Suchergebnisse

Discusses Grundrechtsentfaltung im Gesetz (Development of Basic Rights within the Law) by Matthias Jestaedt (1999), which deals with the development & theories of basic rights, & takes a stand against the dismantling of concise boundaries & differentiations. In the center of his examination stands the increased prominence of basic rights, the principle of proportionality, & the method of weighing. Jestaedt presents a theory of law & uses a methodology that adequately captures the given object -- basic laws -- & provide a legally binding interpretation. The author contends that today the traditional concept of a source of law & a hierarchy of rights, as well as the idea of a sole original law-generating source are long outdated. E. Sanchez

Crises are not only a test for society, they also pose a challenge to the legal order. This is revealed by the worldwide handling of the Coronavirus SARS-CoV-2 and the COVID-19 disease with a clarity that until recently probably nobody thought possible. Even in liberal democratic states, far-reaching restrictions on personal freedoms have been imposed, including lockdowns.
In addition to questions of proportionality, the scope of the parliamentary prerogative in the Corona crisis has been under discussion in Germany since March 2020. Contrary to some voices in legal literature, even serious encroachments on fundamental rights can be justified, at least temporarily, by executive orders based on the general clause under infection control law and its cursory clarifications. Though, as the duration and complexity of crisis management increases, so too does the constitutional exigency for fundamental decisions by the legislature.
The question of parliamentary prerogative also arises in the discussion about compensation payments, for example, for closure of businesses and other establishments during the lockdown. Since special provisions of infection control law often do not apply, some advocate a recourse to unwritten state liability law. However, this law is only geared to selective compensation and does not usually provide a legal basis for state liability in the Corona crisis. Here, too, the legislature must make improvements, if encroachments on fundamental rights – namely on the freedom of property – are no longer deemed proportionate without financial compensation. When assessing proportionality, however, the numerous aid programs must be taken into account.

The article provides an overview of the development of case law in the field of police law over the last six years. Against the background of selected aspects such as the differentiation of the central dogmatic figure of the concept of danger and, above all, the information based interventions of the police which have been shifted further and further towards an approach of precaution, the article analyses some important decisions of the Federal Constitutional Court and critically examines some aspects of the development as well as some important clarifications. However, it cannot be overlooked that case law continues to give the legislator very detailed specifications within the framework of the principle of proportionality, which can easily end up in a petrifaction of the circumstances, especially against the background of possible technical developments and possibly increasing needs for prevention. A considered look at the advantages and disadvantages of the future use of new digital investigation tools could open up new possibilities for the legislature beyond the existing solutions.

Environmental governance is - not least as a result of European Union legislation - increasingly based on economic instruments. In the field of waste policy long-winded political debates on the introduction of packaging waste charges have been a case in point. More recently, the political attention has shifted to local waste charges. The specification of the latter occurs within a complex framework of general legal principles related to fee collection (like the principle of cost recovery), constitutional principles (principles of proportionality and equality), federal law, as well as local statutes. Against this backdrop, the central problem addressed by this article refers to the question if and to what extent waste charges may actually entail incentives for waste avoidance and this way might constitute an elementary cornerstone of national waste governance. Adapted from the source document.

This is a polemic commentary on Christian Tomuschat's (2006) interpretation of the Israel vs. Hisbollah conflict in Lebanon in summer of 2006. The topic discussed is the application of the international law of armed conflict in asymmetric situations involving states & nonstates. It is argued that recent wars between state & nonstate actors can no longer be interpreted in the light of the classical model of armed conflict between two nation-states. This model is based on the historically debunked & invalidated premise that only nation-states enjoy the monopoly & legitimacy of exercising physical violence. Lebanon is characterized as a failed state & Hisbollah is defined as a political actor without institutional or territorial basis which, nonetheless, can be treated, from the international law perspective, as an actor with a parity status to that of a state. However, this approach needs to resolve the strong vs. weak asymmetry associated with warring parties of which one is a state & the other is not. Issues of double standard, proportionality of military response, & preferential treatment of nonstate actors need also to be addressed. Z. Dubiel

A commentary on the polemic between Christian Tomuschat (2006) & Michael Wolffsohn concerning the international law implications of Israel's attack against Hisbollah in the Lebanon war of 2006. The issues of the legal right to wage war, proportionality in exercised violence, & humanitarian respect of civilians are at the center of the discussion here, as Tomuschat's & Wolffsohn's views are considered & compared. The arguments of both, as the former criticizes & the latter supports Israel's military actions in Lebanon, are assessed from the perspective of international law. The larger problem of asymmetric conflict between states & nonstates is addressed, drawing also on the lessons of the US response against Al Qaeda in Afghanistan in the aftermath of September 11. Three positions are characterized vis-a-vis the ethical aspect of violence in international context: (1) political realism, (2) pacifism, & (3) the theory of justified war. The ineffectiveness & counter-productiveness of the "Land for Peace" approach in Middle East peace negotiations are also examined from the perspective of balance of power in the region & asymmetric conflicts between states & nonstates, ie, Israel vs PLO/Hamas & Israel vs Hisbollah. Z. Dubiel

Surplus mandates are a peculiarity of the German electoral system. Surplus mandates emerge when a party gains more constituency seats than the total amount of seats to which it is entitled according to the proportionality principle as determined by its share of second votes. Until Reunification in 1990, surplus mandates were only negligible phenomena. However, since then their number & relevance has dramatically increased. In the federal election of 2009, 24 surplus mandates emerged, more than ever before. This increase is foremost the consequence of the changed structure of the party system, which is now an established 5-parties-system with two comparatively minor big parties. Surplus mandates are on the one hand a problem of constitutional law while on the other hand they represent a violation of fundamental principles of fairness & justice. One solution for all these problems would be to create two-member-districts for the representatives who are directly elected on the first vote. Adapted from the source document.

