Reminder: "Human Rights at the Margins: The Refugee Crisis and Other Emergencies in a Transatlantic Perspective" (Saturday, Jan. 9, 8:30 am, AALS Annual Meeting, New York City)

Just a reminder to all network members attending the AALS Annual Meeting this week in New York: the European Law Section of the AALS will host a panel on "Human Rights at the Margins: The Refugee Crisis and Other Emergencies in a Transatlantic Perspective," which will take place on Saturday, January 9, 2016, from 8:30-10:15 am (room location in the conference program).  More details on the panel are below.  

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Human Rights at the Margins:

The Refugee Crisis and Other Emergencies in a Transatlantic Perspective

Saturday, January 9, 2016, 8:30-10:15 am

Moderated by Section Chair Daniela Caruso (BU), the panel will include Iris Goldner Lang (Zagreb), Daniel Halberstam (Michigan), Steve Peers (Essex), and Gráinne de Búrca (NYU) (discussant).

The refugee crisis in the Mediterranean has been rightly identified as the most serious legal and political challenge currently facing Europe. The crisis calls into question the legal architecture of the Euorpean Union and tests the limits of policy coordination among the Member States. It calls as well for a reassessment of human rights and classical immigration law as frames for handling structural predicaments in the Global South. The purpose of this panel, co-sponsored by the AALS Sections on International Human Rights and International Law, is to engage US and EU legal scholars in a discussion of ongoing legal responses to the Mediterranean crisis and similar emergencies, with the goal of identifying limitations and possibilities in federal, supranational, or international entities called to the rescue of the lost at sea.

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In addition, there will be a section business meeting following the panel, as well as a section lunch at 12:30 pm (RSVP by Tuesday, January 5, to Daniela Caruso, who can provide further details).  On the agenda of the business meeting will be the appointment of new Executive Committee members, the selection of a topic for next year’s program, and a discussion of blog-based initiatives.  The section lunch will follow the panel on "Comparative Perspectives on Privacy Law," co-organized by the Section on Comparative Law and the Section on Defamation and Privacy Law, which section members may also wish to attend.  

2016 AALS Annual Meeting: European Law Section program announced

Network member Daniela Caruso (BU) has announced the program for the AALS European Law Section at the 2016 AALS Annual Meeting in New York City (January 6-10, 2016).  The European Law Section program will take place on January 9, 2016, and will feature network members Gráinne de Búrca (NYU), Daniela Caruso (BU), and Daniel Halberstam (Michigan), as well as Steve Peers (Essex).  The program is summarized below.

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Program Title: Human Rights at the Margins: The Refugee Crisis and Other Emergencies in a Transatlantic Perspective

Date: Saturday January 9, 2016

Time: 8:30am-10:15am

Program Summary: The refugee crisis in the Mediterranean has been rightly identified as the most serious legal and political challenge currently facing Europe. The crisis calls into question the legal architecture of the European Union and tests the limits of policy coordination among the member states. It calls as well for a reassessment of human rights and classical immigration law as frames for handling structural predicaments in the Global South. The purpose of this panel, co-sponsored by the AALS Sections on International Human Rights and International Law, is to engage US and EU legal scholars in a discussion of ongoing legal responses to the Mediterranean crisis and similar emergencies, with the goal of pointing at limitations and possibilities in federal, supranational or international entities called to the rescue of the lost at sea. 

Panelists: Steve Peers, Essex University School of Law (UK); Daniel Halberstam, University of Michigan; Gráinne de Búrca, New York University (Discussant); Daniela Caruso, Boston University (Chair).

Network on SSRN: Dimitry Kochenov, "EU Law without the Rule of Law: Is the Veneration of Autonomy Worth It?"

We are pleased to welcome to the network Dimitry Kochenov (Groningen), who this year will be a fellow and visiting research scholar in the Law and Public Affairs Program at Princeton.  Dimitry has alerted us to a new piece he has posted on SSRN, entitled "EU Law without the Rule of Law: Is the Veneration of Autonomy Worth It?"  This article is forthcoming in the Yearbook of European Law and is also directly relevant to our ongoing discussions on the accession of the EU to the ECHR.  The abstract is below and the full paper can downloaded here.

