This introductory Article sets out the premise of the Special Issue, the entrenched and pervasive nature of human rights violations in the context of migration control and the apparent lack of accountability for such violations. It sets out features of contemporary migration control practices and their legal governance that contribute to this phenomenon, namely the exceptional treatment of migration in international law; the limited scope of international refugee law; and the pervasive use of externalized, delegated migration controls, in particular by the EU and its Member States. The roots of the current condition are traced back to the containment practices that emerged at the end of the Cold War, with the 2015 “crisis” framed both as an illustration of the failures of containment, and a source of further stasis. Following an overview of the contributions that make up the Special Issue, this Article identifies five emergent themes, and suggests further lines of inquiry. These are: the promise and limits of strategic human rights limitations; the role of both international criminal law, and domestic (and regional) tort law in securing accountability; the turn to positive obligations to challenge entrenched features of containment; and the role of direct action in support of and solidarity with those challenging migration controls most directly, refugees and migrants themselves. Rather than offering panaceas, the Article concludes with the identification of further new challenges, notably the role of new technologies in further dissipating lines of accountability for decisions to exclude.

On 10 December 2018, the Court of Justice (CJEU) delivered the Wightman judgment and recognized the unilateral revocability of the notification ex Art. 50 Treaty on European Union (TEU). This article offers a critical analysis of the decision by insisting above all on the national background of the ruling and the political risks stemming from the decision. The article is structured as follows. Firstly, it analyses the legal questions of the Scottish case, which constituted the ground for the admissibility of the preliminary ruling and showed the perils for the exercise of national sovereign rights embedded in the lack of clarity on revocation options. It thus reconstructs the critical aspects of the preliminary ruling of the CJEU. Subsequently, the article examines the implications of the ruling for the EU legal order. On the one hand, the analysis considers the conception of the EU membership by comparing the approach of the CJEU and that of Advocate General Campos Sánchez Bordona in Wightman.

This Special Issue considers the situated and contextualized development of socio-legal, or law and society, scholarship within two materially different legal and academic cultures, namely Germany and the United Kingdom, with a view to achieving a better understanding of why and how such differences in understanding and practice have arisen. The contributions are grouped into three themes. The first reflects upon the influence of institutional contexts and scholarly traditions in terms of the development of those approaches that come under the banner of socio-legal studies. The second features contributions that adopt a comparative perspective in terms of selected areas of law, pointing to notably different approaches taken in Germany and the UK, and considering the development of these respective situations. The third looks at the key contemporary trends, theoretical applications, and methodological approaches taken within both countries’ socio-legal academic contexts.

The issue of “constitutional identity” is a topic the relevance of which emerges in contemporary constitutional democracies in the context of constitutional changes. It has already attracted multilayered approaches, but its legal conceptualization is still underexposed. Based on regional European jurisprudence and doctrinal works, “constitutional identity” in a legal context is suggested to be viewed as the “identity of the constitution.” The identity of the constitution is found among provisions of constitutional texts and related jurisprudence that specifically and exclusively feature a status that was constituted during the constitution-making process and shaped by either formal or informal constitutional amendments. The legally applicable “identity of the constitution” comprises those articles that can be employed vis-à-vis EU law and unconstitutional amendments, and which are arguably intended to be applied in the face of international human rights obligations. It is posited that Germany and Hungary exemplify the “confrontational with EU law model,” while the model that emerged in the jurisprudence of the Italian Constitutional Court should be called the “cooperative model with embedded identity.” Today, it seems that the very content of the identity of the constitution of a particular Member State may be shaped and preserved through an active and cooperative dialogue between the supranational and national courts, if there is an inclination to find uniqueness in a community based on common legal traditions and values—Germany and Italy. Another way of determining the content of “constitutional identity” is to fiercely try to demonstrate that uniqueness. This is what Hungary seems to be engaged in, and that is why it may be proposed to call the Hungarian model a model of confrontational individualistic detachment.

This article discusses two landmark judgements by the German Federal Constitutional Court (CC) on the relationship between domestic and EU fundamental rights protection (Right to be forgotten I and II). In these judgements, for the first time, the CC uses EU fundamental rights as a standard of review. In addition, the CC establishes a novel framework of “parallel applicability” of EU and domestic fundamental rights for subject matters that are not fully harmonized by EU law. The article first presents the new approach, showing that it structurally changes the parameters of the relationship between the CC and the CJEU. Second, the article assesses the legal-political tendency reflected in this change: is this constructive dialogue or rather pushback against the CJEU? The article argues that this new jurisprudence should be characterized as an instance of resistance. The CC resists against the CJEU in its function as fundamental rights court, attempting to reduce the authority of the CJEU and reversing a development that it considered to be unfavourable to its own authority. This is structural pushback aimed at the CJEU’s function rather than at individual decisions or norms - however, without rejection the CJEU as an institution altogether.

