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Emile Noël Fellows
Academic Year 2010-2011
FULL ACADEMIC YEAR 2010-'11
SPRING 2011
Ari Afilalo is a Professor of Law at Rutgers-Camden School of Law. His teaching and research focus on international trade, international business transactions and E.U. Law. He holds a J.D. magna cum laude from Boston University School of Law and an LL.M. from Harvard Law School. He was a law clerk to Chief Justice Paul J. Liacos of the Supreme Judicial Court of Massachusetts, and practiced law for several years in New York City, focusing on international commercial and financial transactions and intellectual property. A native of Paris and of Moroccan origin, he has lived and studied in Israel. He is married to Brigitte Dayan and the father of Maya and Liora.
RESEARCH:
The New Global Trading Order: The Evolving State and the Future of Trade
Ari Afilalo’s research focuses on international trade and investment law. His current projects explore the relationship between international trade orders and the nature of the State. Drawing on theories of Statecraft through various historical periods, such as the pre-modern State of the Industrial Revolution or the modern nation-State of the 20th century, he argues that the foundational principles of the State in each era define the theoretical architecture of the international trade order of the time.
For example, the nation-state of the 20th century was well suited for a trade architecture based on comparative advantage and respect for national sovereignty. The ethos of the nation-state was the delivery to the nation of welfare, defined broadly to include entitlements as well as the regulatory norms of the administrative State. The GATT, in the words of John Ruggie, embedded modern liberal democratic Statecraft because it allowed individual states to have access to a greater global pie, all the while respecting its national method of delivering welfare. Thus Japan could implement indicative planning programs, England or France could freely follow cradle-to-grave welfare schemes, and the United States could tax and spend, free of interference from the international system but able to increase its resources through trade.
Since the early 21st century, we have entered a new period of Statecraft, which has been labeled market-State or post-modern State, which necessitates a rethinking of some of the basic hallmarks of the GATT/WTO. Ari’s current research, which draws on a book he recently co-authored on these issues entitled “The New Global Trading Order: The Evolving State and the Future of Trade,” explores the contours of the trade order of the post-modern era, and the extent to which current institutions and international regulatory frameworks must be changed or supplemented. On a parallel track, he analyzes the relationship between domestic constitutional law and international law, and argues that the same set of norms that define the international trade order shape constitutional norms.
 Carlos Closa holds a Ph. D. in Politics, University of Hull (UK) (1993); M.A. in European Integration and Cooperation (1990) (U. Hull). He holds degrees in Sociology and Political Science (Universidad Complutense, UCM), Madrid, 1987. Between 2004 and 2008, he was Deputy Director of the Centro de Estudios Políticos y Constitucionales (Ministry of Presidency) and between 2005 and 2009, he was member of the Venice Commission for Democracy through Law (Council of Europe) representing Spain. He has been formerly professor at the University of Zaragoza, Complutense (Madrid) and tutor at the University of Hull. He has been Visiting Professor at the College of Europe (Bruges) and he has been Professor at the Instituto Universitario Ortega y Gasset (IUOG), Madrid since 1999. He was also Visiting Fellow at the Minda de Gunzburg Centre of Harvard University (2002) and Jean Monnet Fellow (1995-1996) and Salvador de Madariaga Fellow (2004) at the European University Institute (EUI, Florence). Since 2010, he has been appointed Affiliated Scholar at the Global Governance Programme at the EUI.
RESEARCH:
Transitional justice in the EU: dealing with legacies of repressive pasts and shaping the understanding of the European polity
This project reviews EU political and legal developments in the domain of transitional justice. Historically, different actors (intellectuals, scholars and politicians) have constructed discursively the interpretation of the EU as a guarantee of non repetition of past wrondoings. The EU is normally referred as the provider of goods such as “reconciliation”, “peace”, etc and, in this way, it fits functionally within the paradigm of transitional justice. However, very few specific control mechanism have been included in the EU legal panoply. Two cases are worth noticing in this respect; the first being the provision protecting EU values (democracy, human rights) from their encroachment by national governments by means of eventual suspension of membership. The second refers to the fight against racism and xenophobia which the Treaty of Amsterdam put as an explicit EU objective and, additionally, placed racial discrimination under the principle of non-discrimination of EU law Art. 29 T and art. 13 EC Treaty). Lately, the EU has advanced on the domain of criminal prosecution of crimes of denial of Holocaust. Additionally, the EU has advanced some measures on memorialization policies (i.e. commemoration dates such as 27th January or 23rd August) and it has developed mechanisms which serve as soft guarantees of non repetition. However, by and large, Member States have developed their own domestic policies on transitional justice and the EU, a priori, did not have a significant role in these policies.
