criminal matters will be the introduction of co-decision procedure (EP and Council sharing
legislative competence) and qualified majority voting within the Council in this field.
36 Only the measures under the article 82(1) TFEU within the field of criminal cooperation and assistance
(recognition, conflict of jurisdiction, facilitation of criminal cooperation as regards proceedings in criminal
matters and the enforcement of decisions) could be adopted even by regulations under the qualified majority
voting.
However, some specific characteristics will apply as well. The so-called mechanism of
emergency brake and enhanced cooperation shall apply in this context.37
As regards the emergency brake, each member of the Council will be entitled to suspend the
ordinary legislative procedure and refer the draft directive to the European Council, when it
considers that fundamental aspects of its criminal justice system would be affected. Within
the time limit of four months the European Council may find the consensus. If this procedure
fails, nine member states will be able to establish enhanced cooperation among themselves on
the basis of draft directive concerned (see Article, 82 (3) and 83 (3) TFEU), while no further
approval is required.
A kind of modified mechanism shall apply in the context of the possible establishment of the
European Public Prosecutor´s Office as well as in the sphere of operational police cooperation
where unanimity is required. In these cases, a group of at least nine member states may refer
the matter to the European Council. Again, if the consensus is not reached within four months
in the European Council, at least nine member states, if they wish so, may establish enhanced
cooperation among themselves in the particular matter, while no further approval is required
(see Article 86(1) (2, 3), 87 (3) (2, 3) TFEU, enhanced cooperation, however, shall not apply
to the development of schengen acquis).
As regards the strengthening of the role of the EP, it has already been mentioned that the EP
will win much of the power in this field. First and foremost, when the ordinary legislative
procedure shall be applied the EP should be treated on equal footing with the Council. It will
be a striking change from the current state of affairs where its role is in principle limited only
to consultation and giving non-binding opinions or issuing declarations. In cases where
unanimity decisions will be taken its consent will be required. However, as some authors
regret,38 there will be still blind areas, where the EP shall not exercise its capacity, such as the
area of defining the strategic guidelines for legislative and operational planning within the
area of freedom, security and justice (Article 68 TFEU)39.
Finally, the new role and powers of the national parliaments (NPs) should not be
forgotten. The main new competence, they are granted, is that of the control of the principle
of subsidiarity (and possibly proportionality as well).40 In this area if ¼ of the NPs (each
parliament holding two votes, in bicameral systems one for each chamber) claim breach of the
37 This will, however, not be the case of the competence under article 82(1) TFEU, see the previous note.
38 Weyembergh, A.: Approximation of criminal laws, the constitutional treaty and the Hague programme.
Common Market Law Review, 2005, č. 42, p. 1595, 1596.
39 See the Tampere programme, Hague programme and its Action Plan, accessible at: http://europa.eu/
40 See Article 5 TEU, Article 69 TFEU, Articles, 6 a 7 of the Protocol on the application of the principles of
subsidiarity and proportionality (2007) attached to the Lisbon Treaty.
subsidiarity principle within the 8 weeks from the submission of particular proposal, the
challenged measure must be reviewed by the Commission and decision on maintaining,
withdrawing or amending the measure must be explained. This procedure is called “yellow
card” and as shown cannot block the legislation. Only if ½ of the votes of NPs claim the
same, then first the proposal might be blocked by the majority of the EP or 55% of the
Council. This so-called “orange card” seems to me, however, nearly useless because such a
majority would anyway block the proposal. The “red card” is then used within the context of
general passarelle, or deepening clause, which enables each and every NP to veto the decision
of the European Council to move from unanimity to qualified majority voting (or ordinary
procedure) (see, Article 48(7) TEU)41.
Pros and cons, opportunities and risks of the new framework
The most interesting and challenging issue, I will try to deal with now, is to point (on the
basis of attained experience and concrete examples) to the possible advantages and
disadvantages, as well as opportunities and risks, which the new framework may bring in
contrast to the current state of affairs in the explored area of criminal matters.
In my opinion, the new legal framework may cut off some of the shortfalls inherent in the
current system. The qualified majority voting within the Council may indeed contribute to
attaining better and faster compromises (at least when the emergency breaks are not
activated42) and replace the current prolonged negotiations which more importantly often lead
to the vague and broad compromises, sometimes entailing special exemptions etc.. This “bad
habit” has problematic repercussions both as substantive and procedural aspects are
concerned. First, from a substantive point of view, vague and broad provisions within the
criminal measures may run counter the substantive legality principle,43 the fundamental
principle of a particular importance especially within the criminal field (nullum crimen sine
lege, nulla poena sine lege). Furthermore, the relevant provisions of adopted measures are
often constructed in order to ensure that member states will not be forced to change their laws,
however, then any regulation might become useless and practical added value might be
41 For me it is regretable that at least within the competences under Article 82(2(d) and 83 third par. This
procedure is not envesiged. Such a regulation would support in my view the constitional conformity of these
provisions.
Critically to this mechanism see Monar, J.: Justice and Home Affairs in the EU Constitutional Treaty. What
Added Value for the ‚Area of Freedom, Security and Justice‘ ? European Constitutional Law Review, 2005, č. 1,
p. 241..
43 See, Weyembergh, A.: Approximation of criminal laws, the constitutional treaty and the Hague programme.
Common Market Law Review, 2005, č. 42, p. 1588 – 1590.
missed. On the other hand, these vague and broad definitions may be “sent” to the ECJ, which
then may give a more specific and controversial meaning to their words, also contrary to the
intent of its drafters and legislators (see some judgements on ne bis in idem). Thus
paradoxically the meant advantage may turn to be a great disadvantage for its creators as well.
On the other hand, there is no doubt that the introduction of qualified majority voting to a
large area of substantive and procedural criminal law and certain aspects of both police and
criminal cooperation might give rise to undue over-regulation, centralization and unification,
which will not take into account legitimate national specifics arising from different
environments and legal traditions. To find the blocking minority in the qualified majority
environment will be much harder than it is in the current unanimity environment (indeed,
practitioners argue that even in the environment of unanimity it is practically necessary to find
at least some other “co-fighters”). In this environment the Commission will be able to push
ahead much more comfortably its proposals, even problematic ones. Let´ s mention two
examples from the procedural and substantive criminal field – one abandoned, one still
negotiated. The first was a draft framework decision on certain procedural rights within the
criminal proceedings44. This draft was put to the ice, when one “big” (UK) and about four
“small” states (including the Czech republic) effectively rejected it. There were good reasons
for such a stance, in my view. Besides the unclear legal basis (which under the Lisbon Treaty
will no longer be the case) there were among others reasonable objections as to the added
value of this measure, in this field, which has already been well occupied by the ECHR rules
and the Strasbourg case-law, which could be threatened or weakened through the possible
divergent case-law of the ECJ. Another example of the problematic criminal law proposal of
the Commission, in this case from the substantive criminal law field, both as regards legal
basis (again with the Lisbon Treaty the competence will be also clearly established in this
field and it will not be necessary to found it on extensive reading of the expansive ECJ caselaw
as introduced in Environmental crimes and Ship source pollution) but mainly as regards
the lack of necessity of such a regulation, is the Commission proposal for a directive on
sanctioning of employers of illegally staying third country nationals45, which includes also the
proposals for criminalizing the employers of third country nationals. This directive (among
44 See, document 10287/07, Brussels, 5 June 2007, Proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union.
45 See, document COM(2007) 249 final Brussels, 16.5.2007, Proposal for a directive of the EP and of the Council providing for sanctions against employers of illegally staying third-country nationals, especially Art. 3, 10 – 13. other objections) seems me to be both contrary to the principle of subsidiarity and proportionality, especially for the lack of a clear justification. It was not explained, if the member states are really not able to tackle the illegal immigration on their own. It was not shown that this proposal might serve its aim (really effective fight against illegal
immigration). No statistics were delivered as regards the so-called secondary flows of illegal
immigrants and so-called “nasty” employers, who are able to “count well” and “run their
business with illegal migrant workers” if not harshly criminalized by the Community.
Proportionality was not considered properly as well (should not it be left up to the member
states to decide on criminal or administrative sanctioning). Also some of the concepts
involved (e.g. exploiting working conditions) could be objected from the point they contradict
the substantive legality principle and other elements for other reasons (proportionality of
criminalizing 4 illegal migrants or repeated employment of illegal migrant workers). Last but
not least the criminal law imperative of ultima ratio was not in my view well observed as
well.46
I will stop here. I just wanted to illustrate, the problems, which occur in the criminal field
nowadays and which may effectively be aggravated if the Lisbon Treaty comes into force.
However, to be fair, it must be remembered that with the Lisbon framework not only qualified
majority comes, but also emergency brakes and enhanced cooperation, as well as somehow
strengthened subsidiarity control exercised by the NPs may be applied. If these brakes were
not inserted in the Lisbon Treaty framework, I would probably argue without any hesitance,
that the new framework creates a dangerous engine, which will produce possibly harmless
(procedural rights) and unnecessary (criminalizing employers of illegal migrants) Union
criminal legislation. Because, the brakes are there, I am cautious to absolutely reject the new
framework. However, I admit, that it is the question, whether these brakes are sufficient,
especially when considered in the whole context, where the ECJ gained the full jurisdiction
over Union criminal matters, The Commission its infringement powers and the
integrationistic-oriented EP gained in principle the equal legislative powers as the Council.
To sum up, the Lisbon treaty does form a kind of risk and a great deal of adventure at the
same time. But maybe the actors will surprise, manage and pass the test somehow. Maybe,
they will not.
46 I had an opportunity to take part in a partly negotiating of this instrument and preparing positions of the Czech republic as well. However, these are my personal remarks and reflections only. See also brilliant critical reflection on the same matter in: Dawes, A., Lynskey, O.: The ever-longer arm of EC law: The extension of Community competence into the field of criminal law. Common Market Law Review, 2008, č. 45, p. 147 – 151 and as regards the possible IP criminal area and competition area, 145 – 147, respectively 151 – 155.
Will the advantages or disadvantages prevail? The result of the play or the whole game will
depend upon many variables. Will the ministers invoke fundamentals of their respective
criminal systems? Will the European Council be able to come to consensus or will it start in
fact enhanced cooperation? Will the enhanced cooperation be exercised? Will those states,
which will abstain resist or be integrated? Will not be then the mutual trust (which seem to be
a fiction in fact nowadays) even more undermined in the multi-speed criminal arena of
enhanced cooperation and more confusing for the law enforcement authorities on the one side
and more attractive for forum-shopping and safe havens-loving criminals on the other side?
Will the NPs boldly take up their roles? Will they raise yellow and orange cards? How will
the Commission and the respective ministers react? And what about the ECJ?
These are the open questions and challenges the Lisbon Treaty brings.
Lets´ come and see. No boring films, no soap operas, are expected. Drama, thriller will come.
Welcome in new “lisbonized” criminal area!
Conclusion
In this paper I focused on describing and analyzing the main developments within the third
pillar of the EU and beyond. I showed, how this intergovernmental pillar and criminal matters
as such have been influenced and subjected to the Community principles, rules and
mechanisms, especially by the expansive ECJ case-law, represented by the judgements such
as Pupino, Environmental Crimes or Ship source pollution. Then I turned my attention to the
novelties introduced by the Lisbon framework in the explored area, both as regards
institutional and functional aspects of the new order, while emphasizing some unique
characteristics newly introduced (emergency brake, enhance cooperation). Finally I tried to
sketch the future advantages, respectively disadvantages and risks of the new order in this
field. I concluded my paper by raising questions as to the future prospects of this area under
the Lisbon Treaty, which represents a true leap into the unknown in this respect.
Literature:
[1] Craig, P., de Búrca, G.: EU Law – Text, Cases and Materials. New York: Oxford
University Press, 2003, s.178- 228; 257-315.
[2] Čakrt, F.: Nástin komunitarizace v rámci III. pilíře. Trestněprávní revue, 2007, č. 1, s.
4 – 12.
[3] Dawes, A., Lynskey, O.: The ever-longer arm of EC law: The extension of
Community comeptence into the field of criminal law. Common Market Law Review,
2008, č. 45, s. 131 – 158.
[4] Kmec, J.: Evropské trestní právo. Mechanismy europeizace trestního práva a vytváření
skutečného evropského trestního práva, Praha: C.H.Beck, 2006, s. 230.
[5] Komárek, J.: „Tentýž čin“ v prostoru svobody, bezpečnosti a práva. Jurisprudence,
2006, č. 3, s. 51 – 57.
[6] Monar, J.: Justice and Home Affairs in the EU Constitutional Treaty. What Added
Value for the ‚Area of Freedom, Security and Justice‘ ? European Constitutional Law
Review, 2005, č. 1, s. 226 – 246.
[7] Peers, S.: Salvation outside the church: Judicial protection in the third pillar after the
Pupino and Segi judgments. Common Market Law Review, 2007, č. 44, s. 883 – 929.
[8] Spaventa, E.: Opening Pandora´s Box: Some reflections on the Constitutional Effects
of the Decision in Pupino. European Constitutional Law Review, 2007, č. 3, s. 5 – 24.
[9] Týč, V.: Působení práva Evropské unie ve sféře českého právního řádu In: Evropský
kontext vývoje českého práva po roce 2004: sborník z workshopu konaného na
Právnické fakultě MU v Brně dne 26.9.2006. 1. vyd. Brno: Masarykova univerzita,
2006, s. 10-28.
[10] Weyembergh, A.: Approximation of criminal laws, the constitutional treaty and
the Hague programme. Common Market Law Review, 2005, č. 42, s. 1567 – 1597.
Case-law of the Court of Justice:
[1] C-105/03, „Pupino,“ 16. 6. 2005
[2] C-176/03, „Environmental crimes,“ 13. 9. 2005
[3] C-440/05, „Ship source pollution,“ 23. 10. 2007
[4] C-355/04 P, „Segi,“ 27. 2. 2007
[5] C-303/05, „European arrest warrant,“ (Advocaten voor de Wereld VZW), 3. 5. 2007
Kontaktní údaje na autora – email:
michael.svarc@volny.cz
AND ACCORDING TO THE LISBON TREATY
http://www.law.muni.cz/sborniky/cofola2008/files/pdf/evropa/svarc_michael.pdf
MICHAEL ŠVARC, Právnická fakulta, Masarykova univerzita, Brno
Abstrakt
Práce se pokusí popsat a analyzovat současné projevy tzv. komunitarizace třetího pilíře EU,
kterou autor chápe jako proces, kdy oblast policejní a justiční spolupráce v trestních věcech
začíná být ovlivňována či dokonce podřizována komunitárním principům a mechanizmům
(zásada loajality, nepřímého účinku, efektivity, role Komise a ESD), a to při začlenění do
režimu mezivládní spolupráce. Ta má být překonána Lisabonskou smlouvou, která danou
oblast podřizuje zásadně komunitárnímu režimu (hlasování kvalifikovanou většinou ve
spolurozhodovaní proceduře s EP, podrobení se jurisdikci ESD, přímý účinek). Práce se
pokusí srovnat a analyzovat výhody a nevýhody obou režimů v dané oblasti. Podtrhne přitom
i specifika komunitárních mechanizmů v této oblasti dle Lisabonské smlouvy. Ambicí práce
je rovněž upozornit na možnosti, ale i meze a rizika rozvoje komunitárního režimu v oblasti
trestní politiky podle Lisabonské smlouvy.
