Five Grounds and a Persistent Gap

Abstract: The Court of Justice of the European Union has recently promoted a profound development by enhancing legal safeguards of women under European asylum law. In judgments WS, K and L, and AH and FN, the Court of Justice embraced a gender-sensitive interpretation of Directive 2011/95 and had invoked international instruments such as the Geneva Convention, the Istanbul Convention and the CEDAW as relevant for interpreting EU asylum provisions. These rulings solidify the Court’s evolving jurisprudence in favour of a refugee protection’s approach based on gender, acknowledging that women can be considered as belonging to a ‘particular social group’, under the Qualification Directive, based on elements such as gender or beliefs shaped by gender equality, which can constitute grounds for asylum. Also, due systematic persecution of women in Afghanistan, the Court has held that nationality and gender are enough to prove the risk of persecution, with no need of proving the individualized risk. Such jurisprudence enhances the legal recognition of gender-based violence, even when inflicted by non‑state actors, and affirms that said violence, and the denial of a protective response by the State, can amount to persecution or serious harm.

Ask a Political Scientist: A Conversation with Cynthia Enloe about Gender and Global Politics

The subject of this article is an attempt to establish coherent standards for preparatory proceedings within European legal systems. Substantive, procedural, and executive criminal law in continental European countries share a common foundation in Roman law. Nevertheless, sovereign states are free—within the limits set by international law—to shape their legal provisions, particularly in this area. Despite numerous differences, the author argues that certain common elements can be identified which link the models of preparatory proceedings across European states. The author highlights shared standards in preparatory proceedings through the lens of accepted human rights protection frameworks, such as those established by the Council of Europe and the European Union, which exert significant influence on criminal law. Moreover, the article underscores a fundamental issue for the European model of preparatory proceedings: the involvement of judicial authorities in such proceedings, which ensures the protection of human rights and fundamental freedoms. In conclusion, the author points to the challenges and ongoing transformations occurring in the broadly understood domain of European criminal procedural law.

The European legal system governing data protection issues is widely regarded as an adequate blueprint for late developers to follow. According to this position, host countries will benefit from receiving the ready-made data protection law because it has already gone through a process of trial and error in Europe. For example, China follows the traditional civil law measures on data protection, such as contractual and tort liability. No Chinese legislation deals specifically with the right to protection of personal data. In China, researchers paid attention to the European legal system, which is regarded as the milestone for data protection. Some vigorously suggest that China should quickly move to enact data protection law based on the model provided by European law.When Chinese researchers strongly promote the European legal system over data protection issues, they send an underlying message that the quality of European laws is good enough to sufficiently deter violations: Individuals would be prohibited from carrying out harmful actions as soon as the expected law is transplanted to China. From a Chinese perspective, our country could quickly move to enact a similar law following the tone of Europe in order to enhance the efficiency of data protection. But is this a compelling position? Will European data protection laws indeed regulate unambiguously and prospectively? Will European data protection laws provide clear guidance to Chinese judges for resolving data protection-related cases? And will the court-enforced laws sufficiently solve the broad spectrum of problems on data use? Understanding the European enforcement mechanism covering data protection issues, and thereby assessing its efficacy on deterrence, is vital to answering these questions.

The European Union (EU) has historically been a proactive player in advancing equality between women and men, and fighting gender-based discrimination. The past two decades have also seen the EU becoming a major actor in asylum law, with several EU secondary law instruments and a large amount of case law in EU Member States relating to the application of the 1951 Refugee Convention. Yet, these two areas of EU legislation – gender equality and asylum – have yet to become consistently connected. Similarly, judgments of the Court of Justice of the European Union addressing gender-related elements of asylum cases are scarce. Could the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) help bridge the gap? The Istanbul Convention identifies gender-based violence as an extreme form of discrimination and contains a whole chapter dedicated to women in the context of migration. This article sheds light on the yet-to-be-realized potential of the Istanbul Convention to amplify the protective power of the Refugee Convention in the EU. While at present neither the Common European Asylum System, nor its new iteration in the New Pact on Migration and Asylum, fully meets the standards of the Istanbul Convention, it may be expected that the EU’s accession to the treaty will further encourage a gender-sensitive approach in EU asylum law. The Istanbul Convention may well be a game changer for the protection of female asylum seekers, and possibly also for asylum seekers with other gender identities.

In many European legal systems, the provisions of medical legislative acts impose directly on healthcare professionals an obligation to act with due care. This imperative may be considered a basic principle of practising all medical professions, and even a generally accepted principle of medical law. Due care is the manner of conduct by medical professionals that meets the requirements contained in an objective and external standard of conduct created for each specific obligational relationship. Despite the differences between European legal systems, from a comparative perspective it is possible to notice similar factors taken into account when determining the standards of due care in medicine. This is because the conduct of medical professionals is largely determined by actual state of medical knowledge, medical standards and deontological codes relating to all medical professional activities. The aim of the article is to discuss in detail these issues in comparative perspective.