The project looks at issues currently addressed by the EU such as the treatment of the claims for recognition coming from Central and Eastern European member states and their challenge on EU established narratives and the establishment of conditionality policy towards Balkan applicants which includes a demand for engaging in domestic and international mechanisms of criminal justice to address past wrongdoings.
Judicaël Etienne earned a PhD in Law from the University of Louvain (UCL), Centre Ch. De Visscher pour le droit international et européen (CeDIE), in September 2010. He had graduated from UCL with a Law Degree in 2001 and holds an LLM in European Law from the University of Leipzig (2003). Judicaël was Research Fellow and Teaching Assistant at the UCL Faculty of Law and lecturer at the UCL Institute for European Studies. Judicaël’s research focuses on EU External Relations Law and International Law. His doctoral thesis explores disconnection and substitution clauses under Treaty Law and EU Constitutional Law.
RESEARCH:
A Link Connecting EU Law to International Law: An EU Constitutional Principle of Loyalty towards International Law?
In line with the Lisbon Treaty, the research project suggests the recognition of a constitutional principle in EU Law providing for loyalty towards International Law. In addition to the theoretical interest of expressing a connection linking and articulating the relationship between two related legal systems, the principle could have practical impact on EU Procedural Law.
The relationship between International and EU Law may be expressed as a harmonious combination of internal autonomy and international loyalty. The research project relies on the idea that the phenomenon of friendliness or openness towards International Law might be recognized as an EU constitutional principle covering the questions of reception, effect and reliance on International Law.
International Law formally requires from its subjects that they act in compliance with their international commitments. Whereas this principle is acknowledged in European Law, the possibility of relying on International Law is either undetermined or subject to strict conditions. International loyalty would therefore define and clarify the statute of International Law within the EU legal system and allow for a critical look at the issue of the relationship between International and EU Law. The research project intends to examine possible sources, scope and effects of a principle providing for international loyalty.
Jan-Peter Hix is a legal adviser in the Legal Service of the Council of the EU. As a member of the external relations team he advises, in particular, the Trade Policy Committee and the Trade Questions Working Party of the Council. He has represented the Council in a considerable number of cases before the Court of Justice and the General Court of the EU.
Before joining the Council Legal Service Jan-Peter worked as a lawyer with the law firm Bruckhaus Westrick Stegemann and, previously, as an assistant at the Department for European law of the University of Hamburg.
He obtained a Dr. iuris from the University of Hamburg and a LL.M. from NYU School of Law. He has published a book and some articles on EU law.
RESEARCH:
Agreement-consistent interpretation and other forms of judicial accomodation of WTO law by the courts in European Union and the U.S.A.
With the proliferation of multilateral international treaties, the issue of the effects of international law obligations in domestic legal orders becomes increasingly pertinent. Jan-Peter's research would explore one particular aspect of this issue: the indirect effect of WTO law in litigation before the US and EU courts.
The principle according to which the rules of the WTO Agreements and the WTO dispute settlement reports have no direct effect and can in principle not be invoked before the courts in order to invalidate domestic measures is established both in the US and the EU legal systems.
By contrast, the question of the possible indirect effect of WTO law before US and EU courts has not yet found a definitive answer. Before US courts, the answer depends notably on the relationship between two potentially conflicting doctrines: according to the Charming Betsy canon of interpretation, statutes are construed, so far as reasonably possible, in such a way that they do not violate international law; whereas the Chevron defense grants deference to administrative agencies' reasonable interpretation of statutes. In the EU, the Court of Justice recognizes the principle that EU legislation must, so far as possible, be interpreted in a manner that is consistent with international law. At the same time, the Court recognizes that the EU institutions have a considerable margin of appreciation, in particular when complex economic issues are at stake.