Klíčová slova třetí pilíř, první pilíř, mezivládní spolupráce, komunitární právní řád, policejní a justiční spolupráce v trestních věcech, obecné zásady, svěření pravomocí, sdílené pravomoci,
subsidiarita, proporcionalita, přednost, přímý účinek, nepřímý účinek, odpovědnost za škodu
(Francovich), hlasování kvalifikovanou většinou, záchranná brzda, posílená spolupráce,
přeshraniční dvojí trestání (ne bis in idem), princip legality, Evropská Rada, Komise,
Evropský parlament, Rada, Soudní dvůr (ESD), národní parlamenty, žlutá, oranžová, červená
karta.
Abstract
This paper attempts to describe and analyze the current instances of the so-called
communitarization of the third pillar of the EU, which the author considers to be a process,
when the police and judicial cooperation in criminal matters starts to be influenced or even
subjected to the Community principles and mechanisms (such as the principle of loyal
cooperation, indirect effect, effectiveness, the role of the Commission and ECJ), while falling
into the intergovernmental framework. However, this framework should be displaced by the
Lisbon Treaty, which in principle subjects this area to the communitarian regime (voting by
the qualified majority in co-decision procedure with EP, jurisdiction of the ECJ, direct effect).
The paper will try to compare and analyze both advantages and disadvantages of both
(intergovernmental and communitarian) frameworks in the field of criminal matters. Specific
characteristics of communitarian mechanisms under the Lisbon Treaty will be emphasized as
well. The aim of the paper will be to show the possibilities and opportunities, but also limits
and risks of further developments of communitarized criminal policy under the Lisbon Treaty.
Key word rd pillar, first pillar, intergovernmental cooperation, Community legal order, police and
judicial cooperation in criminal matters, general principles, conferral of powers, shared
competence, subsidiarity, proportionality, supremacy (primacy), direct effect, indirect effect,
liability for damages (Francovich), qualified majority voting, emergency break, enhanced
cooperation, cross-border double jeopardy principle (ne bis in idem), substantive legality
principle, European Council, Commission, European Parliament, Council, Court of Justice
(ECJ), national parliaments, yellow, orange, red card.
Introduction
This paper will focus on developments and possible future prospects within the third pillar of
the European Union (EU). First, I will briefly sum up the “constitutional” foundations of the
third pillar, as regards both the role of the Union institutions and legal effects of the measures
adopted under this framework as provided for in the Treaty on European Union (TEU),
especially its Title VI, which governs police and judicial cooperation in criminal matters.
Then I will show, how this area of criminal matters has been communitarized, especially by
the case-law of the Court of Justice (ECJ). Turning to the new settlement of this area
according to the Lisbon Treaty, especially Title V, chapters 1, 4 a 5 of the Treaty on the
Functioning of the European Union (TFEU),1 I will try to describe and analyze the most
important novelties, which the new framework introduces. In principle all classical
Community rules and principles should apply within the specified field of criminal matters.
However, important specific characteristics applicable to this area (such as maintaining
1 TFEU will replace the current Treaty establishing the European Community (TEC). The area of police and judicial cooperation will be transfered from TEU to the TFEU and included in Title V, with the heading “Area of freedom, security and justice,” which will contain also chapters on general provisions, policies on border checks, asylum, immigration and judicial cooperation in civil matters. unanimity in certain matters, emergency break and enhanced cooperation) will be emphasized as well. Finally the paper will on the basis of attained experience and concrete examples attempt to point to the possible advantages, respectively disadvantages and risks, which the new framework may bring in contrast to the current state of affairs in the explored area of criminal matters.
The “constitutional” foundations of the third pillar compared to the first pillar
The third pillar, established by the Maastricht Treaty and limited to police and judicial
cooperation in criminal matters by the Amsterdam Treaty, forms basically a distinct
framework of intergovernmental cooperation, which is to be differentiated from the
Community legal order, resting on the TEC and developed by the ECJ case-law2. First and
foremost, the nature of the third pillar as laid down especially in the Title VI of the TEU
resembles more the classical international regime (where, it seems, there is no room for a
simple hierarchy or subordination, but the consent of each and every state is predominant)
rather than the supranational one, which was developed under the first pillar, patterned by the
primacy and direct applicability (and effectiveness) of adopted rules towards individual
member states (even when outvoted) and their citizens. From the institutional point of view,
similarly, the institutions such as the European Commission (Commission), European
Parliament (EP) and the ECJ were not granted such broad powers, as is the case in the first
pillar. By contrast, the Council of Ministers (the Council), which represents the individual
member states, was given great external and legislative powers, including the veto right for
each and single minister thanks to the unanimity voting, introduced as a rule for decisionmaking
in this sensitive and with the sovereignty of the member states´ closely connected area
of police and judicial cooperation in criminal matters. Moreover, the intergovernmental
character of the third pillar seems to be strengthened by the legislative initiative of each
member state (sharing this right with the Commission) and mainly by the weakening of both
2 See these crucial judgements of the ECJ: C- 26/62 Van Gend en Loos, 5.2.1963, (direct effect) a C- 6/64 Costa v. ENEL, 15.7.1964 (supremacy or primacy of EC law); and further elaboration on this as regards both direct and indirect effect: C-152/84 Marshall, 26.2.1986, C-14/83 Von Colson a Kamman, 10.4.1984, C-106/89 Marleasing, 13.11.1990, C-194/94CIA Security v. Securitel, 30.4.1996, and primacy of EC law, or even the emerging concept of pre-emption: C-11/70 Internationale Handelsgesselschaft, 17.12.1970; C-35/76, resp. C-
106/77 Simmenthal I, II, 15.12.1976, resp. 9.3.1978; C-10-22/97 Ministero delle Finanze v. IN.CO.GE´90 Srl, 22.10.1998; C-148/78 Ratti, 5.4.1979; C- 31/78 Bussone, 30.11.1978; C-11/92 Gallaher, 22.6.1993; including liability for damages for infringement of Community law: C-6 & 9/90 Francovich, 19.11.1991; C-46/93 Brasserie/Factortame, 15.3.1996; C-178/94 and others point cases Dillenkofer, 8.10.1996; C-224/01 Köbler, 30.9.2003, which might be read also in conjunction with the judgement C-453/00 Kühne & Heitz, 13.1.2004; summarized In Craig, P., de Búrca, G. EU Law – Text, Cases and Materials. New York: Oxford University Press, 2003, s.178- 228; 257-315. the EP, limited only to consultation within the legislative process, and the Commission, which is not allowed to pursue infringement procedure as is the case under the first pillar Community legal order. Also the limited jurisdiction of the ECJ, as compared to its role under the first pillar, is of great significance, when assessing the specific nature of the third pillar
framework. Preliminary rulings, seemingly limited in its subject, are not obligatory at all at
any stage and annulment actions are limited only to privileged applicants. Infringement
procedure, as mentioned above, does not apply at all. As a result, the member states do not
run any risk of being financially penalized by the ECJ, when infringing third pillar union law.
As regards the legal effects of the measures adopted under the third pillar, the TEU explicitly
abolishes direct effect of the decision and framework decision. The latter resembles by
definition and aim in approximating national laws directive under the first pillar, however,
without possessing a feature of direct effect loses much of its strength, because the particular
provisions of the framework decision cannot be then directly invoked by individuals before
the national authorities, and the courts particularly, with a view setting aside, if necessary,
contrary national rule and applying directly effective one (in upwards vertical relations at
least).
Although it might seem from all above mentioned that the intergovernmental framework of
the third pillar absolutely prevails,3 the next chapter will show, how especially the ECJ is
ready to make use of some communitarian aspects involved in that framework and extend
them to the maximum, while borrowing the concepts from the first pillar as well, in order to
promote more uniform application of the union law in this field and guarantee at least some
kind of judicial protection. It will be, however, also pointed to the extension of the community
competence over criminal matters by the ECJ, revealing the potential of the first pillar for the
purposes of criminal regulation.
Third pillar under attack – creeping communitarization
In general
In spite of the fact of intergovernmental characteristics of the third pillar, as briefly sketched
above, I will try to illustrate, how this pillar has been communitarized, i.e. influenced by and
subjected to the Community principles, rules and mechanisms. 3 However, there is a regular „bridge,“ enabling to transfer the respective areas of criminal matters to the first pillar entailed in Article 42 TEU. The cumbersome procedure which subjects such a unanimous decision of the
Council to the constitutional procedures of member states makes this provision, however, practically ineffective.
Among the Union institutions it was mainly the ECJ which heavily supported this process by
taking full advantage of its jurisdiction and pointing to the broad tasks and objectives of the
Union and the necessity to ensure both the consistency within the Union framework as a
whole and the effectiveness of the measures adopted within the third pillar particularly (see
below, Pupino, Segi, EAW judgements of the ECJ). ECJ also promoted uniform application of
crucial third pillar rules and principles, such as the prohibition of cross-border double
jeopardy (see below, sketched case-law of the ECJ on ne bis in idem).
Furthermore, the potential of expansive growth of the communitarian control over criminal
matters was also supported by the ECJ case-law on the possibility of implicit competence
over criminal matters within the first pillar under certain conditions (see below,
Environmental crimes and Ship source pollution judgements of the ECJ).
Besides that, the process of communitarization was also boosted by the practice developed
within the Council, where special negotiation techniques, political pressure, package deals
seem to undermine de iure unanimity voting rule as well.4
Moreover, the active role of the Commission, coming up with legislative proposals, which
seem not always to observe both the union and Community fundamental principles such as
the subsidiarity principle5 or even fundamental rights6, contributed also a lot to the
communitarization of this area.
The role of the ECJ in communitarization of the third pillar
In my view Pupino represents a leading case in this area. The ECJ was asked by the Italian
court within the preliminary ruling procedure under article 35 TEU to give an interpretative
ruling on a specific provision of the framework decision on the protection of victims, which
related to the special criminal procedure in respect of vulnerable victims, respectively
application of the procedural benefits towards maltreated children. After declaring its
jurisdiction and its scope under the Article 46(b) TEU, in conj. with Article 35 TEU, the ECJ
stressed the binding nature of framework decisions, inspired largely by the Article 234 TEC.
Due to the fact that the TEU in this respect expressly excludes direct effect, the ECJ could
4 See, more elaborated on this matter: Čakrt, F.: Nástin komunitarizace v rámci III. pilíře. Trestněprávní revue, 2007, č. 1, s. 4 – 12.
5 See, ibid p. 7 as regards the critical reflection on this as exemplified by the Green book on the conflicts of
jurisdictions and the principle ne bis in idem in criminal proceedings, KOM(2005) 696
6 See, for instance the so-called data retention directive, where the protection of the fundamentals principle of protection of personal data might be interfered with disproportionately
only promote the effectiveness of the framework decisions by the so-called indirect effect,
elaborated within the first pillar. And indeed, it did so, stating that the binding character of the
framework decisions places on national authorities, and particularly national courts, an
obligation to interpret national law in conformity7.
Moreover, the ECJ added, that while having the jurisdiction in preliminary ruling procedure,
this would be deprived of most of its useful effect, if individuals were not entitled to invoke
framework decisions in order to obtain a confirming interpretation of national law before the
courts of the member states8. Furthermore, the ECJ, without any reference in the text of the
TEU (unlike Article 10 TEC), went further to pronounce the applicability of the principle of
loyal cooperation9 in this field as well, pointing to the aim of the Union to create an ever
closer Union among the peoples of Europe and necessity to ensure that the Union may
effectively fulfil its tasks.10 The applicability of the principle of loyal cooperation within the
third pillar gave rise to the debate on possible far-reaching implications this might bring. As
we know, from the principle at stake important Community principles, rules, mechanisms
were inferred, such as the principle of supremacy (primacy, precedence), the Francovich
principle of liability for damages, the twin principles of effectiveness and equivalence, just to
name the most important ones. And some authors indeed suggest the possible application of at
least some of them, such as Francovich principle of liability for damages and principles of
effectiveness and equivalence.11 Finally, Pupino ruling itself, while setting limits to the
application of the so-called indirect effect (cannot be contra legem and conflict the principles
7 C-105/03, „Pupino,“ 16. 6. 2005, para 34.
8 C-105/03, „Pupino,“ 16. 6. 2005, para 38.
9 However, S. Peers notices that the ECJ makes, with exception of requirement to take measures to ensure fulfilment of obligations, no reference to other aspects of the principle of loyal cooperation, see Peers, S.: Salvation outside the church: Judicial protection in the third pillar after the Pupino and Segi judgments. Common Market Law Review, 2007, č. 44, p. 916, 917.
10 C-105/03, „Pupino,“ 16. 6. 2005, paras 41, 42: „… treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe and that the task of the Union, which is founded on the European Communities, supplemented by the policies and forms of cooperation established by that treaty, shall be to organise, in a manner demonstrating consistency and solidarity, relations between the Member States and between their peoples…. It would be difficult for the Union to carry out its task effectively if the principle of loyal cooperation, requiring in particular that Member States take all appropriate measures, whether general or
particular, to ensure fulfilment of their obligations under European Union law, were not also binding in the area of police and judicial cooperation in criminal matters, which is moreover entirely based on cooperation between the Member States and the institutions…“
11 See, for instance Spaventa, E.: Opening Pandora´s Box: Some reflections on the Constitutional Effects of the Decision in Pupino. European Constitutional Law Review, 2007, č. 3, s. 18 – 22 or Peers, S.: Salvation outside the church: Judicial protection in the third pillar after the Pupino and Segi judgments. Common Market Law Review, 2007, č. 44, p. 921 – 924, where the author comes up with practical examples, for instance that the wrongful detention, prosecution and conviction connected to the double leopardy rules should be compensated in
accordance with the principles established as regards Community damages liability.
of legal certainty and non-retroactivity or establish and aggravate criminal liability)12, in my
view, implicitly suggests that general principles of Community law, or at least some of them,
may and should be applied within the third pillar, as well. I agree with S. Peers that the
general principles of Community law13 (such as protection of human rights, legal certainty
and of the protection of legitimate expectations, non-retroactivity, principle of equality and
non-discrimination, principle of the right to defence and the rule against double jeopardy;
principles governing the exercise of community powers such as principle of conferred powers,
subsidiarity and proportionality) should apply in their entirety here as well.14 However, the
ECJ when ruling on the observance of these principles should, in my view, pay due respect to
the principles of subsidiarity and the primary (or largely exclusive) responsibility of member
states for maintaining public order and security on their territory and observing their human
rights obligations under the European Convention for the protection of human rights and
fundamental freedoms (ECHR), from which the ECJ itself should in no case depart as well15.
Similarly, the ECJ, while interpreting, should not encroach upon legislative domain of the
Council as well. The ECJ in my opinion should be very careful and restraint in using too
much extensive interpretation which might run counter words and intent of drafters and
legislators. I admit, there might be instances, where the court must decide on the merits and
deliver the justice to individuals, even (if necessary and well justified) by going beyond the
text and finding just solutions by systematic a teleological interpretation. However, in general
and as a rule, the ECJ should, in my view, especially in this sensitive field of criminal affairs,
be very cautious when trying to unify some of the controversial concepts, beyond the adopted
legislative consensus reached. In this regard, the unifying case-law of the ECJ on the
principle against double jeopardy (ne bis in idem)16 seem to me (at least as regards some
judgements) very ambitious and too extensive as well, and in some instances undermining
criminal justice systems of individual member states.17 I am hinting here at some kind of
12 C-105/03, „Pupino,“ 16. 6. 2005, paras 44, 45.
13 For a systematic categorization of Community general principles see, Týč, V.: Působení práva Evropské unie ve sféře českého právního řádu In: Evropský kontext vývoje českého práva po roce 2004: sborník z workshopu konaného na Právnické fakultě MU v Brně dne 26.9.2006. 1. vyd. Brno: Masarykova univerzita, 2006, s. 22-27.
