Articles for category: English Articles

Constitutional limits to health-related nudging – a matter of balancing

Politically as well as from the point of view of constitutional law, I see neither good reasons to generally reject health-related nudging towards less self-damaging behavior, nor good reasons to issue a general clearance certificate on the grounds that nudging always leaves the addressee “at liberty”. The state is not prohibited from taking sides in matters of public health – neither generally, nor specifically insofar as self-damaging behavior of accountable persons is concerned. However, claiming that people who are just being nudged remain free to resist the nudge falls far short of the constitutional law problems that nudges can raise.

5. Januar 2015

The Ethics of Nudging

The last decade has seen a rapid growth of interest in choice-preserving, low-cost regulatory tools, sometimes termed "nudges." Especially in light of that interest, it is important to obtain an understanding of the nature and weight of the ethical concerns.

5. Januar 2015

The Missing Link: Direct Effect, CETA/TIIP and Investor-State-Dispute Settlement

International treaties have rarely received more attention than the proposed free trade deals with the US and Canada. But in the CETA Draft Agreement, which the Commission regards as a template for free trade negotiations with the United States, we come across a final provision of seemingly minor relevance on ‘private rights’, which rejects the applicability of the agreement en passant. This reaffirms that the implications of the free trade deals would be less dramatic than some suggest.

4. Januar 2015

CJEU Opinion 2/13 – Three Mitigating Circumstances

The academic response to CJEU Opinion 2/13 on EU accession to the European Convention on Human Rights can be characterised as a combination of shock, disbelief and protest. Indeed, the Opinion looks like total overkill, as the grounds for rejecting the draft accession agreement are so many and so diverse that they unavoidably give the impression of being primarily based on a defensive and territorial attitude of protecting the exclusive and superior nature of the CJEU’s own jurisdiction. That said, the critical discussion on Opinion 2/13 should include a search for rational explanations as to why the CJEU’s opinion is negative, even if in the extreme. What follows is a short reflection on three factors towards that kind of an approach, without any intention to defend the Opinion itself.

26. Dezember 2014

Opinion 2/13 on EU accession to the ECHR: a Christmas bombshell from the European Court of Justice

On 18 December 2014, the ECJ delivered its long awaited Opinion 2/13 on the compatibility with EU law of the draft agreement for EU accession to the ECHR. The ECJ concluded, to the great surprise of many, that the accession agreement is not compatible with EU law. Indeed it found so many obstacles with the agreement that it has now rendered accession very difficult, if not impossible.

24. Dezember 2014

Let Not Triepel Triumph – How To Make the Best Out of Sentenza No. 238 of the Italian Constitutional Court for a Global Legal Order

The Italian Constiutional Court’s English) already inspired a flurry of comments in the blogosphere (see in EJIL talk! Christian Tams (24 Oct. 2014) and Theodor Schilling (12 Nov. 2014); on the Verfassungsblog amongst others Andrea Pin (19 Nov. 2014); on the Völkerrechtsblog Heidelberg Journal of International Law 2015, issue 1. In that Sentenza, the Corte refused to give effect to the ICJ’s judgment (in) Immunities in the Age of Global Constitutionalism (Leiden: Brill 2015)), but – maybe even more importantly – because it concerns the relationship between international law (in the shape of a judgment by the ICJ) and domestic law, as applied by a domestic (constitutional) court. Just the latest item in ... continue reading

23. Dezember 2014

Acceding to the ECHR notwithstanding the Court of Justice Opinion 2/13

The Court’s Opinion on the accession of the EU to the European Convention on Human Rights may have shattered expectations. The revised accession agreement that was renegotiated by the EU and its Member States with the State Parties to the ECHR, after an initial rejection in the Council by the UK and France, has been dodged by the Court. Tobias Lock in his very fast and intelligent comment answered that question by stating that ‘[i]t is clear that the drafters of the DAA will have to return to the negotiating table’. I respectfully disagree.

23. Dezember 2014

The UK’s Potential Withdrawal from the European Convention on Human Rights – Just a Flash in the Pan or a Real Threat?

The ruling Conservative party of Prime Minister David Cameron published a paper this year, called »Protecting Human Rights in the UK«. The party suggests to replace the Human Rights Act 1998 (HRA), which incorporates the ECHR into UK law, with a »home-grown« bill of rights. The aim is to attribute the European Court of Human Rights (ECtHR) only an advisory role vis-à-vis the UK parliament and to weaken the quasi precedential effect of ECtHR case-law vis-à-vis the UK Supreme Court. In case this will not be accepted by the Council of Europe (CoE), the Conservatives propose withdrawing from the Convention. ... continue reading

17. Dezember 2014

The Backlash against International Courts

International courts seem to be living in hard times. The International Court of Justice is openly challenged by the Italian Constitutional Court, the European Court of Human Rights faces political initiatives to curtail its power in the UK and in Switzerland, the International Criminal Court is up against occasional rebellion in a number of African countries, the Inter-American Court of Human Rights has been confronted with challenges by courts and governments in Venezuela and the Dominican Republic, and several (especially Latin American) countries have initiated a backlash against international investment arbitration. This symposium has debated a number of these cases ... continue reading

16. Dezember 2014

Is there an Ethics of Nudging?

Is nudging – the act of pushing someone in a certain direction in his or her own interest – not just a matter of "could" but of "should"? Cass Sunstein, one of the protagonists of the nudging debate, spoke last week at a conference held by the Federal Department of Justice. The question of the legitimacy of nudging hardly mattered at that conference, though – a question that will be hopefully addressed more comprehensively at the Verfassungsblog Nudging conference in January.

15. Dezember 2014