Editorial | Volume 25 No. 1

A new issue of the German Law Journal opens with a distinctive criminal justice flavor, as both of the opening articles engage with issues concerning crime. Otava Piha’s aim in her article is ‘to find a thought framework that allows us to compare sexual crimes and property crimes without reducing people to objects or forgetting about human dignity’. She makes the case that this comparison elucidates the role played by autonomy – understood as scalar, relational, and multidimensional, and as ‘an enabler of human interaction – and proceeds to distinguish between autonomy over property and sexual autonomy with a view to resolving practical problems with consent-based rape laws.

Sticking with criminal justice, this issue’s next article, from Anton Moiseienko, considers targeted sanctions – that is, sanctions directed at specific individuals or groups – as a novel yet significant ‘criminal justice tool in everything but name’. Moiseienko leads the argument that, while at the moment targeted sanctions, such as asset-freezing and travel bans, occupy a shadowy ‘netherworld between diplomacy and economic coercion’, these should be ‘normalized’ as a conventional tool of criminal justice. He further makes the case that ‘a coherent set of principles is required to determine their relationship with other responses to criminal behavior’.

Anatoliy Ryzhenkov and Aleksey Anisimov’s article moves us into the realm of international environmental law, and the ‘new legal reality’ whereby ‘the harm doer is unknown to the affected party, and it is impossible or difficult to establish their identity’, thus rendering impossible the recovery of compensation for the harm caused. In a wide-ranging paper that considers those issues of harm caused by satellite collisions with space debris, climate change, and pollution of the World Ocean, the authors establish the view that only a ’combination of international and national law can … create an effective mechanism to counteract the illogical situation of lack of compensation to persons affected by environmental torts in cases of no specific tortfeasor’.

Next, Sofiya Kartalova – in her first article of two in this issue! – problematises the ‘originator control principle (ORCON)’, under which European Union Member States’ national intelligence services are able to restrict European Parliamentary access to confidential data necessary for Europol’s effective exercise of joint parliamentary scrutiny. Citing this ORCON principle as a ‘major impediment to intelligence sharing in practice’, Kartalova employs the insights of trust theory to argues in favour of a ‘broader and more productive conceptualization of trust’ within the EU.

Mark Konstantinidis’ article – like Piha’s above – concerns autonomy, although in this case it is the EU principle of autonomy. Focusing on international organizations (‘IOs’), this article purports to explore the ‘relatively unexplored’ relationship between autonomy and international law. It leads the argument that there is ‘a positive correlation between the degree of an IO’s autonomy and the robustness of the dispute settlement mechanisms for which it provides’, and concludes that, while autonomy does not yet seem to constitute a principle of international law, this is not the case in the EU.

Continuing this discussion of principles, the third article in this vein comes from Małgorzata Kozak, who discusses the media pluralism principle. This paper analyses the place of media pluralism in EU law, and poses the intriguing question: ‘how do we ensure that public funds supporting such broadcasters do not undermine media pluralism by distorting citizens’ rights to be informed?’ In situations where EU values have been violated, Kozak makes the case that, under state aid rules, the European Commission is not only empowered to act to protect media pluralism but also obligated to do so.

This issue concludes with Sofiya Kartalova’s second article, which also uses trust theory, this time to inform her discussion of the hypothetical scenario whereby Article 7(2) TEU is activated simultaneously against more than one backsliding EU Member State, the titular ‘bad apples’. She argues against the idea – promulgated by Dimitry Kochenov – of extending the voting exclusion from the Member State in question to ‘cover other Member States currently undergoing the same scrutiny under Article 7(2) TEU’, warning that this is likely to be ineffective and, moreover, through the levels of distrust likely to be generated, has the potential to jeopardise the EU legal order.

As always, happy reading.
Jen Hendry
on behalf of the GLJ Editors-in-Chief