The Editors-in-Chief have decided that we will provide our much-cherished readers with an editorial every so often as a way of sharing insights from the “machine room” where so much of the thinking and work is done to publish the German Law Journal. We want to let you in on the ideas that are on our minds, share with you our observations, and include you in the conversations we are having that might be of interest to you. We begin this tradition with this issue, Volume 21 – Number 6. Andrew Hyde, a member of the editorial team with which the Journal has partnered at Cambridge University Press, as well as Russell A. Miller and Emanuel V. Towfigh, two of the Journal’s co-Editors-in-Chief, open our From the Headquarters Essay with a piece on the Journal’s experiences with and its further plans for making open-access (OA) publishing economically viable. Related to that theme, we also want to share news with you about the introduction of a voluntary article processing charge this fall. Finally, we want to draw your attention to a videos and podcasts service we will start to produce to accompany the scholarship published in the Journal as a way of promoting our authors’ work and expanding access to their ideas. If you are interested only in these latter initiatives, you can also read the short section in the GLJ Instructions for Authors.

Reforms to the process for electing judges to the European Court of Human Rights have generally focused on identifying the most qualified individual candidates. This Article argues for a more holistic approach, advancing a theory of why professional diversity on the European Court of Human Rights is an asset in collegial decision making. The results of original interviews with several Strasbourg judges are presented, followed by an empirical analysis of the professional backgrounds of all judges elected to the European Court of Human Rights since 1998. Although the interviews indicate that the judges themselves see the value of professional diversity, the quantitative evidence suggests a trend in the direction of a more professionally homogenous bench. The Article concludes with some suggestions for how the promotion of professional diversity might be appropriately pursued in future reforms to the process for electing Strasbourg judges.

The history of Hong Kong is intertwined with British colonialism and China’s Hong Kong policies. This history offers unique and important lessons on the rise and fall of Hong Kong’s constitutional order. In accordance with the 1984 Sino-British Joint Declaration, China declares 12 basic policies regarding Hong Kong and has translated these into the 1990 Hong Kong Basic Law. It is generally held that “One Country, Two Systems” will be the main constitutional architecture of Hong Kong for 50 years, and it will remain basically unchanged even after 2047. However, there are obvious difficulties and enormous differences on the interpretation of Article 5 of the Hong Kong Basic Law concerning the true meaning of “unchanged for 50 years.” Recent years have witnessed the great need for deciphering the time-code of the Basic Law because the question of 2047 draws closer and closer to the central stage for the determination of Hong Kong’s constitutional future. This Article aims to provide legal analysis on Article 5 of Hong Kong Basic Law and the constitutional fate of Hong Kong toward 2047. It distinguishes all sorts of Article 5 interpretations into three broad categories: “Unchanged for 50 years” as international promise, “unchanged for 50 years” as political commitment, and “unchanged for 50 years” as constitutional obligation. Different approaches have been utilized for various constitutional interpretations. But all in all, the constitutional puzzles regarding “unchanged for 50 years” must be addressed within the framework of the temporality of the Basic Law in a fast-paced world. In order to maintain the constitutional stability and endurance, to secure the unamendability of “One Country, Two Systems” in 2047 will be the best blessing for Hong Kong in every possible way.

Under the headings of “Rechtssoziologie” in Germany and “sociolegal studies” in the UK, scholarly traditions have developed that relate law to its social environment. This Article identifies key stages in the development the subject took in both countries and the directions of travel. Comparable milestones were passed, and directions were taken in Germany and the UK. This includes the institutionalization of the subject along the lines of programmatic texts; becoming part of university education; and the establishment of research institutes, academic associations, and specialized journals. The development tells us something beyond sociology of law or sociolegal studies, namely about the relation of law and sociology, the parent disciplines themselves, as well as about academic studies and professional and institutional practice. However, in contrast to the UK, there is still more of a distance between the sociology of law and jurisprudence in Germany.