The research would, first, analyze the respective constitutional and statutory frameworks within which US and EU courts act in such cases. The study would then attempt to categorize the issues, on the basis of the concrete circumstances of specific cases. These circumstances include, inter alia, the nature of the specific WTO law obligations invoked, the nature of the contested domestic measures, and the degree of authority, if any, attributed by the courts to the relevant WTO law. Finally, the study would evaluate the similarities and differences in the approaches adopted respectively by the US and the EU courts in this respect, and attempt to elucidate the reasons for these similarities and differences, as well as the consequences.
 Jean-Claude Piris serves as Legal Counsel of the European Council (Presidents or Prime Ministers of the 27 Member States) and of the EU Council of Ministers, Mr. PIRIS participated in all important decisions taken over the past 20 years by the EU, notably the adoption of new Treaties (Maastricht, Amsterdam, Nice, Constitutional Treaty, Lisbon), and the solutions to the problems caused by their non-ratification. He participates in the EU's legislative work, in the work aimed at helping the euro zone in the current crisis, and in organising the new European External Action Service.
He is Director-General of the Legal Service (270 officials including 130 lawyers) which provides oral and written advice to the Council and the committees preparing its work, which helps in drafting EU law, and which acts as Council's advocate before the EU Courts.
Mr. PIRIS is a French Conseiller d'Etat, a former diplomat to the UN and former Director of Legal Affairs at the OECD. He has written articles and books, most recently : "The Lisbon Treaty : a legal and political analysis" (Cambridge University Press , June 2010, 400 pages).
RESEARCH:
The Case for a Two Speed Europe
During my fellowship, I plan to deepen the reflection on the European Union that I began in the concluding chapter of my recent book "The Treaty of Lisbon : a legal and political analysis" (Cambridge Univ. Press, June 2010). I believe that the Treaty of Lisbon has not put an end to the major imbalances which affect the Union. These imbalances, some of which are due to the fact that the EU remains a classic international organisation in some areas, whereas it works in a federal way in other areas, go to the very core of the European project. They create uncertainty and may be a cause of instability; in any case, they make it difficult for the EU to continue to work effectively in a durable way. The most serious of these imbalances are the following :
- The first one concerns Economic and Monetary Union. The euro - that is, the monetary part of EMU - is managed in a 'federal' way by the European Central Bank, but its economic part - that is, budgetary and economic policies - remains almost completely in the hands of the Member States. A monetary union which is based on loose rules on budgetary/economic governance will remain incomplete and, therefore, will not guarantee stability.
- The second one concerns the internal market, whose aim and effect are to open the internal borders to a free flow of goods, services, capital and workers. This aim has more or less been achieved, with the corollary condition that European legislation prevents distortions of competition between Member States. However, as differences in fiscal and social laws are not considered as distortions of competition, Member States retain almost complete freedom in those fields, hence the tensions over what some call 'fiscal or social dumping'.
- The third imbalance concerns the free movement of persons. The EU allows the free movement of persons inside its borders, and the rules and instruments regulating this freedom are decided in a 'federal' way. However, Member States keep their power to grant their nationality to non-EU citizens, or to allow them to immigrate for long-term stays, thus offering them complete freedom to move to any other EU State.
- A fourth imbalance concerns participation in EU military operations : the way it works is that the Member States which decide to participate with troops also have to pay for their expenses. Therefore, they 'pay twice' (men and money), whereas the Member States which do not participate with troops do not contribute to their financing, even though the military operations are carried out on behalf of the EU. This reflects the reduction of public budgets for defence in Europe.
- Last, but not least, the most important imbalance concerns the EU's political legitimacy : as competences to adopt legislation were transferred by the Member States to the EU, this reduced the powers of their national parliaments. In parallel, Treaty after Treaty, more powers were given to the European Parliament. However, with steadily falling turn-outs in elections to the European Parliament, the MEPs are elected by fewer and fewer voters. The truth is that there is no political game at the European level. The political game continues to be played out almost exclusively at the national level, in each of the 27 Member States. As a result, citizens think they do not have enough control over the way the decisions and laws are made at the European level and they feel that they have less control over the political decisions which affect their life and their future.