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This is a critical analysis of the Rule of Law in the EU, concluding that the Union is not driven by the Rule of Law as an institutional ideal. Instead, the Union deploys the “Rule of Law”, viewed to a large extent through the lens of the autonomy of the EU legal order, to shield itself from potential internal and external contestation. This is precisely the contrary to what the classical understanding of the Rule of Law would imply. The Union thus suffers, it is argued, as a result of misrepresenting legality at the EU level, selling it to friendly observers under the label of the “Rule of Law”, while compelling reasons exist to distinguish the two. To do so, Gianluigi Palombella’s vision of the Rule of Law as an institutional ideal is employed, implying that the law – gubernaculum – should always be controlled by other law – jurisdictio – lying outwith the sovereign’s reach. Unable to boast any jurisdictio expressly intended as the legal aspect of positive law beyond the internal market logic programmed into the Treaties, the EU emerges as a somewhat rudimentary legal system, with no strong guarantees of legal non-domination extending beyond the Treaty text. The paper demonstrates the clear negative consequences of the prevalent deficient understanding of the Rule of Law for both constitutional levels: the EU and the Member States. One of the curious outcomes of the current reading of the Rule of Law in the EU is that this principle can be presented as demanding to trump the values of the Treaties as well as of the national constitutions in the name of upholding formal organisational considerations seemingly underpinning the EU legal system, resulting in anarchical confusion.

Paul Craig on “EU Accession to the ECHR after Opinion 2/13” (Fri. Sept 18)

On Friday September 18th, from 12:30-2:00pm, the Jean Monnet Center at NYU will host a lunchtime event with Paul Craig (Oxford), who will speak about "EU Accession to the ECHR after Opinion 2/13." Also joining the discussion will be network members Piet Eeckhout (UCL), Turkuler Isiksel (Columbia), Mattias Kumm (NYU), and Peter Lindseth (UConn).

If you are in the New York area and would like to attend, please RSVP by email to jeanmonnet@nyu.edu. Lunch will be served from 12:30 PM, the presentation will begin at 1:00 PM and the discussion should end at 2:00 PM.  Location:  1st Floor Faculty Lounge, 22 Washington Square North, New York, NY 10011

More from Daniel Halberstam on EU Accession to the ECHR

Daniel Halberstam (Michigan) has alerted us to a new piece he's posted on the Verfassungsblog on the topic of EU accession to the ECHR (for earlier interventions, see here).  Entitled "Foreign Policy and the Luxembourg Court: How to Address a Key Roadblock to EU Accession to the ECHR", the first paragraph is below and the remainder can be read here.

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The Court of Justice of the European Union recently declared the European Union cannot join the European Convention on Human Rights (ECHR) unless the Luxembourg court has jurisdiction over all questions of EU law that reach the Strasbourg court – including Common Foreign and Security Policy. The reasons behind this decision have been discussed elsewhere. The big question now is, how to proceed? [Continue reading here]

Save the Date: AALS European Law Section 2016 Annual Meeting (Washington DC, January 9, 2016)

Chair of the AALS European Law Section and network member Daniela Caruso (Boston University) has written to confirm the details for the European Law Section panel at the AALS 2016 Annual Meeting in New York City.  

The panel will meet on January 9, 2016, at 8:30am.  The topic will be "Human Rights at the Margins: The Refugee Crisis and Other Emergencies in a Transatlantic Perspective."  Network member Daniel Halberstam (Michigan) and Steve Peers (Essex) are confirmed as speakers; network member Gráinne de Búrca (NYU) will serve as discussant; and Daniela will chair.

The Network on SSRN: Turkuler Isiksel, "European Exceptionalism and the EU's Accession to the ECHR"

Network member Turkuler Isiksel (Columbia) has a new paper on SSRN, exploring and criticizing the strand of "European exceptionalism" that she identifies in the attitude of the Court, and in Opinion 2/13 in particular.  The abstract is below; the full text, entitled "European Exceptionalism and the EU's Accession to the ECHR," is available on SSRN here.

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In a December 2014 opinion, the Court of Justice of the European Union (CJEU) torpedoed the draft accession agreement that would have enabled the EU to accede to the European Convention on Human Rights (ECHR) on the grounds of its incompatibility with the EU’s constitutional structure. The opinion has been widely criticized as evidence of the CJEU's unwillingness to be bridled by another international court and its anxiety over losing its self-proclaimed primacy within Europe’s juridical space. This short essay argues that the Court's reasoning is symptomatic of an hubristic attitude of "European exceptionalism" that pervades the self-understanding of EU institutions, not least the Court itself. According to the exceptionalist narrative, the enlightened character of EU institutions exempts them from the normative constraints designed to check more imperfect forms of political organization such as nation-states. The paper submits that this is a more alarming, not to mention ironic, stance for a supranational Court to espouse than either institutional self-importance or exaggerated anxiety over constitutional incompatibility.

Follow-up: Daniel Halberstam on EU-ECHR Accession / Symposium on the Verfassungsblog

We're pleased to let readers know that the Verfassungsblog is currently hosting an online symposium to discuss Daniel Halberstam's recently posted article on the ECJ's Opinion 2/13 on EU-ECHR accession.  This article builds on remarks that Daniel made here at NYU in a panel discussion on January 30.  Among the participants is Thomas Streinz, a Hauser Global Scholar at NYU, who also participated in the January 30 discussion.  Below is the introduction posted by the editors at the Verfassungsblog, and the full symposium can be found here.  Readers and network members should take a look.