The NATO air strikes to end ethnic cleansing in Kosovo have renewed the ongoing controversy regarding the application of force. Yugoslavia & Russia take the position that such action violates the UN Charter's ban on aggressive use of force & is illegal. While most articles focus on the legality or illegality of humanitarian intervention, this issue has been raised to the level of the International Court in The Hague & requires a systematic approach. Arguments against the Yugoslavian & Russian stance could be based on the concept that according to the proportionality principle, threatened & applied force is not against UN principle, but rather, furthers the aims of the UN in such extreme cases of ethnic cleansing & takes precedence over territorial sovereignty. Should such a stance be discounted, the intervention can still be justified on the basis that Yugoslavia initiated the aggression, though against its own people, the intervention was an emergency measure, or that reprisal was required for such a severe violation of international law. L. Kehl

Financial solidarity for the economy, which has been severely affected by the pandemic, is appropriate and is constitutionally required in essence, but it is not a task of state liability. The necessary aid for hundreds of thousands of businesses far exceeds the functional limits and legitimacy of the general legal institutions of liability for lawful state action ("Aufopferungshaftung"). They are also not a subject of statutory protection against infection ("Infektionsschutzgesetz"). The state, which may be constitutionally obligated to take far-reaching and drastic protective measures in the event of an epidemic, must not be prevented from fulfilling this obligation by the burden of of legally determined financial compensation on a big scale. And the legislator of infection protection law cannot responsibly make such a regulation aimed at compensating ex ante incalculable economic losses. The thesis that is sometimes put forward of a right to compensation for the Corona losses of affected companies based in the fundamental rights also proves to be problematic. Shutdown measures against certain industries or types of trade that can plausibly justified by legitimate reasons – particular risk of infection, lesser need for the vital functions of society and the economy – do not violate the principle of equality. They are therefore not special sacrifices in the sense of compensation law. Furthermore the principle of proportionality is sufficiently elastic to justify pandemic-related restrictions without financial compensation. Fundamental rights do not really provide a more precise and stringent standard for the task incumbent on society of distributing the unequal Corona burdens than does the welfare state principle. The Corona pandemic and its economic consequences should therefore not be taken as an incentive to commercialize fundamental rights on a scale previously not thought possible for good reasons. Instead, in the face of the concrete situation of a pandemic, politically negotiated and parliamentarily accountable ad hoc aid programs of the legislature or the empowered governments are far better suited to meet the enormous challenge.

Since the terrorist attack on Berlin's Breitscheidplatz took place in December 2016, German state interior ministries deport potential top terrorists in the accelerated procedure under section 58a Residence Act (AufenthG). As a legal consequence, section 11‍(5) Residence Act imposes a lifelong entry ban to foreigners who have been deported on the basis of § 58a Residence Act. In defining the requirements for deporting potential top terrorists, the ministries do not refer to the foreseeability of a concrete terrorist attack, but to the risk arising from the person concerned. Consequently, deportation orders can also be issued to persons who, although identifying with radical extremist Islamism, would not have committed terrorist attacks in case they had stayed in Germany. This practice of accepting misjudgements, that is of deporting "the wrong", for the sake of public security forms part of the broader concept of fighting terrorism pre-emptively.
The paper reveals that there is a twofold need for reform of the German lifelong entry ban for potential top-terrorists: It arises, on the one hand, from the fact that section 11 Residence Act violates EU law requirements of the "Return Directive" and, on the other hand, from the constitutional principle of proportionality. De lege lata, this principle is infringed because the legal consequence of a lifelong entry ban does not mitigate the deliberate acceptance of misjudgements within the framework of section 58a Residence Act. The paper argues that the constitutionality of pre-emptive security policy presupposes that the factual and legal consequences of misjudgements are reversible. As a consequence, the constitutionality of section 11 Residence Act with regards to potential top terrorists depends on setting time limits on entry bans.

Umweltrechtliche Regulierung bedient sich - auch unter europarechtlichem Einfluss - verstärkt ökonomischer Instrumente. Im Bereich des Abfallrechts wurde in diesem Zusammenhang lange über die Möglichkeiten und Grenzen kommunaler Verpackungssteuern gestritten. In jüngerer Zeit sind kommunale Abfallgebühren in den Fokus der Aufmerksamkeit gerückt. Ihre Ausformung bewegt sich in einem Spannungsverhältnis allgemeiner gebührenrechtlicher Grundsätze (Kostendeckungsprinzip), verfassungsrechtlicher Prinzipien (Verhältnismäßigkeitsprinzip, Gleichheitsgrundsatz), landesgesetzlicher Vorgaben und kommunaler Satzungshoheit. Vor diesem Hintergrund stellt sich die Frage, inwieweit Abfallgebühren im Spannungsfeld dieser Vorschriften Vermeidungsanreize enthalten und hierdurch Bestandteil eines Abgabenregulierungsrechts werden können.

This paper presents a survey of cáncer registries in Germany, their types, purposes and history, and discusses the problems of cáncer registration: medical confidentiality, data protection, extent of registration, effort-benefit ratio and legal regulation.