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If this analysis is - even partially - accurate, the EU's present construction will hardly be able to remain stable in the future. These imbalances not only prevent the EU from developing further, they also risk preventing it from functioning in a satisfactory and sustainable way. Moreover, these imbalances have become more and more difficult to overcome. Although they existed previously, the successive EU enlargements have led to more heterogeneity - geographical, historical, cultural and economic - between the Member States. Therefore, difficult discussions and decisions are required in the years to come. As the EU is and will remain not only desirable, but also necessary in order to preserve peace, freedom and prosperity in Europe and to meet the challenges of the future, there is no other way for it than to regain the support of its citizens. This major issue will not be resolved without strong political will, as it implies a change of political culture. In the absence of such political will, one may expect a stagnation of the EU.
However, the fact remains that the methods followed in the past - inter-governmental co-operation and classic international organisations - have proved to be less effective and less democratic than the (imperfect) EU.
 Diletta Tega is a researcher of Constitutional Law at the University of Milan - Bicocca, School of Law. She is lecturer of Public Law and Protection of Fundamental Rights, at the University of Bologna, graduate degree in International cooperation, regulation and protection of fundamental rights and etno-cultural inheritance. She received a J.S.D. in Constitutional Law from the University of Bologna, School of Law in 1998. She obtained a PhD in Constitutional Law from the University of Bologna, School of Law and the University of Paris X Nanterre in 2003. She is also Junior expert for the European Union Agency for Fundamental Rights (FRA).
Her research interests fall broadly in the field of fundamental rights and the so called multilevel protection of rights. She studies in particular the ECHR and the Italian Constitutional Court jurisprudence on religious freedom and the so called new rights. She has published studies in many different fields of constitutional, comparative and European Union law.
RESEARCH:
Religion in the Public Educational Sphere: how to keep together neutrality and pluralism?
In the last ten years or so the theme of secularism of contemporary European legal systems has been a topical subject. In particular the issue of religious symbols in the public space has given rise to widespread debate on the scope of the state’s neutrality. Indeed before that freedom of religion was not considered among the most controversial fundamental rights, at least not in Europe. As we all know a huge amount of literature, not only legal, has been written on this theme, becoming over the years a source of vigorous legal and political controversy.
Needless to say this is a complex and slippery theme, however, I believe that, above all with regard to Europe and Italy, there is a need to re-address this topic, focusing on the conflicts that have arisen in relation to "the place" of religious symbols in the public sphere, and, specifically, in State schools. The strong reactions to the ECtHR decision Lautsi v. Italy demonstrate that the matter is highly controversial in the context of contemporary constitutionalism. The national judges have not only given different answers to the same questions, in accordance with the different concepts of secularism at national level, but also conflicting solutions to the same problem. Thus there is a kind of fragmentation of the issue.
Furthermore, the existence in Europe of a supranational Court of rights makes this topic a supranational issue, increasing its complexity and contradictions.
The basic questions underlying my project are:
- What is the meaning of secularism concerning religious symbols?;
- How can the State be neutral? In the sense of not imposing an orthodox option on citizens, concerning religious symbols. If the State removes religious symbols from the public sphere can it be defined as neutral or on the contrary as imposing a “militant secularism”? Once we have elaborated a clear constitutional definition of these terms we have to verify whether it is possible to apply it in a uniform manner not only to religious symbols, but also to religious precepts. For example Switzerland bans crucifixes and Muslim scarves (for teachers) but exempts Muslim girls from compulsory swimming lessons at school. Where is the uniformity?
At this point a crucial issue emerges. One of the difficulties that I met in applying the principle of uniformity to each case is, for example, linked to the different kinds of symbols we have to deal with, like hijab, burqa or niqab, and crucifix. I believe that banning hijab (the Muslim scarf that covers only the nape of the neck and the neck) would be an unacceptable violation of religious freedom. On the contrary I think that banning burqa or niqab (they completely cover the body, burqa even the eyes) would not be a violation of that freedom.