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In a highly provocative article, Daniel Halberstam goes against the trend of sharp criticism of Opinion 2/13 by offering a constitutional perspective to explain the basis for the Court’s objections to the draft accession agreement. But the article also argues that accession must proceed to save the Union and identifies several ways to accomplish that goal. We invited a group of scholars to comment.

The Network on SSRN: Daniel Halberstam, "'It's the Autonomy, Stupid!' A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and a Way Forward"

Network member Daniel Halberstam (Michigan) has a new piece posted on SSRN, entitled "'It's the Autonomy, Stupid!' A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and a Way Forward".  This piece builds on the presentation that Daniel made at the Jean Monnet Center at NYU in January.  It will also soon appear in the German Law Journal and be the subject of a symposium on the Verfassungsblog.  The abstract can be found below and the full article can be downloaded here.

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Opinion 2/13 of the European Court of Justice (striking down the draft agreement on accession to the ECHR) has been widely derided as “unsubstantiated,” purely “self-interested,” and “playground politics.” This Article disagrees with that assessment. The Article provides the first comprehensive legal analysis and reconstruction of the Opinion’s many objections to show why the Court’s concerns are mostly warranted. At the same time, however, the Article explains why accession to the ECHR is not only important for human rights, but also vital to save the European Union itself. Finally, the Article points the way forward, arguing for changes (though not all those the Court demands) that must be, and can be, made to allow accession to proceed.

Panel Discussion at NYU Law School (Fri, Jan 30): Accession of the EU to the ECHR after Opinion 2/13

Last year ended with a major set-back for the accession of the EU to the ECHR. On December 18, 2014, the European Court of Justice delivered its long awaited Opinion 2/13 on the accession agreement, declaring it to be incompatible with the EU Treaties. Opinion 2/13 has been met with fierce criticism in the blogosphere (see, e.g., here, here, here, here, here, here, here, here, and here). It raises a range of questions relating to the autonomy of EU law, the ECJ's alleged monopoly for human rights protection in EU law matters, and of course the future of the accession process. Will Article 6(2) TEU remain an unfulfilled obligation?

To discuss these and other questions, the Jean Monnet Center at NYU Law School will hold a lunch-time discussion on Friday, January 30, 2015 in the lounge of 22 Washington Square North. Thomas Streinz (Hauser Global Scholar, NYU) will provide a short introduction, network member Daniel Halberstam (Michigan) will offer remarks., and network member Peter Lindseth (UConn, Senior Emile Noël Fellow at NYU this term) will chair.

Lunch will be served from 12:00 PM onwards, the presentation will begin at 12:30 PM and the discussion should officially end at 2:00 PM (but could of course be continued informally over coffee).

If you are in New York and interested in attending, please RSVP to jeanmonnet@nyu.edu.

The Network on SSRN: Gráinne de Búrca, "After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?"

We're a bit behind in alerting readers to new postings of the network on SSRN, and we'll be trying to make up for that over the next couple of weeks.  With apologies for the delay, we wanted to let readers know about this new piece by network member Gráinne de Búrca (NYU), entitled "After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?," which is forthcoming in the Maastricht Journal of European and Comparative Law, Vol. 20 (2013). An abstract is reproduced below and the full article can be downloaded from SSRN here.

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This article examines the engagement by the Court of Justice of the European Union (CJEU) with the EU Charter of Fundamental Rights over the period since the Charter was made formally binding by the Lisbon Treaty in 2009. A survey of the output of the Court during that time reveals a sharp rise in the number of cases in which a provision of the Charter was cited or argued before the Court. Further, the Court has engaged substantively with and given prominence to the Charter argument in a growing number of these cases. In other words, the incidence of human rights adjudication before the CJEU has been significantly augmented by the adoption of the Charter as a binding legal instrument. The article considers the implications for the Court of Justice of the growing demand for it to function in certain cases as a human rights adjudicator. More particularly, it questions whether the long-standing judicial style and approach of the Court – its self-referential, formulaic and often minimalist style of reasoning – is appropriate to this expanded role. The article argues that the nature and context of the increasing number of human rights claims being made before the Court call for greater openness on the part of the CJEU to the use of international and comparative law and to the possibility of third party interventions. Further, and particularly given the evident unwillingness of the CJEU to countenance the practice of separate concurring or dissenting opinions, the Court should, particularly in cases involving human rights claims, rethink its increasingly frequent practice of dispensing with the opinion of an Advocate General.