14 See, Peers, S.: Salvation outside the church: Judicial protection in the third pillar after the Pupino and Segi
judgments. Common Market Law Review, 2007, č. 44, p. 926 – 928.
15 Compare, Article 52(3) of the Charter of fundamentals rights of the Union, which shall be legally binding
according to the Article 6(1) of the TEU, introduced by the Lisabon Treaty.
16 See judgements: ; C-187/01, C-385/01, Gozütok & Brügge, 11.2.2003, C-288/05, Kretzinger, 18.7.2007,; C-
367/05, Kraajjenbrink, 18.7. 2007; C-150/05, Van Straaten, 28.9.2006; C-467/04, Gasparini, 28.9.2006; C-
436/04, Van Esbroeck, 9.3. 2006; C-469/03, Miraglia, 10.3.2006.
17 For a brilliant reflection see, Komárek, J.: „Tentýž čin“ v prostoru svobody, bezpečnosti a práva.
Jurisprudence, 2006, č. 3, s. 51 – 57.
hidden communitarian mechanism, which might be activated through preliminary rulings, and
which attributes the ECJ the role of de facto legislator, when interpreting the very broad and
vague terms, adopted within the Council.
Finally, the ECJ affected heavily the criminal field, which was generally perceived to be the
domain of member states or their cooperation within the third pillar,18 by two its famous
rulings on Environmental crimes19 and Ship source pollution20. The ECJ delivered its
judgement on Environmental crimes upon the respective action brought by the Commission,
which asserted that the Council had encroached upon its competences under the TEC by
adopting framework decision on the protection of environment through criminal law under the
third pillar. The ECJ took the same view and annulled the challenged framework decision on
grounds that it indeed encroached on the powers which Article 175 of the TEC in the area of
environment confers on the Community21. As a starting point the ECJ stressed that Article 47
of the TEU provides that nothing in the TEU is to affect TEC.22 Then the ECJ examined both
the aim and content of the challenged framework decision and realized that indeed the main
purpose of the adopted measure was the protection of the environment. As regards implied
competence to criminal regulation within this field, the ECJ firstly stated that as a general
rule, neither criminal law nor the rules of criminal procedure fall within the Community’s
competence.23 However, the ECJ did not stop here, but went further on to hold that the
Community legislature is not prevented to adopt measures which relate to the criminal law of
the member states 1) which it considers necessary in order to ensure that the rules which it
lays down (on environmental protection) are fully effective and 2) where the application of
effective, proportionate and dissuasive criminal penalties by the competent national
authorities is an essential measure (for combating serious offences).24
This controversial judgement gave of course a strong weapon in the hands of Commission,
which interpreted its implications very extensively both as regards the fields of Community
18 However, also the previous case-law of the ECJ show form the 1980s, that even at that times the field of
criminal policy was not completely immune from the operation of Community law, especially when the principle
of effectiveness and equivalence or non-discrimination were at stake (see, judgement 68/88, „Greek Maize,“ 21.
9. 1989 or judgement 186/87, „Cowan,“ 2. 2. 1989) or when disproportionate (criminal) restrictions on freedom
of movement arose (see, judgement C-118/75, “Watson and Belmann,” 14. 7. 1976 or judgement C-265/88,
“Messner,” 12. 12. 1989), See very brilliant summary in: Kmec, J.: Evropské trestní právo. Mechanismy
europeizace trestního práva a vytváření skutečného evropského trestního práva, Praha: C.H.Beck, 2006, s. 230.
19 C-176/03, „Environmental crimes,“ 13. 9. 2005
20 C-440/05, „Ship source pollution,“ 23. 10. 2007
21 C-176/03, „Environmental crimes,“ 13. 9. 2005, para 53.
22 Ibid. at para 38.
23 Ibid. at para 47.
24 Ibid. at para 48.
policies to which it may be applied and the intensity of the criminal regulation itself25 and as
A. Dawes and O. Lynskey in their brilliant reflection of this case put it – some of its
conclusions drawn (such as the power to decide under the first pillar policies on the choice of
the criminal penalties to be applied) were even contradictory to the judgement itself26.
The second judgement of the ECJ on Ship source pollution27 was expected with hope that it
will bring answers to the open questions which the ruling on Environmental crimes remained
unresolved. However, the ECJ judgement seems to be rather disappointing in this respect. The
answer to the question, whether the criminal competence under the first pillar should be
derived from the necessity to ensure the effectiveness of the (crucial) Community policies, as
the Advocate General Mazák suggested in his opinion28, or is limited solely to the
environmental policy, is somehow ambiguous. The ECJ confirmed that the challenged
measure could have been validly adopted under the first pillar within the specific competence
under the transport policy, however the ECJ emphasized the link with environmental
protection in this case as well.29 Fortunately, at least another issue on the intensity of criminal
legislation within the first pillar was clearly resolved, by stating that under the first pillar the
Community does not possess the power to impose the type and level of criminal penalties.30 It
should therefore limit itself to imposing effective, proportionate and dissuasive criminal
penalties and leave it up to the member states to specify them in their respective criminal
systems.31
To sum up the case-law of the ECJ in the third pillar it may be concluded that many
Community principles, rules, mechanisms and concepts (such as indirect effect, principle of
loyal cooperation, principle of liability for damages, right to defence, principle against double
jeopardy and general principles including human rights and legal certainty) developed under
the first pillar were (some of them possibly) transposed within the third pillar by the creative
case-law of the ECJ. The magic word of effectiveness played the most important role in its
case-law as introduced in Pupino and confirmed in later ECJ judgements (besides those
25 See doc. COM 2005 (583), dated 23.11.2005, Brussels, Communication from the Commission to the European
Parliament and the Council, particularly para 10, where it states that the member states freedom to choose the
penalties they apply may be limited by the Community legislature, if the effectiveness of community law so
requires.
26 See, Dawes, A., Lynskey, O.: The ever-longer arm of EC law: The extension of Community comeptence into
the field of criminal law. Common Market Law Review, 2008, č. 45, s. 138, 139.
27 C-440/05, „Ship source pollution,“ 23. 10. 2007
28 Opinion of the Advocate General Mazák C-440/05, „Ship source pollution,“ 23. 10. 2007, paras 88 – 102,
especially 99.
29 C-440/05, „Ship source pollution,“ 23. 10. 2007, paras 66, 67, 69.
30 Ibid. para 70
31 See, brilliant reasoning in this respect in the Opinion of the Advocate General Mazák C-440/05, „Ship source
pollution,“ 23. 10. 2007, paras 106, 107, 108 and further.
mentioned above Segi32 and European arrest warrant33 judgement of the ECJ may be added).
Third pillar of the Union temple started to be progressively rebuilt by the ECJ. And the
Lisbon Treaty accomplished this work in high style.
Third pillar “lisbonised” – communitarization with some specific characteristics
accomplished
If the Lisbon Treaty is to be ratified by all of the member states and enters into force, then the
third pillar will diminish and the institutional balance and functioning of the area of police and
judicial cooperation in criminal matters will be largely transformed. This area will be
“lisbonized,” i.e. will be governed mostly and largely by supranational principles, rules and
mechanisms, which are today called the Community ones.
The role of the institutional actors will change significantly. The Commission, the EP, the
ECJ as well as national parliaments (NPs) will gain a lot of new power in this domain. By
contrast, individual member states will lose their right to legislative initiative (only ¼ of them
together will retain this right – see Article 76 TFEU) and more importantly, in principle, also
the veto power in the decision making process, which will be newly subject to co-decision
with the EP. Furthermore, member states will be subject to infringement procedure, where
both the Commission and the ECJ will exercise their prerogatives (including supervising and
penalizing ones) in order to ensure that the union law is observed.34 The ECJ will be attributed
by the full jurisdiction over this field at the same time (only with one exception: the ECJ will
have no jurisdiction to review the validity or proportionality of operations carried out by the
police or other law-enforcement services with regard to the maintenance of law and order and
the safeguarding of internal security35). Moreover, the ECJ may develop its human rights
case-law, thanks to the binding force of the Charter of Fundamental Rights of the Union (see,
Article 6 (1) TEU in conj. with the Charter itself). Especially in the field of criminal matters
such a case-law may play a very important role. It will be seen how the relationship with
ECHR Strasbourg Court but also national constitutional courts will develop in this respect.
With the new Lisbon Treaty the Commission may turn to the real “engine” of the
development of “European criminal area”. Its strength and influence derives not only from its
32 C-355/04 P, „Segi,“ 27. 2. 2007
33 C-303/05, „European arrest warrant,“ (Advocaten voor de Wereld VZW), 3. 5. 2007
34 However, according to the Protocol (No 36) on Transitional Provisions the infringement procedures and the
new ECJ jurisdiction will apply (at the latest) after 5 years from the entry into force of the Lisabon Treaty, if the
relevant measures will not be amended before.
35 Article 276 of the TFEU
legislative monopoly (however, as mentioned above it will be shared with ¼ of members
states), but mainly, in my view, from a firm and very broad legal bases for its activities in this
field, as regards legislation in the field of substantive and procedural criminal law and
cooperation and assistance in criminal matters (but also as regards operational and nonoperational
police cooperation). The concrete competences within these fields are defined
with a certain precision. Compared to the current regulation in articles 29, 31, 34 of the TEU,
they are more elaborated but much more extensive as well. They fall within the area of the
so-called shared competence (see, Article 4(2)(j) TFEU), however, the modified version of
pre-emption should apply in my view in this area (see, Article 2(2), read in conj. with Article
2(6) TFEU), because only minimum rules on certain aspects of procedural and substantive
criminal law are allowed to be adopted (see, Article 82 (2) and 83 (1) TFEU), other aspects
may be added upon the unanimous decision of the Council and consent of the EP. It should
be, however, kept in mind that the substantive criminal competence is supposed to be
potentially expanded also within the harmonized fields, where even the cross-border element
is missing (see, Article 83 (2) TFEU). This competence reflects and develops the potential of
the ECJ judgements on Environmental crimes and Ship source pollution, while making clear
that this competence may go beyond the environmental policy and may extend to virtually all
harmonized policies and contrary to the Ship source pollution may even impose specified
criminal penalties, all this upon the condition if this proves to be essential to ensure the
effective implementation of the particular Union policy.
It is supposed that the measures adopted under all above mentioned competences will be the
directives.36 Unlike the former TEU no exclusion of direct effect is provided for. As a result,
direct effect will be applied in respective relations if classical conditions will be fulfilled
(measure is clear, precise, unconditional). Of course, it must be assumed, in my view, that
also other current Community (and future Union) principles (anyway largely transposed to the
third pillar through the Pupino ruling and its implications) must apply, if no separate
framework is provided for this area.
Finally, the crucial element of the new framework for police and judicial cooperation in
criminal matters will be the introduction of co-decision procedure (EP and Council sharing
legislative competence) and qualified majority voting within the Council in this field.
36 Only the measures under the article 82(1) TFEU within the field of criminal cooperation and assistance
(recognition, conflict of jurisdiction, facilitation of criminal cooperation as regards proceedings in criminal
matters and the enforcement of decisions) could be adopted even by regulations under the qualified majority
voting.
However, some specific characteristics will apply as well. The so-called mechanism of
emergency brake and enhanced cooperation shall apply in this context.37
As regards the emergency brake, each member of the Council will be entitled to suspend the
ordinary legislative procedure and refer the draft directive to the European Council, when it
considers that fundamental aspects of its criminal justice system would be affected. Within
the time limit of four months the European Council may find the consensus. If this procedure
fails, nine member states will be able to establish enhanced cooperation among themselves on
the basis of draft directive concerned (see Article, 82 (3) and 83 (3) TFEU), while no further
approval is required.
A kind of modified mechanism shall apply in the context of the possible establishment of the
European Public Prosecutor´s Office as well as in the sphere of operational police cooperation
where unanimity is required. In these cases, a group of at least nine member states may refer
the matter to the European Council. Again, if the consensus is not reached within four months
in the European Council, at least nine member states, if they wish so, may establish enhanced
cooperation among themselves in the particular matter, while no further approval is required
(see Article 86(1) (2, 3), 87 (3) (2, 3) TFEU, enhanced cooperation, however, shall not apply
to the development of schengen acquis).
As regards the strengthening of the role of the EP, it has already been mentioned that the EP
will win much of the power in this field. First and foremost, when the ordinary legislative
procedure shall be applied the EP should be treated on equal footing with the Council. It will
be a striking change from the current state of affairs where its role is in principle limited only
to consultation and giving non-binding opinions or issuing declarations. In cases where
unanimity decisions will be taken its consent will be required. However, as some authors
regret,38 there will be still blind areas, where the EP shall not exercise its capacity, such as the
area of defining the strategic guidelines for legislative and operational planning within the
area of freedom, security and justice (Article 68 TFEU)39.
Finally, the new role and powers of the national parliaments (NPs) should not be
forgotten. The main new competence, they are granted, is that of the control of the principle
of subsidiarity (and possibly proportionality as well).40 In this area if ¼ of the NPs (each
parliament holding two votes, in bicameral systems one for each chamber) claim breach of the
37 This will, however, not be the case of the competence under article 82(1) TFEU, see the previous note.
38 Weyembergh, A.: Approximation of criminal laws, the constitutional treaty and the Hague programme.
Common Market Law Review, 2005, č. 42, p. 1595, 1596.
39 See the Tampere programme, Hague programme and its Action Plan, accessible at: http://europa.eu/
40 See Article 5 TEU, Article 69 TFEU, Articles, 6 a 7 of the Protocol on the application of the principles of
subsidiarity and proportionality (2007) attached to the Lisbon Treaty.
subsidiarity principle within the 8 weeks from the submission of particular proposal, the
challenged measure must be reviewed by the Commission and decision on maintaining,
withdrawing or amending the measure must be explained. This procedure is called “yellow
card” and as shown cannot block the legislation. Only if ½ of the votes of NPs claim the
same, then first the proposal might be blocked by the majority of the EP or 55% of the
Council. This so-called “orange card” seems to me, however, nearly useless because such a
majority would anyway block the proposal. The “red card” is then used within the context of
general passarelle, or deepening clause, which enables each and every NP to veto the decision
of the European Council to move from unanimity to qualified majority voting (or ordinary
procedure) (see, Article 48(7) TEU)41.
Pros and cons, opportunities and risks of the new framework
The most interesting and challenging issue, I will try to deal with now, is to point (on the
basis of attained experience and concrete examples) to the possible advantages and
disadvantages, as well as opportunities and risks, which the new framework may bring in
contrast to the current state of affairs in the explored area of criminal matters.
In my opinion, the new legal framework may cut off some of the shortfalls inherent in the
current system. The qualified majority voting within the Council may indeed contribute to
attaining better and faster compromises (at least when the emergency breaks are not
activated42) and replace the current prolonged negotiations which more importantly often lead
to the vague and broad compromises, sometimes entailing special exemptions etc.. This “bad
habit” has problematic repercussions both as substantive and procedural aspects are
concerned. First, from a substantive point of view, vague and broad provisions within the
criminal measures may run counter the substantive legality principle,43 the fundamental
principle of a particular importance especially within the criminal field (nullum crimen sine
lege, nulla poena sine lege). Furthermore, the relevant provisions of adopted measures are
often constructed in order to ensure that member states will not be forced to change their laws,
however, then any regulation might become useless and practical added value might be
41 For me it is regretable that at least within the competences under Article 82(2(d) and 83 third par. This
procedure is not envesiged. Such a regulation would support in my view the constitional conformity of these
provisions.
Critically to this mechanism see Monar, J.: Justice and Home Affairs in the EU Constitutional Treaty. What
Added Value for the ‚Area of Freedom, Security and Justice‘ ? European Constitutional Law Review, 2005, č. 1,
p. 241..