These two last symbols provoke, at least in Western societies, a deep emotional crash. It have to be stressed the importance of the political, legal and social context, in which we place the reflection on religious symbols. Part of doctrine believes that it would be wrong to eliminate the crucifix from the schoolrooms of traditional Catholic States (Italy, Poland, Spain, Ireland, etc.) because, again, it would be an unacceptable violation of religious freedom. At the same time several scholars have proposed that those legal systems should allow those who are not religious or practice a different faith to put their symbols alongside the crucifix. My purpose in the paper is to show that freedom of religion and the general principles of non discrimination and pluralism have to be re-read together in order to get a more effective balance, and a reconciliation among constitutionalism, secularism and religion in the era of globalization and religious revival.
In the paper I will refer to the positive law (both case law and legislation) of several European countries with the purpose of drafting a new proposal for Italy concerning in particular the issue of religious symbols and school education.
 Michelle Q Zang just defended her PhD thesis in July at Durham Law School, UK. Her thesis is titled “The EU-China relations as a Paradigm of WTO Contingent Trade Protection under the Transitional Mechanisms”. Michelle holds a LLM (Distinction) in European Legal Studies from Durham University and obtained the Bachelor in Law from Fudan University, China. She received the “Best Performance Award” for Postgraduate Students and has been teaching in European law and international trade law since 2008 at Durham University.
RESEARCH:
China’s Accession to the WTO Government Procurement Agreement: Challenges and Prospective Furtherance
This project aims to investigate the government procurement system of China and seek for the reform direction towards a competent domestic system in accordance with the international disciplines. It mainly consists of two parts of studies: the assessment of China’s WTO implementation in government procurement and a comparative study of the procurement mechanism between the EU and China. The first part examines China’s procurement practice in terms of the envisaged GPA accession with the attempt to explore the major challenges and deficiencies in the current regime. The second part comprises a comparative study between the EU and China, which will search for the potential resolutions for, on the one hand, the slow-paced policy development in government procurement at the WTO and on the other hand, the prospective furtherance of the procurement regime in China. 
Martin A. Schain is Professor of Politics at New York University. Among other books, he is the author of The Politics of Immigration in France, Britain and the United States: A Comparative Study (Palgrave, 2008), French Communism and Local Power (St. Martin's, 1985), and co-author of Politics in France (Harper-Collins, 1992). He is co-editor and author of Comparative Federalism: The US and EU in Comparative Perspective (Oxford, 2006) and Shadows Over Europe: The Development and Impact of the Extreme Right in Europe (Palgrave, 2002). Professor Schain is the founder and former director of the Center for European Studies at NYU and former chair of the European Union Studies Association. He is co-editor of the transatlantic scholarly journal, Comparative European Politics.
RESEARCH:
The Border: the Immigration Dilemma and the State
Since the end of the Second World War, the number of people crossing international borders without proper documentation in Europe and the United States, and the number of undocumented residents, has steadily increased. State authorities have reacted in a variety of ways to this challenge. Many states in the West, including the United States, generally accepted—even encouraged—this pattern of immigration, at least for a limited period of time. Others have attempted to strenghthen the border, and have created new instruments to deal with the frontier. Most have done both, sometimes at the same time, sometimes during different periods.
This project will focus on the politics of border control and enforcement in Europe and the United States, and the implications for law, justice and punishment. I will analyze cycles of border enforcement, the dynamics that have driven enforcement; the laws and administrative instruments that have been developed to strengthen the border, how they have been used, and how successful they have been. In this project, I will look at the open/closed frontier as a variable that can be explained by politics and the policy process. Differences within countries over time, and differences among countries, I argue, can be explained in the same way.
Professor Franz C. Mayer holds the Chair in Public Law, European Law, Public International Law, Comparative Law and Law and Politics at the University of Bielefeld (Law Faculty). He studied Law, Political Science and History at the Universities of Bonn and Munich and at the Institut d’Études Politiques de Paris (Sciences-Po). LL.M. (Yale Law School) 1995; Dr. iur. (University of Munich) 1999; Habilitation (Humboldt University) 2005. He was Visiting researcher at Harvard Law School 2000; Visiting lecturer at University of Warsaw since 2000; Visiting professor at Paris 1 (Panthéon-Sorbonne) 2007 and at Paris 2 (Panthéon-Assas) 2010. Professor Mayer was Counsel to the German Parliament in the Treaty of Lisbon-trial at the German Constitutional Court in 2008-2009, and is currently counsel in the case pending on the Euro stabilization mechanism.