There are two different types of legal academic scholarship that are needed to lay the foundations for the gradual development of a Europe-wide system of private law. On the one hand, it is necessary to write books, articles and case books that deal with their subject from a European standpoint and therefore represent the rules of national legal orders as merely local variations on a uniform European theme. An alternative approach is to develop, for certain fields of law, rules that are accepted in all European states. This latter approach is that of the Trento Project. Its particular strength lies in the fact that it selects specific conflicts of interest as its starting point and for each of these conflicts investigates whether they are resolved by the European legal systems in similar or different ways. From one example taken from contract law (the good faith clause) it is shown not only that differences may exist between the various European legal systems, but also why that should be so.

Although the European Court of Justice rendered its Weber/Putz judgment as long ago as three years, the turmoil since then in both academia and practice has not abated. Indeed, the significance of the ‘proportionality principle’ for European contract law can hardly be overestimated, as the ECJ basically established by this judgment, with or without intent, a doctrine of general strict liability in contract law, which so far has only existed in but a few European legal systems beyond common law. This paper compares the reception of the Weber/Putz decision in a major Western European legal system (Germany) with the approach of a minor Central European legal system (Estonia), also taking into account the judgment’s impact on the future development of European contract law.

Modern legal history was born in Germany, at the beginning of the nineteenth century, with the particular purpose of providing an alternative to a legal system based on rational codification. These competing evaluations of the relationship between legislation and codification in European legal systems in the very age in which modern legal history as a discipline was being born still colour our understanding of the history of codification in late antiquity and the Middle Ages. During the Gregorian reform papal ideology embraced the twin tactic of legalising institutions and centralising powers of governance. The interaction of legislatively active government and a robust legal profession as both stimulant to and control over governmental action might well be the truly important nexus in explaining both consistency and growth of later medieval institutions. Keywords: European legal systems; Gregorian reform papal ideology; medieval institutions; middle ages; Modern legal history; rational codification

The main goal of this article is to examine to what extent citizens and their associations as a party in court proceedings can protect the environment in EU countries and Serbia, and also to identify main trends and limitations for access to justice in European legal systems. After analysing the three prevailing approaches to the regulation of locus standi in European countries, the aim of this article is also to determine the extent to which Serbian legislation fits into European legal systems. A normative-dogmatic method and a comparative legal method have been used in this article in order to analyse the legislation and practise in European countries in relation to the right of the public to protect the environment in administrative judicial proceedings. The article focuses on analysing the relevant international and national legislations and their implementation. The way in which locus standi is formulated is the key issue in exercising the right of the (concerned) public to initiate an administrative dispute for the protection of the environment and the protection of participation rights in environmental decision-making. Access to administrative courts in environmental matters usually implies that legal standing to initiate administrative disputes is granted to environmental civil society organisations (the public concerned), although citizens (the public) may also have standing in some cases.

This article examines how Türkiye evaluates the protection requirements of Afghan women fleeing from persecution in Afghanistan. It considers whether Türkiye grants refugee status to Afghan women as members of a ‘particular social group’ or on other Refugee Convention grounds. It analyses the jurisprudence of Türkiye’s Administrative Courts and Regional Administrative Courts concerning international protection claims lodged by Afghan women between August 2021 and June 2023 to determine whether Türkiye follows a gender-sensitive interpretation of the Refugee Convention and respects the principle of non-refoulement.

The possible reception of certain Islamic legal institutions in European legal systems – for instance polygamy – may clash with the fundamental rights and values enshrined in the European Convention on Human Rights. Two opposite interests are at stake here: on the one hand, protecting the legal and cultural identity of the Forum State and, on the other, respecting the diversity of other legal systems. This contribution clarifies whether and how it is possible to strike a balance between these opposite interests by means of private international law methods and techniques.

To the Uttermost Parts of the Earth shows the vital role played by legal imagination in the formation of the international order during 1300–1870. It discusses how European statehood arose during early modernity as a locally specific combination of ideas about sovereign power and property rights, and how those ideas expanded to structure the formation of European empires and consolidate modern international relations. By connecting the development of legal thinking with the history of political thought and by showing the gradual rise of economic analysis into predominance, the author argues that legal ideas from different European legal systems - Spanish, French, English and German - have played a prominent role in the history of global power. This history has emerged in imaginative ways to combine public and private power, sovereignty and property. The book will appeal to readers crossing conventional limits between international law, international relations, history of political thought, jurisprudence and legal history.

A European Legal System - View From America

This chapter focuses on the role of the European Court of Human Rights (ECtHR) in interpreting the defense rights enshrined in the European Convention on Human Rights (ECHR) and other European legal systems. In particular, it considers one aspect of European Union Member States’ compliance with ECtHR case law: the rights of suspects and defendants under Article 6 ECHR. The chapter first discusses the right of a suspect to be informed about the accusation against him, the right to legal assistance at the early stages of the criminal process, the privilege against self-incrimination, and the right to examine adverse witnesses. It then explores how the European Court’s jurisprudence has been received by the legislation and judge-made law in France and Germany. It shows that Article 6 ECHR and the ECtHR’s jurisprudence on various clauses of that article exerted an influence on domestic laws, at least in France and Germany.