43 See, Weyembergh, A.: Approximation of criminal laws, the constitutional treaty and the Hague programme.
Common Market Law Review, 2005, č. 42, p. 1588 – 1590.
missed. On the other hand, these vague and broad definitions may be “sent” to the ECJ, which
then may give a more specific and controversial meaning to their words, also contrary to the
intent of its drafters and legislators (see some judgements on ne bis in idem). Thus
paradoxically the meant advantage may turn to be a great disadvantage for its creators as well.
On the other hand, there is no doubt that the introduction of qualified majority voting to a
large area of substantive and procedural criminal law and certain aspects of both police and
criminal cooperation might give rise to undue over-regulation, centralization and unification,
which will not take into account legitimate national specifics arising from different
environments and legal traditions. To find the blocking minority in the qualified majority
environment will be much harder than it is in the current unanimity environment (indeed,
practitioners argue that even in the environment of unanimity it is practically necessary to find
at least some other “co-fighters”). In this environment the Commission will be able to push
ahead much more comfortably its proposals, even problematic ones. Let´ s mention two
examples from the procedural and substantive criminal field – one abandoned, one still
negotiated. The first was a draft framework decision on certain procedural rights within the
criminal proceedings44. This draft was put to the ice, when one “big” (UK) and about four
“small” states (including the Czech republic) effectively rejected it. There were good reasons
for such a stance, in my view. Besides the unclear legal basis (which under the Lisbon Treaty
will no longer be the case) there were among others reasonable objections as to the added
value of this measure, in this field, which has already been well occupied by the ECHR rules
and the Strasbourg case-law, which could be threatened or weakened through the possible
divergent case-law of the ECJ. Another example of the problematic criminal law proposal of
the Commission, in this case from the substantive criminal law field, both as regards legal
basis (again with the Lisbon Treaty the competence will be also clearly established in this
field and it will not be necessary to found it on extensive reading of the expansive ECJ caselaw
as introduced in Environmental crimes and Ship source pollution) but mainly as regards
the lack of necessity of such a regulation, is the Commission proposal for a directive on
sanctioning of employers of illegally staying third country nationals45, which includes also the
proposals for criminalizing the employers of third country nationals. This directive (among
44 See, document 10287/07, Brussels, 5 June 2007, Proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union.
45 See, document COM(2007) 249 final Brussels, 16.5.2007, Proposal for a directive of the EP and of the Council providing for sanctions against employers of illegally staying third-country nationals, especially Art. 3, 10 – 13. other objections) seems me to be both contrary to the principle of subsidiarity and proportionality, especially for the lack of a clear justification. It was not explained, if the member states are really not able to tackle the illegal immigration on their own. It was not shown that this proposal might serve its aim (really effective fight against illegal
immigration). No statistics were delivered as regards the so-called secondary flows of illegal
immigrants and so-called “nasty” employers, who are able to “count well” and “run their
business with illegal migrant workers” if not harshly criminalized by the Community.
Proportionality was not considered properly as well (should not it be left up to the member
states to decide on criminal or administrative sanctioning). Also some of the concepts
involved (e.g. exploiting working conditions) could be objected from the point they contradict
the substantive legality principle and other elements for other reasons (proportionality of
criminalizing 4 illegal migrants or repeated employment of illegal migrant workers). Last but
not least the criminal law imperative of ultima ratio was not in my view well observed as
well.46
I will stop here. I just wanted to illustrate, the problems, which occur in the criminal field
nowadays and which may effectively be aggravated if the Lisbon Treaty comes into force.
However, to be fair, it must be remembered that with the Lisbon framework not only qualified
majority comes, but also emergency brakes and enhanced cooperation, as well as somehow
strengthened subsidiarity control exercised by the NPs may be applied. If these brakes were
not inserted in the Lisbon Treaty framework, I would probably argue without any hesitance,
that the new framework creates a dangerous engine, which will produce possibly harmless
(procedural rights) and unnecessary (criminalizing employers of illegal migrants) Union
criminal legislation. Because, the brakes are there, I am cautious to absolutely reject the new
framework. However, I admit, that it is the question, whether these brakes are sufficient,
especially when considered in the whole context, where the ECJ gained the full jurisdiction
over Union criminal matters, The Commission its infringement powers and the
integrationistic-oriented EP gained in principle the equal legislative powers as the Council.
To sum up, the Lisbon treaty does form a kind of risk and a great deal of adventure at the
same time. But maybe the actors will surprise, manage and pass the test somehow. Maybe,
they will not.
46 I had an opportunity to take part in a partly negotiating of this instrument and preparing positions of the Czech republic as well. However, these are my personal remarks and reflections only. See also brilliant critical reflection on the same matter in: Dawes, A., Lynskey, O.: The ever-longer arm of EC law: The extension of Community competence into the field of criminal law. Common Market Law Review, 2008, č. 45, p. 147 – 151 and as regards the possible IP criminal area and competition area, 145 – 147, respectively 151 – 155.
Will the advantages or disadvantages prevail? The result of the play or the whole game will
depend upon many variables. Will the ministers invoke fundamentals of their respective
criminal systems? Will the European Council be able to come to consensus or will it start in
fact enhanced cooperation? Will the enhanced cooperation be exercised? Will those states,
which will abstain resist or be integrated? Will not be then the mutual trust (which seem to be
a fiction in fact nowadays) even more undermined in the multi-speed criminal arena of
enhanced cooperation and more confusing for the law enforcement authorities on the one side
and more attractive for forum-shopping and safe havens-loving criminals on the other side?
Will the NPs boldly take up their roles? Will they raise yellow and orange cards? How will
the Commission and the respective ministers react? And what about the ECJ?
These are the open questions and challenges the Lisbon Treaty brings.
Lets´ come and see. No boring films, no soap operas, are expected. Drama, thriller will come.
Welcome in new “lisbonized” criminal area!
Conclusion
In this paper I focused on describing and analyzing the main developments within the third
pillar of the EU and beyond. I showed, how this intergovernmental pillar and criminal matters
as such have been influenced and subjected to the Community principles, rules and
mechanisms, especially by the expansive ECJ case-law, represented by the judgements such
as Pupino, Environmental Crimes or Ship source pollution. Then I turned my attention to the
novelties introduced by the Lisbon framework in the explored area, both as regards
institutional and functional aspects of the new order, while emphasizing some unique
characteristics newly introduced (emergency brake, enhance cooperation). Finally I tried to
sketch the future advantages, respectively disadvantages and risks of the new order in this
field. I concluded my paper by raising questions as to the future prospects of this area under
the Lisbon Treaty, which represents a true leap into the unknown in this respect.
Literature:
[1] Craig, P., de Búrca, G.: EU Law – Text, Cases and Materials. New York: Oxford
University Press, 2003, s.178- 228; 257-315.
[2] Čakrt, F.: Nástin komunitarizace v rámci III. pilíře. Trestněprávní revue, 2007, č. 1, s.
4 – 12.
[3] Dawes, A., Lynskey, O.: The ever-longer arm of EC law: The extension of
Community comeptence into the field of criminal law. Common Market Law Review,
2008, č. 45, s. 131 – 158.
[4] Kmec, J.: Evropské trestní právo. Mechanismy europeizace trestního práva a vytváření
skutečného evropského trestního práva, Praha: C.H.Beck, 2006, s. 230.
[5] Komárek, J.: „Tentýž čin“ v prostoru svobody, bezpečnosti a práva. Jurisprudence,
2006, č. 3, s. 51 – 57.
[6] Monar, J.: Justice and Home Affairs in the EU Constitutional Treaty. What Added
Value for the ‚Area of Freedom, Security and Justice‘ ? European Constitutional Law
Review, 2005, č. 1, s. 226 – 246.
[7] Peers, S.: Salvation outside the church: Judicial protection in the third pillar after the
Pupino and Segi judgments. Common Market Law Review, 2007, č. 44, s. 883 – 929.
[8] Spaventa, E.: Opening Pandora´s Box: Some reflections on the Constitutional Effects
of the Decision in Pupino. European Constitutional Law Review, 2007, č. 3, s. 5 – 24.
[9] Týč, V.: Působení práva Evropské unie ve sféře českého právního řádu In: Evropský
kontext vývoje českého práva po roce 2004: sborník z workshopu konaného na
Právnické fakultě MU v Brně dne 26.9.2006. 1. vyd. Brno: Masarykova univerzita,
2006, s. 10-28.
[10] Weyembergh, A.: Approximation of criminal laws, the constitutional treaty and
the Hague programme. Common Market Law Review, 2005, č. 42, s. 1567 – 1597.
Case-law of the Court of Justice:
[1] C-105/03, „Pupino,“ 16. 6. 2005
[2] C-176/03, „Environmental crimes,“ 13. 9. 2005
[3] C-440/05, „Ship source pollution,“ 23. 10. 2007
[4] C-355/04 P, „Segi,“ 27. 2. 2007
[5] C-303/05, „European arrest warrant,“ (Advocaten voor de Wereld VZW), 3. 5. 2007
Kontaktní údaje na autora – email:
michael.svarc@volny.cz
Saturday, April 30, 2011
Post Sustainabilty Institute Conference - Behind the Green Mask
The Post Sustainability Institute is hosting the FIRST LA21 sustainable development conference that includes communitarianism in their agenda. I've been thinking about how important this is to the ACL, how it ups the value of what we've presented to the world. I think I need to be there.
So, I'm starting a fund raiser to get me and a case of 2020/TACM to this conference. To sponsor the ACL at the conference please send your donation to me at the addresses on the right. If you have a business and would like to be listed as a sponsor in the ACL brochure, please email me with "ACL ad sponsor" in the subject box.
It's finally open for public debate. Maybe somebody should invite Etzioni.
So, I'm starting a fund raiser to get me and a case of 2020/TACM to this conference. To sponsor the ACL at the conference please send your donation to me at the addresses on the right. If you have a business and would like to be listed as a sponsor in the ACL brochure, please email me with "ACL ad sponsor" in the subject box.
It's finally open for public debate. Maybe somebody should invite Etzioni.
"Our group, The Post Sustainability Institute, is sponsoring a conference called Behind The Green Mask this coming September in Northern California. Topics will range from the basics of UN Agenda 21/Sustainable Development to Communitarianism to implementation programs. We would like to invite you to participate in the conference as a presenter. The conference is tentatively scheduled for Saturday September 3, 2011 in Santa Rosa, Ca.
For more information about us please see our websites:
www.PostSustainabilityInstitute. org
www.DemocratsAgainstUNAgenda21.com
www.SantaRosaNeighborhoodCoalition .com"
Wednesday, April 27, 2011
Stuck in my own dialectic
1:12 scale 20' gets first spring visitors
20' front entryway
deck garden with real plants (until voles ate them all!)
1:12 scale Gertees, 5', 8', 10', 12', 14'
1:12 scale 14' Gertee cook shack, under construction
using cutouts now mixed with 3D pieces
the 14' fits a big woodstove, fridge, counter, shelves & sinkWoke up this morning feeling very strange after dreaming I was writing a new article about the impossibility of ever finding a way to live outside the dialectic. I went back to facebook a few months ago to keep in touch with my family, but seeing how deep people are inside the dialectic is almost more than I can bear.
Spring is always an anxious time for many Alaskans, especially those of us that survive in the winter by working summer jobs. Last year was such a bad one for me, except for my grandsons, so I have to focus on making money now, no matter how many ACL related articles or books I need to be writing. I'm sorry I haven't responded to the wonderful comments I've been getting. Gertee simply has more potential to feed and clothe me, so that's what I have to work on now.
It may be that my life took such a dive when I began "debating" Amitai Etzioni that I am doomed to fail no matter what path I choose. In that case I should probably keep researching and writing for the ACL until I starve or freeze to death. I'm known all over the world now, and a lot of people do respect my work, but many, many more think I'm crazy. In any case, like Connie said, all you have to do is type my last name into a google search and you find me. This limits my regular job options as any potential employer can easily find out a lot about me online.
I've been invited to speak about communitarianism at the Santa Rosa Democrats Post Sustainability Conference in September 2011. It's my first official invitation to speak since the Libertarian Convention in 2000. At this point, I have to decline. I can't afford the ticket down and I really can't go speak in front of anyone without getting false teeth first! It's not a paying engagement but I can certainly bring a bunch of 2020/TACMS along to sell. Maybe I 'm just a dreamer, but I'm hoping Gertee will fund my ACL work, since nothing else does anymore.
Spring is always an anxious time for many Alaskans, especially those of us that survive in the winter by working summer jobs. Last year was such a bad one for me, except for my grandsons, so I have to focus on making money now, no matter how many ACL related articles or books I need to be writing. I'm sorry I haven't responded to the wonderful comments I've been getting. Gertee simply has more potential to feed and clothe me, so that's what I have to work on now.
It may be that my life took such a dive when I began "debating" Amitai Etzioni that I am doomed to fail no matter what path I choose. In that case I should probably keep researching and writing for the ACL until I starve or freeze to death. I'm known all over the world now, and a lot of people do respect my work, but many, many more think I'm crazy. In any case, like Connie said, all you have to do is type my last name into a google search and you find me. This limits my regular job options as any potential employer can easily find out a lot about me online.
I've been invited to speak about communitarianism at the Santa Rosa Democrats Post Sustainability Conference in September 2011. It's my first official invitation to speak since the Libertarian Convention in 2000. At this point, I have to decline. I can't afford the ticket down and I really can't go speak in front of anyone without getting false teeth first! It's not a paying engagement but I can certainly bring a bunch of 2020/TACMS along to sell. Maybe I 'm just a dreamer, but I'm hoping Gertee will fund my ACL work, since nothing else does anymore.
Monday, April 25, 2011
Miniature Yurt Greenhouse 1:12 scale builder's model
Decided to see if there's a market for a mini Gertee Greenhouse.
http://cgi.ebay.com/ws/eBayISAPI.dll?ViewItem&item=110679488972&ssPageName=STRK:MESELX:IT
http://cgi.ebay.com/ws/eBayISAPI.dll?ViewItem&item=110679488972&ssPageName=STRK:MESELX:IT
Sunday, April 17, 2011
The higher purpose of mankind - the world federation of the future
Is the future World Federation a Communitarian federation? It's the only political, social, economic, legal and religious theory that fills the entire bill.
It's the only fully integrated political bureaucracy that is replacing internal legal systems in nations around the world, right now. It's the only all encompassing economic system that claims power over every inch of resources on the planet. It's the only social theory taught at the university level, and the academic curriculum rarely includes criticisms. There is no public debate or voting on community development programs that promote sustainable changes in the U.S. It just is.
Nobody's asking the public whether their government has the power to sign treaties that eliminate individual rights and liberties protected under local, state, and national laws. There is no ongoing public debate over subjecting nations to communitarian supremacy of law. This is astonishing when considering the fact that the Supremacy Clause in the European Union contract is a stated, published Communitarian obligation. It's not astonishing when you consider who controls what the general "masses" see and hear.
Regional governance is built on the Community model. Community, when used by the govt or an NGO, is a codeword for communitarian agencies designed specifically to bypass outdated forms of local governance. Community Development is a program for introducing global communitarian standards, norms and laws. It's called Harmonization of Norms.
So here's the second biggest Q we're not supposed to ask: Does mankind have a higher purpose? Many people hold that it does. Even Friedrich List, who we obviously misunderstood when we wrote the Anti Communitarian Manifesto, included the idea in his 1841 book on national political economy. In the opening chapter, List recommended we not militate against the goal of a future world federation. And, he called it our Common Purpose.