Recent events in the United States have highlighted the fact that American police resort to force, including deadly force, much more often than in many other Western countries. This Article describes how the current regulatory regime may ignore or even facilitate these aggressive police actions. The law governing police use of force in the United States derives in large part from the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures. As construed by the United States Supreme Court, the Fourth Amendment provides police wide leeway in using deadly force, making custodial arrests, and stopping and frisking individuals. While state and local police departments can develop more restrictive rules, they often do not. Additionally, the remedies for violations of these rules are weak. The predominant remedy is exclusion of evidence, the impact of which falls primarily on the prosecutor and in any event only has a deterrent effect when evidence is sought. Civil and criminal sanctions have been significantly limited by the Supreme Court, particularly through the doctrine of qualified immunity (applied to individual officers) and the policy or custom defense (applied to municipalities). This minimal regulatory regime is one reason police-citizen encounters in the United States so often result in death or serious bodily harm to citizens, in particular those who are Black. The Article ends with a number of reform proposals.

This Article develops what we call a “topographical approach” to accountability in migration control. Drawing on different strands of scholarship, including legal geography, “legal black holes,” and work on strategic litigation, we approach accountability by perceiving the site of a violation from a bird's-eye view and mapping different accountability structures across diverse legal regimes and via a broadened geographic lens. Rather than advocating for accountability in regard to particular regimes or jurisdictions, we argue that multi-pronged approaches are likely to remain the best starting point for ensuring accountability for human rights violations in the context of current migration control practices. The topographical approach thus offers a general framework for identifying existing blind spots, critically assessing existing trajectories, as well as exploring the wider grid of potential accountability mechanisms.

In recent years, a new creature has emerged on the institutional landscape: The Schmitelsen Court. This court is the end-product of a combination of the positions presented by Hans Kelsen and Carl Schmitt in their famous debate over the institutional identity of the guardian of the constitution during the Weimar years. The Schmitelsen guardian is a court thus fulfilling Kelsen’s vision of the constitutional court as the guardian of the constitution. Nevertheless, it possesses the mission, the means to achieve it, and the source of legitimacy that Schmitt envisioned for the president as the guardian of the constitution. In this Article, I focus on the Schmitelsen Court’s source of legitimacy that differs greatly from the traditional source of judicial legitimacy that Kelsen envisioned for the guardian. Whereas Kelsen viewed legal expertise as the guardian’s source of legitimacy, Schmitt viewed public support as filling this role. After analyzing these two positions, I explain why it is vital for the Schmitelsen Court to harness public support as its source of legitimacy. I proceed by examining how the Schmitelsen Court model manifests itself in three case studies. In the US, Alexander Hamilton—in The Federalist No. 78—raised the notion of the guardian of the constitution long before Schmitt and Kelsen. He designated the judiciary as the guardian and ascribed its source of legitimacy to expertise. After describing how in recent decades the US Supreme Court adopted the Schmitelsen understanding of judicial legitimacy, I turn to examine the Israeli Supreme Court and the European Court of Human Rights. The relevance of these latter two courts stems not only from their adoption of the Schmitelsen Court’s understanding of judicial legitimacy, but also from the strong influence of the Weimar lessons on their evolution into Schmitelsen guardians.

The First Senate of the German Federal Constitutional Court (FCC) has recently introduced the express promise that where EU fundamental rights take precedence over German fundamental rights, the Court itself could directly review, on the basis of EU fundamental rights, the application of EU law by German authorities. There are, however, differences between the Basic Law as the relevant standard of review and other standards of review that are dangerous to ignore. The constitutional status of the FCC’s jurisdiction depends crucially on whether the Court relies on the constitution or on EU fundamental rights. If the constitutional status of the novel jurisdiction covered any binding-effect, and that is a big if, the FCC still would not safeguard the unity and coherence of Union law. Leaving aside the fact that the First Senate is confined to reversing and remanding (unable to enforce anything directly), no beneficial effect on legal certainty grows apparent. Any binding-effect of the novel jurisdiction only provides for consistency without finality. And to venture further into the question: Even if anyone welcomed this novel kind of consistency without finality (virtually “provisional consistency”), this oddish consistency would still be a localized consistency, i.e. in German courts only.