RESEARCH:
Parliaments and Globalization – Parliamentarianism in Times of Europeanization and Globalization
The dream of a World Parliament has to a large extent remained a dream. Globalization and Europeanization have led to an increasing amount of international, transnational and sometimes even supranational co-operation. At the same time, international, transnational or supranational parliamentarianism has not been the central topic of globalization and Europeanization. It appears even that parliaments may turn out to be on the losing side of these developments. Governments and ministerial bureaucracies are perceived as the key players, emerging as the actual law-makers in a globalized word.
Is parliamentarianism bound to become irrelevant because of globalization? Was parliamentarianism just a temporary phenomenon that emerged in the 18th and 19th century, in order to be gradually overcome in the 20th and 21st century? Are we witnessing the final days of parliamentarianism? And if parliamentarianism is changing, what about democracy?
I would like to explore these questions starting out from the European Union experience, pursuing a comparative perspective. European integration points to the fact that there are two perspectives in the present context: on the one hand the question of parliamentarianism beyond the nation-state, on the other hand the changes traditional parliamentarianism in the nation-state undergoes. With the European Parliament, the EU has created some unique form of international parliament. At the same time, European integration has also transformed national parliaments in the EU. It is the national parliaments I am particularly interested in, because here a comparative approach with developments outside the EU is of particular interest. At the same time, I would not want to limit my analysis to the impact of Europeanization on national parliaments, I am also interested in the impact that other realms of internationalization and globalization have on national parliaments in the EU Member States and elsewhere.  Armin von Bogdandy is Director at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg and Professor of Public Law at the Goethe-Universität, Frankfurt/Main. He is President of the OECD Nuclear Energy Tribunal. He was member of the German Science Council (Wissenschaftsrat). In June 2008 Prof. Bogdandy received the Berlin-Brandenburgian Academy of Sciences Prize for outstanding scientific achievements in the field of foundations of law and economics, sponsored by the Commerzbank Foundation. Member of the Scientific Committee of the European Union Agency for Fundamental Rights (2008-2013). He was invited to be the Inaugural Fellow at the Straus Institute for Advanced Study of Law and Justice, New York University, Academic Year 2009/2010. Global Law Professor at New York University School of Law in 2005 and 2009. Appointment as a Senior Emile Noël Fellow from Global Law School Personnel Committee of the New York University (2010-2015).
RESEARCH:
Developing the Publicness of Public International Law
The research project aims to develop a distinctly public law approach to the deep transformation in the conduct of public affairs epitomized by the term global governance. I am intrigued to find in many policy fields an increasing number of international institutions playing an active and often crucial role in decision-making and policy implementation, sometimes even affecting individuals. Although the discourse on global governance provides important new perspectives on phenomena of international cooperation, it is deficient from a public law perspective as the concept of global governance does not allow for the identification of what the focus of a legal discourse should be, i.e. those acts by which unilateral authority is exercised. Such unilateral authority is the greatest challenge to the basic principle of individual freedom. Public law, at least in a liberal and democratic tradition, concerns the tension between unilateral authority and individual freedom, and is a necessary requirement for the legitimacy of public authority, which is both constituted and limited by public law. In order to provide a basis for legal analysis and to identify phenomena that need justification, the project is focusing on the exercise of international public authority. Any kind of governance activity by international institutions, be it administrative or intergovernmental, should be considered as an exercise of international public authority if it determines individuals, private associations, enterprises, states, or other public institutions. This concept shall enable the identification of all those governance phenomena which public lawyers should study. Proposing this concept means complementing the concept of global governance with a concept more appropriate for legal analysis and the development of legal standards for legitimate governance. On a more general level, this concept should contribute to a deeper understanding of the historic transformation underlying the concept of global governance. On this basis a public law approach to the exercise of international public authority is to be developed. This shares the aim to better understand and develop the law relating to international governance activities with recent streams of legal research such as the Global Administrative Law movement, the research on an emerging international administrative law, as well as the debate surrounding the constitutionalization of international law. It holds that a synthesis of these approaches is best suited to provide a meaningful framework for analysis and critique. |
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