It's the only fully integrated political bureaucracy that is replacing internal legal systems in nations around the world, right now. It's the only all encompassing economic system that claims power over every inch of resources on the planet. It's the only social theory taught at the university level, and the academic curriculum rarely includes criticisms. There is no public debate or voting on community development programs that promote sustainable changes in the U.S. It just is.
Nobody's asking the public whether their government has the power to sign treaties that eliminate individual rights and liberties protected under local, state, and national laws. There is no ongoing public debate over subjecting nations to communitarian supremacy of law. This is astonishing when considering the fact that the Supremacy Clause in the European Union contract is a stated, published Communitarian obligation. It's not astonishing when you consider who controls what the general "masses" see and hear.
Regional governance is built on the Community model. Community, when used by the govt or an NGO, is a codeword for communitarian agencies designed specifically to bypass outdated forms of local governance. Community Development is a program for introducing global communitarian standards, norms and laws. It's called Harmonization of Norms.
So here's the second biggest Q we're not supposed to ask: Does mankind have a higher purpose? Many people hold that it does. Even Friedrich List, who we obviously misunderstood when we wrote the Anti Communitarian Manifesto, included the idea in his 1841 book on national political economy. In the opening chapter, List recommended we not militate against the goal of a future world federation. And, he called it our Common Purpose.
"But this endeavor is legitimate and rational insofar as it furthers the economic development of the nation in question and does not militate against the higher purpose of mankind, -- the world federation of the future." Friedrich List 1841, Selected readings in international trade and tariff problems, edited by Frank William Taussig
As the real and verifiable world trade federation forms, I wonder how much of the emerging "rights" agenda was part of what our economic fathers understood to be part of that glorious world federation they dreamed for us. Our founders are often accused of establishing the U.S. as just another instrument for achieving global domination. There is merit to those accusations.
I don't know if this is the right question to ask, but was it also our founders dream for the Big Idea of an Environmental Ten Commandments? Did the Americans, along with the empires who colonized South America and the ME and Asia and the post Vatican II Catholic Priests all promote the same ultimate future for mankind? Do they now?
It was a sad time for me when I realized how many of the Community Development programs were pouring grant money into tribal coffers across the U.S. Already trained in a life of subsistence living (meaning HUD housing and food stamps), Natives were perfectly prepared tunnels for introducing the idea of Rebuilding Community as a legitimate mission. First the U.S. government reduced the tribes to complete dependents, took away their villages, forbade their religions and languages, and today, because the U.S. "evolved," we are making up for all that.
I don't know if this is the right question to ask, but was it also our founders dream for the Big Idea of an Environmental Ten Commandments? Did the Americans, along with the empires who colonized South America and the ME and Asia and the post Vatican II Catholic Priests all promote the same ultimate future for mankind? Do they now?
It was a sad time for me when I realized how many of the Community Development programs were pouring grant money into tribal coffers across the U.S. Already trained in a life of subsistence living (meaning HUD housing and food stamps), Natives were perfectly prepared tunnels for introducing the idea of Rebuilding Community as a legitimate mission. First the U.S. government reduced the tribes to complete dependents, took away their villages, forbade their religions and languages, and today, because the U.S. "evolved," we are making up for all that.
'Mother Earth' to be given same rights as humans under UN plan,
By Catherine Eade 12th April 2011
Niki's comments in brackets, in redBolivia is drawing up a draft UN treaty which would give Mother Earth the same rights as humans, including the right to life, to pure water and clean air.
{UN human rights include safe and affordable housing and social equity. Would this concept give Big Mother the right to sue the sun, the moon, rouge planets and falling meteorites in the future Universal Court?}
The South American country wants the UN to recognize the Earth as a living entity that humans have sought to 'dominate and exploit'.
{Again, with communitarian "rights" come communitarian responsibilities, so does this mean humans can sue Big Mother for unleashing hurricanes, tsunamis, volcanic eruptions, earthquakes, droughts and other violent acts against humans?}
It aims to establish 11 new rights for nature which include: the right to life and to exist; the right to continue vital cycles and processes free from human alteration; the right to pure water and clean air; the right to balance; the right not to be polluted; and the right to not have cellular structure modified or genetically altered.
{Communitarian "logic" knows no bounds.}
Bolivia's large indigenous population is ruled by Latin America's first indigenous president Evo Morales, who was elected in 2006.
{Bolivia is an openly Communitarian State: http://boliviarising.blogspot.com/2007/06/for-united-plurinational-communitarian.html}
Morales is an outspoken critic in the UN of countries which are not prepared to limit climate change by holding temperatures to a 1C rise.
{Chastisement is called "soft communitarianism", it seeks to shame the accused to comply. The next natural and globally harmonious step is hard communitarianism.}
Bolivia's ambassador to the UN, Pablo Salon, says his country seeks to achieve harmony with nature, and hinted that mining and other companies would come under greater scrutiny.
{Big Mother is watching you.}
http://www.dailymail.co.uk/news/article-1376244/South-American-countrys-treaty-giving-Mother-Earth-rights-citizens.html
This proposed treaty ties in very nicely with the objectives of the communitarian organizations active in my neck of the world. School of the Earth, WISE, the Copper River Watershed Org, the Wellwood Center, the studies of our watersheds and creeks, all adhere to the ideology of the "Salmon Nation" and eliminating all borders between people who live on salmon rivers! And their parent UN Biosphere regional expert NGO, Eco Trust, has it's hand in every pie out here.
What environmental standards are taught to youth trained to become young stewards of the earth? What perfect harmony is prayed for in public schools on Earth Day? What "god" does your child worship in school? Only the "enlightened" ones among us can comprehend it.
I like the wikipedia page called "World Government". It clarifies between the real information as opposed to the wiki page entitled "The New World Order," which is relegated to conspiracy theory. World Government is real, the New World Order is conspiracy theory. haha
What environmental standards are taught to youth trained to become young stewards of the earth? What perfect harmony is prayed for in public schools on Earth Day? What "god" does your child worship in school? Only the "enlightened" ones among us can comprehend it.
I like the wikipedia page called "World Government". It clarifies between the real information as opposed to the wiki page entitled "The New World Order," which is relegated to conspiracy theory. World Government is real, the New World Order is conspiracy theory. haha
Global map showing some supranational unions"The only union generally recognized as having achieved the
status of a supranational union is the European Union.[11]
"The most relevant model for the incremental establishment
of a global federation may be the European Union, "
"Ulysses S. Grant commented, "I believe at some future day, the nations of the earth will agree on some sort of congress which will take cognizance of international questions of difficulty and whose decisions will be as binding as the decisions of the Supreme Court are upon us."[2]" http://en.wikipedia.org/wiki/World_government
U.S. President Harry Truman commented: "We must make the United Nations continue to work, and to be a going concern, to see that difficulties between nations may be settled just as we settle difficulties between States here in the United States. When Kansas and Colorado fall out over the waters in the Arkansas River, they don't go to war over it, they go to the Supreme Court of the United States, and the matter is settled in a just and honorable way. There is not a difficulty in the whole world that cannot be settled in exactly the same way in a world court." -- President Truman's remarks in Omaha, Nebraska on June 5, 1948, at the dedication of the War Memorial [3] http://en.wikipedia.org/wiki/World_government
The World Futures Studies Federation emerged from the ideas and pioneering work of such persons as Igor Bestuzhev-Lada (Russia), Bertrand de Jouvenel (France, 1903-1987), Johan Galtung (Norway), Robert Jungk (Austria 1913-1994), John McHale (UK/USA, 1922-1978) and others who in the 1960s conceived of the concept of futures studies at the global level. This resulted in the organization of the first International Futures Research Conference in Oslo, Norway, in September 1967, for which Mankind 2000 was responsible in cooperation with the International Peace Research Institute, Oslo, and the Institut für Zukunftsfragen. A Continuing Committee was created, with headquarters in Paris.http://www.wfsf.org/There are regular conferences:
WELCOME TO TAMPERE IN JUNE 2011!And there's more than one religious angle:
The 13th International Conference organized by Finland Futures Research Centre and Finland Futures Academy at University of Turku will deal with the different dimensions of a sustainable future.
Sustainable development is an important theme in local, regional and global scales and requires multidisciplinary and cross-sectoral cooperation. Environmentally, socially and economically sustainable development can only be achieved by encouraging knowledge sharing and cooperation between various sectors and decision makers. The decision made today shapes our future.
The methods of futures studies include tools for describing possible, probable and desirable variations of the present and drafting possible images of the future. By looking at the variety of different possibilities, we can come closer to shaping the future – rather than predicting it. Future studies offer valuable tools to understand and shape the development of our societies. This conference aims to bring together the best experts from the fields of Futures Studies and Sustainable Development and let the scientific community to interact with policymakers and representatives of companies. By developing images of alternative futures, the goal of the conference is to give new viewpoints and novel ideas to decision-makers to assist them towards more feasible decisions and a sustainable development. http://conference2011.wordpress.com/
‘Work for your life as though you will live forever, and work for the Hereafter as though you will die tomorrow.’ The Holy Prophet (S)
"On the blessed occasion of the Wiladat of Sayyida Fatima (SA), The World Federation of KSIMC is pleased to announce the re-launch of the MULLA ASGHAR FOUNDATION FUND. This gift programme has been named after Marhum Mulla Asgharali M.M. Jaffer as a tribute to his dream which was to see the success of this fund benefitting the vision and mission of The World Federation of KSIMC." http://www.world-federation.org/Secretariat/Articles/Mulla_Asghar_Foundation_Fund_planning_our_future_as_community.htm
It is our non credentialed ACL thesis that communitarianism is the ultimate, final synthesis in the Hegelian dialectic. Another perfectly valid theory has arisen that communitarianism is just another phase, and that Transcendence, as taught by the Master Illuminated ones, is the final objective. (See Bobby Garner's treatment of this subject).
Whatever it ends up being, the final synthesis is supposed to be so "perfect" it will give rise to no opposition. The ACL was used by us to prove communitarianism is not perfect, and the fact that we even objected to it meant their whole dialectically based "conclusion" was flawed. It also, by default, made our work another side in a dialectical argument. Has humanity advanced to the next stage of forced evolution? If we are indeed moving into the next dialectical stage of human social evolution, then it's time to reassess the ACL "mission.' One thing is certain. The Communitarian stage of evolution is here, now. So if there is a next stage, Transcendence is next.
Over a decade has passed since I began attempting to think outside the dialectic. I know there are still parts of me that cling to dialectical tricks, and it's hard to feel very smart when some of them have been right in front of your "critical gaze" for a long time. I've learned so much more about the plan for global governance over the years. I really should do a complete revision and update of the Manifesto, maybe even add a political or social agenda of our own to the mix!
Whatever it ends up being, the final synthesis is supposed to be so "perfect" it will give rise to no opposition. The ACL was used by us to prove communitarianism is not perfect, and the fact that we even objected to it meant their whole dialectically based "conclusion" was flawed. It also, by default, made our work another side in a dialectical argument. Has humanity advanced to the next stage of forced evolution? If we are indeed moving into the next dialectical stage of human social evolution, then it's time to reassess the ACL "mission.' One thing is certain. The Communitarian stage of evolution is here, now. So if there is a next stage, Transcendence is next.
Over a decade has passed since I began attempting to think outside the dialectic. I know there are still parts of me that cling to dialectical tricks, and it's hard to feel very smart when some of them have been right in front of your "critical gaze" for a long time. I've learned so much more about the plan for global governance over the years. I really should do a complete revision and update of the Manifesto, maybe even add a political or social agenda of our own to the mix!
Thursday, April 14, 2011
ACL - Communitarian Law Research
Here's the old ACL topic page I'm revising and updating first. Obviously, I've got my work cut out for me. Good thing I don't have anything else more pressing or more important to do in my life, since this page was the only free communitarian law research available online. We were the only place in the world that was following and listing references to the communitarian legal system, including the schools, training, case law, legislation, regulations, treaties and "solutions" implemented across the globe, and one that did not focus only on how it affects the USA.
As an American, I warned the American people in my CAFTA EU Communitarian Law article that many countries, including our own, were training lawyers to implement communitarian changes to internal legal structures. I listed law schools and gave the names of people involved in the training programs. It made the rounds and died out, just as anything that explains communitarianism does. It's crazy that I'm still having to defend my work from accusations that I made it all up or it's my "personal pet peeve." Regardless of how easily and deftly leading right American "patriots" and their brothers and sisters on the "left" sweep it under the rug, it remains the most important topic the world has ever faced. Oh right, I'm sorry, I do understand what's important... so what kind of shoes does Scarlett Johansen wear when she goes jogging?
Bolivia has one of the first openly revised communitarian constitution that was adopted by popular vote. Today their communitarian president is the leading advocate for regional government protections of the Earth, which, under communitarian "victim rights" ideology has advanced into "victim" status. This gives the NH State motto "Don't Tread On Me" a whole new meaning! http://www.dailymail.co.uk/news/article-1376244/South-American-countrys-treaty-giving-Mother-Earth-rights-citizens.html
Your suggestions on how I might revise this page are welcomed and will help a lot. And yes, I already see how many misspelled words are in this!
As an American, I warned the American people in my CAFTA EU Communitarian Law article that many countries, including our own, were training lawyers to implement communitarian changes to internal legal structures. I listed law schools and gave the names of people involved in the training programs. It made the rounds and died out, just as anything that explains communitarianism does. It's crazy that I'm still having to defend my work from accusations that I made it all up or it's my "personal pet peeve." Regardless of how easily and deftly leading right American "patriots" and their brothers and sisters on the "left" sweep it under the rug, it remains the most important topic the world has ever faced. Oh right, I'm sorry, I do understand what's important... so what kind of shoes does Scarlett Johansen wear when she goes jogging?
Bolivia has one of the first openly revised communitarian constitution that was adopted by popular vote. Today their communitarian president is the leading advocate for regional government protections of the Earth, which, under communitarian "victim rights" ideology has advanced into "victim" status. This gives the NH State motto "Don't Tread On Me" a whole new meaning! http://www.dailymail.co.uk/news/article-1376244/South-American-countrys-treaty-giving-Mother-Earth-rights-citizens.html
Your suggestions on how I might revise this page are welcomed and will help a lot. And yes, I already see how many misspelled words are in this!
|
 Communitarian Law and European Community Law : Individual & National Sovereignty versus the Collective Goodby Niki Raapana, April 2003. Revised March 21, 2006.
Table of ContentsIntroductory Quotes 1. What is Communitarian Law? 2. International Communitarian Juridcial Systems 3. What is "Divided Sovereignty"? 4. Who is Pierre Pescatore? 5. What are "Competences"? 6. Definition of "Community Aquis" 7. Why Study Communitarian Law? 8. Who's Teaching It? 9. Who Supports It? 10. Communitarian Chinese Case Law Appendix Introductory Quotes
What is Communitarian Law?