Negotiated agreements in criminal proceedings have often been regarded as the embodiment of a negative wider trend towards the informalization of the criminal procedure, and have—especially in Germany—long been the subject of vivid controversies. A criminal proceeding in the traditional sense aims to establish the truth ex officio, which is achieved by means of a comprehensive inquiry into the facts conducted by the court during the trial, followed by a sentence that appropriately reflects the individual guilt of the defendant, which can then, in turn, achieve the procedural objective of “justice.” A streamlining of the extensive inquiry into the facts that the court would normally have to conduct via the consensual process of negotiation does not, a priori, fit the mold of a criminal procedure in the aforementioned sense. At the same time, the consensual termination of criminal proceedings—which also includes other forms of termination of the proceeding besides the concept of Verständigung, which occur by means of a preferment of public charges—is, in fact, more prevalent in practice these days than judgments rendered in adversarial trials are. Our Article focuses on the reasons why this stark contrast between legal doctrine and reality came to pass and which aspects of the implementation of the concept of consensus into the German law of criminal procedure still seem problematic.

The Memorandum of Understanding (MoU) concluded between the UK and Ireland in May 2019 provides one of the few clear legacies of Theresa May’s premiership. The Common Travel Area (CTA) between Ireland, the UK, the Channel Islands, and the Isle of Man provides the basis for domestic immigration and nationality laws which permit Irish citizens to reside in the UK and for them to be treated as “not foreign” in the context of UK domestic laws concerning access to healthcare, employment, social security, political participation, and education. Yet it has long lacked legal definition. The UK and Ireland reciprocate, to a rough extent, these rights for each other’s citizens. The MoU and related developments mark the first steps towards clarifying the CTA’s scope. The rush to conclude this MoU and alter parts of both countries’ domestic law relating to the CTA nonetheless illustrate the fragile state of Ireland–UK relations with Brexit looming. This Article explores whether these reforms will enable people who rely upon the CTA as a foundation of life outside their home country to protect their interests through litigation, and reflects upon the relationship between these arrangements and the protections for EU citizens proposed under the UK–EU Withdrawal Agreement.

This Article explores the economic nature of law and courts as an explanation for the world’s endemic court congestion problem. The economic theory of goods and services is used to demonstrate that law has a dual nature—coercion and compliance—and that law as coercion is actually a club good that requires a complementary good to be useful, courts. But because courts are private goods in nature, the bundled product will behave as a private good. However, the unrestricted implementation of access-to-justice policies with the objective of increasing the people’s access to courts will transform the bundled product into a common pool resource. The counterintuitive result of this transformation is that granting unrestricted access to justice might actually prevent people from accessing their rights—the tragedy of the judiciary. Two policy implications are explored: The importance of legal certainty for the tragedy mitigation, and the potentially adverse selection problem resulting from court congestion.

Through a literary-theatrical reading of international legality, this Article challenges the “settled script” produced by international legal scholars to frame and assess the legality of two historical events—the Grenada Revolution (1979–1983) and the U.S. Invasion of Grenada (1983). It does so by reading the Cold War as a sensibility performed by these scholars, one that recognized the operation of rival international legal orders and one that crafted a different script—Cold War Customary Law (“CWCL”)—to decide questions of international legality in a Cold War context. In addition to offering a new way to read the Cold War and international legality, this Article argues first that it is important to uncover this parallel and competing script of international legality operating at the time, and not dismiss it as unrelated political or ideological discourse, as it clearly influenced the interpretive logic and reasoning practices international lawyers deployed to frame what constituted legality in international law. Second, it argues that this Cold War sensibility in international legal scholarship on intervention and revolution predated the events in Grenada, and that if a different theatrical mise en scène is adopted—one which eschews “the short durée” or “evental history” of the settled script—this sensibility can be understood as being both continuous and discontinuous with rival imperial forms of international law operating in the Caribbean across time and place, where its discontinuities open up space to recover revolutionary Caribbean subjects of international law and a sensibility of shame in the present.

Cybersecurity in the financial sector is a dynamic and evolving policy field with unique challenges and specific characteristics. While it has recently received a lot of attention from disciplines like Economics and Politics, legal literature on this topic, especially with regard to EU law, still lags behind. This is surprising, given that cybersecurity in the EU is characterized by complex governance structures, a variety of legal sources, and a wide range of different rule makers and involved actors, and given that only a clear legal framework with efficient institutions at both EU and Member State level can provide for a safe digital environment. The purpose of this Article, therefore, is twofold: On the one hand, it aims to introduce the legal aspects of cybersecurity in the financial sector while taking stock of existing cybersecurity schemes, including their strengths and weaknesses from a legal perspective. On the other hand, it will set out key elements that cybersecurity regulation in the financial sector must respect in order to be effective and come up with reform proposals to make the EU financial sector more cybersecure.