International Communitarian Juridical Systems
implies that States Members have to make political and legal internal reforms." pdf-NAFTA and the EU I've been studying the above quoted document. I'd like to write an article about it. To anyone who has access to the propsed Andean Parliment papers, models for integration, copies of the complaints of elitist origins, a list of all the U.S. Congressmen who voted for CAFTA up for re-election in Nov 2006, anti-communitarian papers or poltical parties that convinced a majority of Dutch and French voters to reject the European Constition in 2005, or any other relevant study materials: please help further our education in this topic. Click the contact link above and email me for where to snail mail hard copies. "Finding the Law: the Micro-States and Small Jurisdictions of Europe: Andorra, Cyprus, Northern Cyprus, Iceland, Liechtenstein, Luxembourg, Malta, Monaco, Montenegro, San Marino, Vatican State; UK European dependencies: Channel Islands, Gibraltar, Isle of Man; Faroe Islands and Greenland" by Andrew Grossman, Hauser Global Law School Program, Published February 2005. This paper includes "General Sources, Common to More than One of the Jurisdictions under Study." The European Union and other supranational authorities require national constitutions to be restructured so that they conform to communitarian rule of law. Integration to the EU and Economic Transformation: State and Its Role on the Example of the Export-Promoting Policy by Marek Csabay Presentation by Dr Jan Mazak, President of the Slovak Constitutional Court 21.10.2004. Professor J?n Maz?k, PhD. President, Constitutional Court of the Slovak Republic general remarks on "National judiciary after the accession of the Slovak Republic to the European Union" as follows:
NAFTA and the EU's paper tells us Tremolada, Eric (Universidad Externado de Colombia) is the principle lecturer of the Jean Monnet Class on European Communitarian Law (designated by the European Commission of the European Union in 2005). Universidad Rey Juan Carlos Law Program includes in year 3 "Institutions of Communitarian Law (C)". University of Oradea Faculty of Law and Jurisprudence offers a post-graduate degree in Communitarian Law. Simona Zah, 21, a former law student at the University of Bucharest was the best graduate student in a special course on "International, comparative and communitarian law" at the University of Strasbourg, in 2001. From Aquamont to Berlaymont: On the Integration-Friendly Features of the Slovak Constitution by RADOSLAV PROCH?ZKA. Sari Kouvo, born 1971, is a researcher and lecturer in international law with a focus on human rights and in gender and law at the Department of Law. She attended "What are They Doing? Gender Mainstreaming in International Human Rights?, Gender and Communitarian Law Workshop, Onati International Institute for the Sociology of Law, Spain (2000). "For the aim of European law study on Master level, the curriculum and share of lessons has been added and made deeper - it is not only specialization for the area of justice and internal affairs but also the basis of wider general theory mainly of the European communitarian law, history questions and EU genesis, new EU legal institutes as joint investigation teams, Eurojust, or European warrant of arrest, etc." EDUCATION IN EUROPEAN LAW AT THE POLICE ACADEMY OF THE CZECH REPUBLIC. Regionalism and Constitutionalism in an Enlarged EU, A pan-European project by WiRE in collaboration with academic partners throughout Europe to investigate the situation of the regions in the context of the emerging EU constitution list of participants includes Prof. Daria de Pretis. "Daria de Pretis is a Professor of Administrative Law at the Universit? di Trento in Italy. Her main areas of interest include communitarian law; administrative action; the legal principle of discretionary powers and administrative justice in Italy and Europe. In 2004 she published La Tutela Giurisdizionale Amministrativa in Europa fra Integrazione e Diversit? on the subject of advimistrative law in a Europe of integration and diversity." Michael Coester (Professor, Munich University): "The Law on Terms of Contract in Conflicting Relationship between German and European Communitarian Law" ("Das Recht der Allgemeinen Geschaftsbedingungen im Spannungsfeld zwischen deutschem Recht und europaischem Gemeinschaftsrecht") Discussant: Hiroshi Kochi (Professor, Kyushu University) Kyushu University Faculty of Law and Ludwig-Maximilian University (Munich) Law Faculty's Joint Research Program s MO??O AO PJ -ENGLISH VERSION, a Portugese blogger explains the need for European integration and The European Youth Parliament, which "Emphasizes the network cooperation agreements, the policy of aid to the development and the pratice of strong positions in the various international organizations (UN, NATO, WTO). 2. Reaffirms the EU personality through the supremacy of the communitarian law above the national law. 3. Endows the EU of the means to proceed, through evolution and commitment towards an improved economic and social cohesion. 4. Requests the reinforcement of the communitarian budget as to allow the sustainable development of the weaker economies." INTERNATIONAL CONFERENCE Achievements in the field of human rights ten years after Dayton, Sarajevo, 10 and 11 May 2005. "By implementing the Agreement, BiH {Bosnia and Herzegovina} will be able to apply for full membership of the EU. The negotiations for membership will be the most complex task and the greatest challenge, which will lead to the most profound reforms. Institutional capacities, which are necessary for successful negotiations on full membership, adoption and application of the whole European legislation, will finally result in the number of around 15 state ministries and around a hundred agencies, offices with the purpose of strengthening democracy, strengthening of export capacities, oversight of the market, environment protection, etc. The number of entity or cantonal competences will be reduced significantly. All these formal steps will be followed by considerable reforms in the judiciary, internal affairs, defence, economy, etc. Finally, BiH will transfer a share of its sovereignty to the European Community for supremacy of communitarian law and its application in all EU member states. ESI analysts think that it is impossible for BiH to start negotiations for full membership before 2007. Inicio UCH-CEU Fundaci?n USP-CEU Univerisidad Cardenal Herrera-English version. Seminars include a course on "The General Principles of the Law in the European Communitarian Law." Italian s-tiles explains: "The Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control was implemented in Italy under Government Bill D.Lgs n. 372 of 4 August 1999. Currently, it is applied specifically to existing plants, as defined under Annex I, Article 41 of Communitarian Law* 2001 (1 March 2002, No. 39), but with the provision for the Government to extend the IPPC to new and modified plants, as well, within a period of 1 year. *A law ratified by the Government yearly on 31 January, which includes the norms for adopting EU law within the Italian legal system." Aquamedia's International Relations in Water Management claims, "By adopting the WFD, the communitarian law in the European Union reached its top in the area of waters, the former solution of individual problems regulated by the relevant directives has changed into to complex approach in protection and exploitation of waters." International Conferences and Seminars tells us Marco Balboni is a Prof. of Communitarian Law at the University of Bologna. Here's one of his courses in Italian. Araceli Mangas Mart?n Professor of International Public Law and International Relations, Universidad de Salamanca since 1986 was also Professor ?Jean Monnet? of Communitarian Law by the European Communities Commission in 1991. She wrote - ?European Communitarian Law and Spanish Law?, Madrid, Ed. Tecnos, 2nd ed, 1987 Why is there nothing online about the Jean Monnet Class on European Communitarian Law except for one reference to it in NAFTA and the E.U. -- Institucional Contrast at http://72.14.203.104/search?q=cache:r5s0jdmFPPYJ:www.miami.edu/eucenter/Conference_Nov4.pdf+Communitarian+Law&hl=en? The Jean Monnet Program at the New York University School of Law has nothing describing what a Professor 'Jean Monnet' of Communitarian Law teaches. Wikpedia-Jean Monnet explains Monnet is credited as the "architect of European Unity." (This is very interesting since so little information is circulated about communitarian law and the primary source for communitarian law is the EU.) Jose Antonio Sanchez Quintanilla is the Secretary General of the IDAE. He is Bachelor in Law (specialty in Public Law) by the University of Seville having a diploma in European Communitarian Law by the same University. He is civil employee of the Upper Corporation of Civilian Administrations of the State, from 1989. Among other functions, he has been Adviser and later on Director of the Secretary of State of Scientific and Technological Policy Office in the Ministry of Science and Technology, being this its last position carried out until its incorporation to the IDAE. Jose Antonio Sanchez Quintanilla has wide experience within the Public Administration in Organization and administrative procedures, Administrative hiring, Management of human resources and elaboration of dispositions of legal and obligatory rank. Manuel Estella Hoyos - President the Courts of Castila and Leon Born : in 1939, in Salamanca. Education / Profession : BL (Law) from the University of Salamanca in 1962. Majored in matters related to European Communitarian Law in 1985, 86 and 87. "Marco Polo System geie is a structure of Communitarian law instituted by the Municipality of Venice together with the Union of the Municipalities and the Communities of Greece (K.E.D.K.E.)." MARCO POLO SYSTEM GEIE AALS: 2005 Annual Meeting Wednesday, January 5, 2005, 2:00 - 3:45 p.m. Hilton San Francisco, Yosemite B, Ballroom Level. Section on Law and Communitarian Studies Moderator(s): Thomas D. Morgan, The George Washington University Law School. Speaker(s): Amitai Etzioni, The George Washington University Inst. for Communitarian Policy Studies; Karen Musalo, University of California, Hastings, College of the Law. A contemporary way of understanding the meaning of the Constitution by Raul Narits, at Juridica International, pp. 466-472 Summary: "Legal theory is directed at the correct understanding of law. The aim is to understand law in its integrity for which legal theory has developed a set of broad-based means. Understanding of the national legal system should rely on the uniformity of the legal system and the Constitution. The author introduces the reader to the main principles of communitarianism as one of the possible means allowing to understand the Constitution. The author outlines the characteristic features of conservative, liberal and egalitarian theories of communitarianism, and provides an in-depth analysis of the communitarianist constitutional theory based on the principles of liberal communitarianism." Plan to study communitarian law? Join 1,965 subscribers on the list for communitarian law : commlaw@hermes.gwu.edu:
20 April 2001, Copenhagen - From the Ministry of Foreign Affairs of the Republic of Lithuana. Statement by Dr. Dalia Grybauskaite, Deputy Minister of Foreign Affairs, Candidate Countries Opinion Concerning the Future of the EU :
20 October, 2003 - The significance of the transatlantic bonds in the time of the entry of the Czech Republic into EU Print Mail by Mirek Topolanek. Quote: "Recently, the Intergovernmental Conference has started with a summit in Rome, with the number one task: adopting of a European Union Constitution ? a document that can significantly influence the nature of the ?old continent? and consequently also its relations with the US. It can result in a huge European ?super-state?, where most of the power is given to the bureaucrats in Brussels, or we will manage to keep the EU as a partnership of independent states that cooperate in areas where it?s advantageous. Unfortunately the submitted draft of the constitution was not created by any ?Founding Fathers? but by the European Convent with a majority vote of socialist and euro-federalist parties. It moves us towards the European ?super-state? founded on quite doubtful basis./ As a result of post-war development, expensive redistribution and bureaucratic processes became typical for European countries, along with the burden of the so-called social state and collective demands for what were called group rights. All of these are taken as specific European values. But in present global economic competition these phenomena decrease the competitiveness and restrain the economic growth. The common market is bound with thousands of pages of regulations of rapidly growing communitarian law, which are for the most part products of various lobby and corporate bodies. They are not so much about the reaching declared high standards, but more as a protectionist weapon against the foreign competition of European market. By doing so, Europe is really closing itself from global market than the opposite." From the American Enterprise Institute. The International Legal Regime Hauser Global Law Program at NYU teaches the "Code de r?daction interinstitutionnel" (communitarian law) The Training Strategy for Civil Servants on EU Affaires from the Serbia and Montengro European Integration Office trains: " ?Harmonizators?- law experts that will have to be well acquainted with the structure of communitarian law, type and nature of the EU decisions and models of their implementation into the national legislature." (The page with this original text disappeared, now it doesn't say the term communitarian law it says: "The lecturer was a Slovenian expert in the harmonisation of national legislation with the acquis communautaire.") www.arena.uio.no INTERNATIONAL CONFERENCE Achievements in the field of human rights ten years after Dayton Sarajevo, 10 and 11 May 2005: "Finally, BiH will transfer a share of its sovereignty to the European Community for supremacy of communitarian law and its application in all EU member states. ESI analysts think that it is impossible for BiH to start negotiations for full membership before 2007." www.worldvideobusiness.com. In this area I.M.P.R.E.S.A. S.p.A. intends to offer on line consulting services in the field of Labour Communitarian Law. Fellowship Training Programme in International Law for French-Speaking African Countries (in French) Institut des Relations Internationales du Cameroun (IRIC) Yaound?, Cameroon, 7 ? 18 January 2002: "In cooperation with the camerooninan Ministry of Foreign Affairs, the Centre of Studies and Research of International and Communitarian Law (CEDIC), Yaound?, and the University of Yaound? II, the United Nations Office of Legal Affairs and UNITAR jointly organized a two-week training for 22 participants from different French-Speaking African countries (16 fellowship recipients and 6 trainees from the host country), including junior and mid-level government officials as well as representatives from law faculties of universities." College of Europe, Professor Sylvie GOULARD: Sylvie Goulard is at the moment launching a new think tank "Europhilia" based in Sciences Po (Paris) where she will be active as a codirector with Olivier Duhamel (former French MEP). From 2001 to the summer 2004, she was a member of the group of political counsellors at the Commission where she integrated the team responsible for the follow-up of the Convention. She started her career as Foreign Affairs counsellor first at the legal department of the "Quai d'Orsay" (communitarian law and negotiations concerning the unification of Germany) and was then detached to the "Conseil d'Etat" in Paris. Furthermore, she has been in charge of the multilateral questions and the French-German projects in the "centre de prospective" of the French Ministry of Foreign Affairs. Sylvie Goulard remains an associated researcher at the CERI of Sciences Po. She has also taught European integration at Sciences Po (Paris). She is part of the national board of the French Mouvement Europ?en, member of the scientific directory of the Institut f?r Europ?ische Politik (Berlin), of the conseil d'administration d'Europartenaires (Paris) and of the Beirat of the BBI in Genshagen (Germany). Working Group on Internet Governance (WGIG) issued a final report on UN control over the internet. American Senators object, SENATOR DENOUNCES REPORT CALLING FOR UN GLOBAL INTERNET CONTROL Mon Aug 01 2005. The Internet Corporation For Assigned Names and Numbers was one of the WGIG funders. V. The Politics of International Law. The European Journal Of International Law explains the Hegelian dilemma between Sovereign Law and communitarian law. The European Union and the General International Law explains how the Communitarian Juridical Order "divides" sovereignity. It uses Hegel as an example of the abstract, traditional, almost metaphyiscal concept of national sovereignity, and it gives us an example of communitarian case law precedents:
What is divided sovereignty? Divided sovereignty at Britannica:"
Conservatism, centralization, and constitutional federalism in Modern Age, Wntr-Spring, 2004 by George W. Carey traces the roots of the divided sovereignty concept back to Madison and Hamilton. Why Joseph Sobran Is Wrong About The Civil War is a very nice historical lesson on the importance of discussing the sovereignty issue. Give Democracy a Chance The Iraqis' choice. By Andrew Peyton Thomas May 20, 2004, National Review. Thomas calls divided sovereignty the " imprecise term of the moment." Russia, Government, Putin Power Grab emails archived by Johnson's Russia List. The Failure of Dual Sovereignty: The British Empire and the United States by Kevin A. Carson. The "Unsettled Paradox": The Internet, the State, and the Consent of the Governed Indiana J. Global Legal Studies 521 (1998) by David G. Post Temple University School of Law and Cyberspace Law Institute(1) Who is Pierre Pescatore? The following papers all relate to Pierre Pescatore (the first one to develop the idea of the division of sovereignty, surpassing the concept of sovereignty expressed by the International Court of Justice in the famous Wimbledon Case): pdf-The Other Side of the Story: An Unpopular Essay on the Making of the European Community Legal Order. The European Court of Justice Is an International Court by J. Allain1(1)Department of Political Science, The American University in Cairo, Egypt. In re REZNIKOV, Judgment 1249, THE ADMINISTRATIVE TRIBUNAL at the International Labor Organization 1993. A Research Guide to International Investment Law Prepared by Wei Luo, Director of Technical Services and Lecturer in Law, Washington University School of Law Library, e-mail: luo@law.wustl.edu,; office phone: 935-8045.(For Professor Mutharika's International Investment Law Seminar)Last Updated in April 2005. Support for Improvement in Government and Management in Central and Eastern European Countries. What are COMPETENCES? From Merriam Webster online: Main Entry: com?pe?tence Pronunciation: 'k?m-p&-t&n(t)s Function: noun 1 : a sufficiency of means for the necessities and conveniences of life 2 : the quality or state of being competent : as a : the properties of an embryonic field that enable it to respond in a characteristic manner to an organizer b : readiness of bacteria to undergo genetic transformation 3 : the knowledge that enables a person to speak and understand a language -- compare PERFORMANCE The following papers all use the term "competences." Does it mean something else in Europe? Draft Treaty establishing a constitution for Europe: Article 9: Fundamental principles
Competences defined at the DSM Sustainablity glossary:
4. The European Union as an Emerging Federal System Jean Monet Center, NYU School of Law. What is community aquis? In April 2003 the European Union was working on its draft constitution. Their site has a glossary that defines ALL the modern terminology that has "evolved" over the past 30 years. This is the first dictionary of the legal meanings of the new terms we've seen. Here is the global definition of "community law:" Community Acquis. For those who don't take the link, Community acquis is:
Why Study Communitarian Law? Comparative Avenues in Constitutional Law June 2004 University of Texas Law Journal Viven A. Schmidt, "The New World Order, Incorporated: The Rise of Business and the Decline of the Nation State," Daedalus, Vol. 124, no. 2 (Spring 1995) academic paper posted at Mt Holyoke.edu. New Arrivals in the Law Library... June 2004 at Indiana University School of Law. The founder of American communitarianism, Amitai Etzioni's, recently published From Empire to Community is on this list. BANDED CONTRACTS, MEDIATING INSTITUTIONS, AND CORPORATE GOVERNANCE: A NATURALIST ANALYSIS OF CONTRACTUAL THEORIES OF THE FIRM by TIMOTHY L. FORT* AND JAMES J. NOONE, Cited: 62 Law & Contemp. Probs. 163 (Summer 1999) [*pg 163] Duke Law Journal. "Part IV addresses the social contractarian approach. Combined with Part II's understanding of evolution and nature, a constructive model emerges that takes the best features of social contracting and agency contracting and blends them with a naturalist-based communitarianism." The World Summit on the Information Society (WSIS) 16-18 November, 2005 "In the second phase of WSIS efforts are being made to put the Plan of Action into motion and working groups have been set up to find solutions and reach agreements in the fields of Internet governance and financing mechanisms." The Politics of International Law by the Academy of European Law online."The law aims to fulfil its double task by becoming formal: by endorsing neither particular communitarian ideals nor particular sovereign policies." Deborah Charles Publications Abstracts' Library Authors K is a nice introduction to Hegelian thinking about the law. Communitarian Corporate Law, "Globalisation of Corporate Regulation and Corporate Citizenship." Many people who teach, preach, and enforce communitarian law in the United States have never heard of communitarian law. (How's that for deliberately dumbed down Americans?) The world desperately needs lawyers and laymen who comprehend all facets of the new communitarian legislation and law. The European Union recognises, teaches, practices and endorses Community Law. U.N. Declarations like the Earth Charter are all communitarian documents. Accredited American law schools that teach communitarian law in their classes, publish Communitarian Legal Readers, or host communitarian law seminars at their colleges refuse to respond or discuss communitarian law with peons like us. We've tried for years to find one American lawyer to admit communitarian law exists. We found one that ceased operations, The Wallace Institute. I worked with attorneys Margaret Boyle and Jose Vera for two years on the Dawson case and we never once discussed it, even though the Dawson lawsuit was a 4th Amendment complaint against a DOJ pilot test of communitarian law enforcement proceedures. The Dawson clients were also a human subjects research project in 1999, for the 2002 Homeland Security Agency and for the National ID database, all highly recommended in the 2004 9-11 Commission Report. Understanding communitarian law is obviously confined to elite groups who work to "Rebuild the World" under communitarian values. The people most affected by it, the ones who suffer under it, are never taught what it is. American lawyers just plain ignore it. There is not one single American alternative "law teacher" who will discuss communitarian law. We don't appear to have anyone besides Dr. Kelly Ross, Ph.d., Jeri Lynn Ball, Joan Veon, Devvy Kidd, Charlotte Iserbyt, Chris Gerner, Detective Philip Worts, Berit Kjos and the occasional unknown writers like us who are willing to mention it. American law schools ignore ACL requests for a rebuttal to our manifesto against communitarian law (although some do offer us "good luck" with our "project.") No one will dispute our philosopical or historical objections either, and political sites refuse to add the Third Way communitarian agenda to their news topic lists. It's the most important and least discussed topic in the entire world. Far too many Americans think it's a conspiracy theory. Liudvikas Bukys Weblog regarding topics of interest to me: system architecture, high performance computing, policy and law, security, software development, web applications. Bukys' weblog is like a historical overview of cybercrime developments. The most incredible thing is, thousands of Americans are charged and sentenced to jail and prisons for violations of community law every day. All new intervention and prevention programs required under Congressional Acts (such as the Violent Crime Act, Domestic Violence Act, Patriot Act, National Intelligence Reform Act, Homeland Security Act, etc. are based in communitarian legal philosophy. Communitarian "values" justify all wars on inanimate objects too, such as the War on Terror and The Wars on Drugs, Poverty, Crime, Obesity, and any other "idea" we can be convinced to support. The reason so many more Americans lose and go to jail now is because they are defending themselves against communitarian law with U.S. Constitutional law. Powerful communitarian laws over-rule (balance) constitutional law in every nation. The Sovereignty movement (which studies ways to return American liberty principles via offshore and foreign banking protections) faces the same predicament. No property in the world is protected from communitarian equitable distribution programs. Communitarian law is global law. Community law enforces equitable distribution of wealth (property). It will be fully implemented by 2020, and it's also called Region 2020. HUD's mapping database was called Community 2020. Free Legal-dictionary-definition of "community" University of South Dakota definition of "community." A Definition of Community Service by the University of Missouri. The ABC of Community Law by Dr Klaus-Dieter Borchardt at EUR-Lex. The Communitarian Network Bibliography of Law and Communitarian Thinking. A Communitarian Republic's Communitarian Code of Ordinances and Regulations. So called communitarian law is openly taught and passed in the European Union. In the U.S. it is quietly taught in elite seminars, and widely adopted inside land management plans. The ACL library would really appreciate hardcopy donations of communitarian law books, and we have given up seeking a constitutional law firm with attorneys who have courtroom experience in defending individuals against communitarian law. Not even the so-called American Freedom Movement has a clue what it is. In fact, much of the American "alternative" research is totally duped by communitarian policies and rhetoric. Even more sad, many American "patriots" actually support communitarian programs that undermine the constitutional laws they claim to defend. Communitarian law is the most succesful con job in the history of the modern world. The ACL may have "won" the debate against the bogus communitarian ideology, but the American people have definately lost their constitution anyway, because they missed the most important debate in the history of the United States. That's mainly because it was held quietly, in small gatherings of like-minded individuals. The citizens never write these news laws by themselves. Community police and sustainable developers teach the new law. Community change agents gather the data necessary to enforce the new law. COMPASS and Community Policing assist communitarian visionaries to implement the Community Imperial Laws. Who's teaching communitarian law? THE PURPOSES AND ACCOUNTABILITY OF THE CORPORATION IN CONTEMPORARY SOCIETY: CORPORATE GOVERNANCE AT A CROSSROADS by MICHAEL BRADLEY,* CINDY A. SCHIPANI,** ANANT K. SUNDARAM,*** AND JAMES P. WALSH**** posted by Duke Law:
The Univeristy of Virginia hosts a Universitas 21 Global Graduate Programs for Global Leaders. Judge Calabresi Awarded Thomas Jefferson Memorial Foundation Medal in Law, University of Virginia Law School. "In addition to addressing first year students of property and engaging in numerous informal encounters with faculty and students, Judge Calabresi delivered a public lecture on "Liberte, egalite, fraternite." Calabresi's lecture explored a fundamental problem of constitutional law, how to prevent majoritarian legislatures from interfering with individual liberties in the name of communitarian values ("fraternite")." Phil 101: Social and Political Philosophy at University of Viginia at Wise. Kluwer Academic Publishers-Law and Philosophy, An International Journal for Jurisprudence and Legal Philosophy. I found this under "conflict theory." Georgetown University Law Center-Law Library-Foreign Law (Intl.) Law and Community: the Case of Torts. "Cochran (Pepperdine University School of Law) and Ackerman (Pennsylvania State University's Dickinson School of Law) consider the possibilities of a communitarian tort system. In so doing they discuss communitarian principles, offer an intermediate communitarian perspective of tort law, and discuss the roles of families, religious communities, and the larger community. Annotation ?2004 Book News, Inc., Portland, OR (booknews.com)." Social Justice (Ethics) Community. Law-books.org features communitarian books by Amitai Etzioni. National Constitutions, Foreign Trade Policy and European Community Law posted by The European Journal of International Law, this is a wonderful explanation of the difference between the original U.S. system and Englands'. II. Constitutional Law and Transnational Exercise of Individual Rights: Freedom of Transnational Trade as an Individual Right?
Indiana University School of Law has Law, Morality and Community Seminar; Harvard's Center for Public Leadership offers Communitarian Themes in Social Policy and Institutional Leadership; European Journal of International Law published The Politics of International Law; The International Institute for the Sociology of Law has a workshop called The Role in Communitarian Law in Implementing Equal Rights ; The Inter-American Conference of Trabajo published Report About Communitarian Social Policy and Social Law in the European Union; Univeristy of Kansas posts essays relating to international communitarian law online. Mexico's Instituto de la Judicatura Federal published an essay called LA UNI?N EUROPEA. PROBLEMAS CONSTITUCIONALES DERIVADOS DE SU ESTRUCTURA Y FUNCIONAMIENTO INSTITUCIONAL which discusses and
Order and Justice in the International Trade System by John Toye. "Presentations on Community Associations and Related Topics," by Jimmy Winokur, includes "Servitude Regimes in Communitarian Perspective: Community Associations as Settings for Postmodern Community," to Washington State Community Associations Institute, Seattle, WA, June 9, 1992, and "Communities of Interest: Private Land Use Controls & Private Communities -- A Communitarian Perspective," to Association of American Law Schools, Property Section Teaching Conference, Spokane WA, June 6, 1992. University of Arizona:
Here's a portion of the legal status under the Cartegena Agreement between Bolivia, Colombia, Ecuador, Per? y Venezuela:
Harvard Law School Forum - 1950's INTRODUCTION TO LAW, CITIZENSHIP, AND JUSTICE Skidmore.edu. Fall 2002 course syllabus. Their intro explains:
Forging Federal Systems Within a Matrix of Contained Conflict, New York University School Of Law, Jeanne Monnet Center. TO PROMOTE THE GENERAL WELFARE: A COMMUNITARIAN LEGAL READER by David E. Carney (Editor). Lanham, MD: Lexington Books, 1999. 324 pp. Cloth $65.00. ISBN: 0-7391-0032-7 Towards A World Domestic Policy by Erik Oddvar Eriksen ; To be published in E.O. Eriksen and J. Weig?rd: A Critical Introdution to J?rgen Habermas. Continuum Press (London, New York). Policy on Social Equity in conservation and Sustainable Use of Natural Resources, Adopted by IUCN Council Meeting, February 2000. Religion and Law; Legal Approaches to Religion, by Andrew Huxley, for a Post graduate seminar, March 2001. West Virginia University's "Constitutional Law and Constitutional Development Syllabus, Part A: Constitutional Theory and Government Powers." Communitarian Data Privacy. THE PROSECUTORIAL STATE, by Charles J. Fox, Department of Political Science, Texas Tech University. The U.S. courts used the term "anti-communitarian" in this brief written in 1984. TONY AND SUSAN ALAMO FOUNDATION, ET AL., PETITIONERS V. RAYMOND J. DONOVAN, SECRETARY OF LABOR No. 83-1935, In the Supreme Court of the United States, October Term, 1984, On Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit:
Who supports communitarian law? TERRORISM, LIBERTY, AND COMMUNITY: Why We Need a Stronger Focus On the Common Good By SCOTT IDLEMAN, Tuesday, Sep. 18, 2001 at findlaw.com. "Americans are fond of liberty, particularly the liberty of the individual. We have numerous words to describe it: liberty, freedom, autonomy, privacy, and rights, among others. Until very recently, however, we have not placed as much emphasis on the common good or the public welfare. If the horrific events of September 11 are any indication, this may ? and arguably must ? change.Community and the Constitution: Our relative lack of focus on the common good is actually quite surprising, given that the preamble to our national Constitution is mostly communitarian, rather than individualistic, in orientation." (How is it possible that the preamble to the U.S. Constitution was written in 1787 as a communitarian document when the communitarian philosophy evolved in the 1990s? ~ed.) Accounting and Administration degree requirements include Communitarian Law in the 4th year. The INTERNATIONAL OFFICE stimulates and supports the development of internationalisation in all aspects of ISCAPs activities, namely concerning ERASMUS programme, together with the International Programmes Office (GPI) of Polytechnical Institute of Porto. The following quote comes from LD Debate.org and shows how far the term can be stretched by American students (and I have no idea where this student found his information: "My first contention is that the United States is morally obligated to promote democratic ideals in other nations because of communitarian law. Communitarian law states that if you have the power to do something for the better, you are morally obligated to. Promoting inalienable rights, freedoms, equality (democratic ideals) would be aimed towards the betterment of the world. The United States clearly has the power to promote ideals of democracy in other nations, due to their becoming the world?s super-power after the fall of the Soviet Union. Therefore since the United States can promote these ideals, it is morally obligated to. The United States under President Clinton in the 1990?s accepted this and promoted democratic ideals abroad, and gained great fame for it. Many people would line up for hours just to see the president, because they honestly felt they were being helped by the most powerful nation. In other words, it relates to the idea of watching a man drown right next to the dock, with another man standing on the dock. The person can easily help them, but decides to walk away. This is exactly what occurs when the United States chooses not to promote democratic ideals in other nations. This ties in with my value of protecting natural rights because by expressing its obligation to promote democratic ideals through communitarian law, it is achieving guaranteeing natural rights." Communitarian law has been successfully taught in law schools across the U.S., and the new communitarian morality has the support of everyone from Harvard to the European Union. Starting out attacking relatively unsupportable behaviors like child pornography, Harvard Law hosts hot events like Harvard's symposium on communitarian law where they invited Zionist communitarian Professor Amitai Etzioni to initiate attacks on the inherent legal flaws in the outdated nationalist U.S. Constitution. For 200 years the U.S. Constitution was considered to be the most powerful people's contract with their government in the history of the modern world, and many nations copied from it when designing their own constitutional governments. Today, even as new republics (like the anti-communitarian Czech Republic) continue to emulate the American nationalist quest for freedom, the American internationalist communitarians look to the United Nations as the more moral bastion of individual freedoms. Here are but a few of the many places to go for more information about communitarian law, to see for yourself the hope it's already brought to an unstable world: DISORDER LAWS AND THE COURTS: REVIEW OF RECENT LEGAL DEVELOPMENTS by Roger L. Conner, J.D. US Dept of Justice's website has a Keynote Address: A Retrospective on the Thirty-Year War Against Crime by The Honorable Patricia Wald, Judge, U.S. Court of Appeals, District of Columbia Circuit, which in 1998 was a most thorough examination of 30 years of advancing communitarian goals. Criminal Justice Today:Title XXVI of the Violent Crime Control and Law Enforcement Act of 1994 mandated establishment of a 28-member National Commission on Crime Control and Prevention. The commission, which is bipartisan and includes congressional as well as presidential appointees, is composed of law enforcement professionals, judges, mayors, prosecutors, professors, and former state attorneys general. Selected to chair the commission is Lee Fisher, a former Ohio state legislator and state Attorney General with a long anti-gun track record. Fisher is a member of the Board of Directors of the Center to Prevent Handgun Violence. The Commission is expected to release its final report in late 1999. Like the findings of its predecessors, the 1967 President?s Commission on Law Enforcement and Administration of Justice, and the 1973 National Advisory Commission on Criminal Justice Standards and Goals, the report of the National Commission is expected to substantially impact criminal justice activities and crime control initiatives during the first few decades of the twenty-first century. Among the Commission?s mandates are: (1) To develop a comprehensive proposal for preventing and controlling crime and violence in the United States. Institute for Law and Justice POLICE POWER AND THE PUBLIC TRUST: PRESCRIPTIVE ZONING THROUGH THE CONFLATION OF TWO ANCIENT DOCTRINES, by Donna Jalbert Patalans details the legal basis for community policing strategies. Her abstract explains: "The close historical affinity between the Public Trust doctrine and police power supports a more expansive view of zoning. The doctrines? kindred public interest spirit can empower localities to adopt dynamic, proactive, prescriptive zoning ordinances that promote community character. To do so, municipalities must self-define their unique community assets and ambiance through an openly developed comprehensive plan that honestly memorializes development patterns and sets forth community goals." Law Research: Law Enforcement Chinese communitarian law Chinese communitarian case law published in Law & Society Volume 37 Issue 3 Page 549 - September 2003 doi:10.1111/1540-5893.3703003, can be accessed from Blackwell Synergy. This "Confessions and Criminal Case Disposition in China" Hong Lu, Terance D. Miethe. "... examines confessions and criminal case disposition in China. It describes how wider economic reforms in China and subsequent changes in its legal system may have affected the nature and consequence of criminal confessions. Bivariate and multivariate analyses of a sample of 1,009 criminal court cases reveal that the majority of offenders confessed to their crime and that confession is associated with less severe punishments (e.g., lower risks for imprisonment, shorter sentences). Changes in the nature of confession and its impact on criminal court practices are also examined before and after legal reforms in the mid-1990s. These context-specific findings are then discussed in terms of their implications for understanding the interrelationships between legal structure, legal culture, and case disposition in communitarian-based societies." Sino Laws, Chinese Legal Consultation Network. Includes full text of Chinese Socialist Constitution/ Chinese Citizens Economic, Cultural and Social Rights From talk: communitarianism at wikipedia: "I have many good reasons to associate the international usage of communitarian law to Etzioni and his George Washington University's Institute for Communitarian Policy Studies. I've read much of what Etzioni has "written," even though his assistant Erin Riska admitted he wrote hardly any of it (and she later retracted that to mean it only had to be heavily edited). The good doctor has been writing about the "need" for a new communitarian legal order since 1957. His brand is the entire basis for legal programs tested by Community Oriented Policing Services (COPS http://nord.twu.net/acl/commpolicing.html) established by Clinton in 1994. Communitarian laws were inserted inside Seattle's 38 Local Agenda 21 Plans in 1999. Balancing community rights is based in communitarian legal principles. In the EU the new system IS the "community" and the national laws of every member country are subserviant to the "Code de r?daction interinstitutionnel." Etzioni advises both US state and federal government agencies to make legal changes to constitutional systems and procedures. He is a strong advocate for limiting U.S. privacy rights and he is a primary player in the unfolding unauthorized national ID database system. (COPS tested the data-gathering operations in Seattle in 2000, it's called COMPASS, Community Mapping, Planning and Analysis for Safety Strategies http://nord.twu.net/compass.html). Here's another one of my reasons: the Communitarian Law newsletter/subscriber list at GWU: http://www.lsoft.com/scripts/wl.exe?SL1=COMMLAW&H=HERMES.GWU.EDU (it has 1,965 members).[[Niki Raapana ~~~~]]" ACL correspondence with Antonio Rossman regarding his above cited quote First reponse from Tony Rossman on August 11, 2005: Just got your email , having been away and out of email for a while. Let me look your material over as I catch up after few weeks away. In a nutshell I was equating communitarianism with representative democracy (which may now seem a faux pas in this age of terminology) and meaning to say the Court would not allow a single spoiler to thwart community will to redevelop what the community as a whole considers blight. That does not mean that democracies cannot prove oppressive or unenlightened; as I indicated in my remarks, the Court would not categorically rule out the use of eminent domain, but left it to the States to fix the abuses. The subsequent reaction to Kelo seems to bear out that the Court's intent is being carried out; the proposals to reign in unfortunate uses of eminent domain appears even to have reached the Governor of Connecticut, source of the problem in the first instance. So let me check out your site and understand your views and see what dialogue may be profitable. Thanks for writing, and again regrets at my delay. Tony Rossmann On 7/27/05 1:21 PM, "Niki Raapana" > Dear Professor Antonio Rossmann, > > In a recent interview in the Wall Street Journal you explained that the Kelo > decision was a "benign communitarian decision." You also claimed that "The > court said we aren't going to be the engine for that anti-communitarian > process." > > A Closer Look at Eminent Domain- What the High Court's Decision May Mean for > Homeowners by STEVEN SLOAN / href=http://www.realestatejournal.com/search/index.asp>Wall Street > Journal 24jun2005 href=http://www.mindfully.org/Reform/2005/Eminent-Domain-Supreme24jun05.htm>ht > tp://www.mindfully.org/Reform/2005/Eminent-Domain-Supreme24jun05.htm > > We are very interested in what you meant by identifying communitarianism as > "benign," and how you interpreted the high court's decision to say they > "weren't going to be the engine for that anti-communitrian process." > > Communitarians create self-appointed, unelected councils that are mostly > unknown to the local voting populace (which are quite often unknown to local > elected representatives). How does a benign communitarian decision endorse > people acting through their representative government? > > It appears you and I have both publically identified the communitarian > purpose for Kelo. Our website is devoted to exposing communitarianism as a > fraud. Are you interested in an online debate against us, at our website, > over the constitutionality of communitarian decisions in the United States? > > Sincerely, > Niki Raapana, Anti-Communitarian League > http://nord.twu.net/acl Federal Courts Flowcharts by Karl Manheim. Will every former nation need to establish a Justice Communitarian Administration to hear the cases? What administration level will direct the Communitarian Police regarding whom to investigate, for what "crime," and when to make the arrests? Will requirements for warrants disappear? Romania's National Anti-Drug Agency posts a list of Bogdan Iasnic, Head of the Evaluation Coordination Directorate's published articles and works, which includes: Communitarian Police - NATIONAL Publishing House, 2002, Bucharest. Mr. Iasnic was also a consultant for: Justice Communitarian Administration - 2nd Edition - EXPERT Publishing House, 2001, Bucharest. Section on National Security Law Outsourcing the War on Terrorism: Extraordinary Rendition, Shadow Warriors, Dirty Assets, and Battlefield Contractors (Program to be published in the Journal of National Security Law & Policy) Moderator: Peter Raven-Hansen, The George Washington University Law School Speakers: Jeffrey F. Addicott, St. Mary?s University of San Antonio School of Law Joseph Margulies, The University of Chicago, The Law School Steven L. Schooner, The George Washington University Law School A perpetual war on terror on a global battlefield stretches our military, intelligence and law enforcement resources to the breaking point. ?Outsourcing? missions to third parties, foreign police and intelligence officers, mercenaries and other ?shadow warriors,? and private contractors can extend our resources. We outsource interrogation and detention by extraordinary rendition to cooperative foreign states. We outsource covert operations by employing ?privatized? special operations forces, mercenaries, or local ?dirty assets? who violate their own states? laws. We outsource interrogation, personal security, or other battlefield missions by contracting with private corporations. Each of these methods of outsourcing lets us, in effect, wage the war ?off the books.? But does it also take the outsourced missions off the law books? Whatever the method, outsourcing poses some or all of these questions: What is the legal authority for it? Do the laws that control the ?principal? in an outsourcing relationship apply to the ?agent?? If not, what laws apply instead? How are they enforced? Who oversees the relationship? To what extent, if any, is the principal accountable for the acts of the agent? The panel will address such questions by examining a range of methods by which missions in the war on terrorism have been outsourced. Lecturer Margulies, counsel in Rasul v. Bush and for Mamdouh Habib (who was rendered to Egypt where he was allegedly tortured), will discuss extraordinary rendition. Professor Bradford, author of The Laws of Armed Conflict and Transnational Security in the Age of Terror (2005), will discuss outsourcing covert operations to private ?shadow warriors.? Professor Addicott, author of Winning the War on Terrorism (2003), will discuss contractors on the battlefield. Professor Raven-Hansen, co-author of the casebook National Security Law (4th ed. forthcom 2006) will moderate. Section on International Human Rights Law Out of Bounds? Considering the Reach of International Human Rights Law Moderator: Deena R. Hurwitz, University of Virginia School of Law Topics and Speakers: The Approach of the Inter-American System: Christina Cerna, Senior Human Rights Specialist, Inter-American Commission on Human Rights, Washington, District of Columbia Comparative Models: John Peter Cerone, New England School of Law U.S. Exceptionalism: Michael Ratner, President, Center for Constitutional Rights, New York, New York Scope of Application of the ICCPR and other Human Rights Treaties: Andre M. Surena, Office of the Legal Advisor, U.S. Department of State (ret.), Washington, DC The Approach of the European System Nina Vajic, Judge, European Court of Human Rights, Council of Europe, Strasbourg, France In the decades following the adoption and entry into force of the major human rights treaties, the capacity of states to project their power beyond their borders has dramatically increased. A crucial consequence of the projection of this power is the increasing breadth of the state?s impact on the enjoyment of human rights in territories far beyond its physical frontiers. In addition to traditional situations of armed conflict and cross-border law enforcement operations, individuals today may find themselves in the power of states in fairly complex configurations. States are increasingly operating through multilateral frameworks, e.g. through the United Nations or regional peacekeeping operations with increasingly expansive mandates. In addition, states are now purporting to create zones beyond the reach of their human rights obligations. The United States detention facilities at Guantanamo Bay, on U.S. ships, and in secret locations, as well as Australia?s use of Pacific island territories for asylum seekers raise controversial questions as to the nature and purpose of human rights norms. Whether such extraterritorial conduct is beyond the reach of the relevant states? obligations under international human rights law is a question very much alive before international courts and human rights mechanisms. Increasing numbers of cases involving alleged human rights violations committed outside the physical territory of the state are being adjudicated in various international fora. These institutions have already developed a varied jurisprudence, accepting extraterritorial application of norms to the different scenarios to differing degrees. While there has recently been some normative convergence, the enthusiastic approach of the Inter-American Commission on Human Rights remains in sharp contrast to the cautious methodology of the European Court of Human Rights. And while the International Court of Justice in its recent Advisory Opinion on the Israeli wall found both International Covenants to apply extraterritorially, the brevity of its analysis leaves many unanswered questions. The broad range of cases encompasses a similarly broad range of issues. Should states be bound by human rights treaties with respect to their extraterritorial conduct? If so, in what circumstances and under what theory? Will different standards be required for acts or omissions? for failing to respect or failing to ensure? for civil and political rights or economic and social rights? for the acts of officials and the acts of private agents? What weight should be given to the intent of the drafters in such cases? And how do the standards differ between treaty and customary law? What about treaties developed within and for a particular geographic region? Do such treaties apply only within the legal space of those regions? Should they? This panel will bring together scholars, practitioners, and international judges in an attempt to answer these questions. The panel will have five speakers and a moderator. Business Meeting at Program Conclusion Section on Law and Communitarian Studies A Conversation About Abortion Moderator: Robert F. Cochran, Jr., Pepperdine University School of Law Speakers: Jack M. Balkin, Yale Law School Teresa S. Collett, University of St. Thomas School of Law Elizabeth B. Mensch, State University of New York at Buffalo School of Law Given the lack of thoughtful public debate about abortion in recent decades, it would appear that the answer to the question raised by Professor Mensch and Alan Freeman in the title of their thoughtful book, The Politics of Virtue: Is Abortion Debatable? (Duke, 1993) is ?no.? But it may be that the time is right to re-open discussion on this difficult issue. It may be that pro-life losses at the courthouse and recent pro-choice losses at the ballot box may have opened up the opportunity for discourse. Some of the ?judicial opinions? in Professor Balkin?s newly published What Roe Should Have Said (Yale, 2005) suggest the possibility of a conversation (the opinions of others suggest not). For communitarians, concerned with the nature of our public discourse, the importance of a reasoned conversation about this issue is paramount. One wonders whether any Supreme Court nominee of any position or non-position on this issue will be able to get a vote from any foreseeable United States Senate. The abortion issue brings to mind several communitarian themes. Should the unborn child be a part of the community? No other issue is so dominated by (in Mary Ann Glendon?s phrase) ?rights talk.? Is this an area where ?rights talk? of unborn children, of pregnant women is appropriate? Or has ?rights talk? made thoughtful discussion of this issue impossible? Communitarians prefer to resolve issues through intermediate communities and persuasion, rather than law. Is this issue appropriately left to persuasion, rather than law? The abortion debate has been framed in Enlightenment liberal terms rights, privacy, due process. Is there communitarian language with which we might better address this issue? Hear contributors to the above-mentioned books address this important issue. Appendix ACL correspondence with Professor Antonio Rossman regarding his above cited quote. Furman Center for Real Estate and Urban Policy, NYU holds a Seminar on "Community Development Law," including "Property Theory: This seminar, taught by Professor Wyman, examines contemporary debates about property using a range of legal, historical, and philosophical materials. The seminar begins by considering four theoretical approaches to property law: the classic utilitarian justification for private property; the Lockean case for property; contemporary rights-based theories of property; and communitarian perspectives. The seminar applies these approaches to live controversies in areas such as environmental and intellectual property law. Drawing on the four theoretical perspectives, the seminar then addresses a range of topics, including property and economic development, the tragedy of the commons, the limits of property rights and markets, social norms, takings, and reparations." [emphasis added] ContractsProf Blog A Member of the Law Professor Blogs Network is advertising: "Samuel Johnson once wrote that no one but a fool writes for any reason except money. The Communitarian Network-a group of academics and others dedicated to pursuing communitarian ideas in law-is taking that lesson to heart with a very market-oriented approach for stimulating thinking on the subject: cash prizes.// The group is offering three prizes of $10,000, $5,000, and $2,500 on "philosophical, sociological, or other elements of communitarian thinking. Deadline is December 31, 2005; selections will be made by a Daniel Bell, Hans Joas, and Amitai Etzioni." [emphasis added] (We've received email confirmation, our December 31, 2005 before the last hour email submission was accepted. We're very excited to have our essay included in a contest for cash!) Talk:Communitarianism at Wikipedia.org. ACL founder tries to get Wiki to include a section on communitarian law. Update December 8, 2005: Wikipedia editors agree communitarian law exists. Update: January 12, 2005: Communitarian Law is added as one of the now 3 main topic areas. We won another debate on the talk communitarian page. (The first was to include a link to opposition websites. I should add a link under ours to American Freedom Press. They call our wins "reaching consensus," but ACL studies have been a long upward climb with very little feedback, so we prefer the term "winner!" I could probably win a debate on Wiki about consensus too.) Related ACL Articles United Nations' Local Agenda 21- The quiet law Community Government 101 Balancing U.S. Law against Talmudic Law The Roosevelt Neighborhood Plan Community Policing U.S. States's COMPASS-GIS Database Dawson et. al. v. The City of Seattle et. al., currently in Ninth District Court of Appeals ACL's Whole System's Management Charts: U.S. Constitutional Law versus Communitarian Law: Chain of Command and Rule of Law Who's on first? Big Mother's Game Plan: Checkmate Federal Flow Charts by Karl Manheim 
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