Editorial | Volume 25 No. 2
The German Law Journal editorial team is delighted to bring to you the second issue of this year, which maintains a focus on fundamental, human, and social rights throughout.
Csongor István Nagy’s paper concerns the ‘diagonal’ application of the European Union (EU) Charter of Fundamental Rights, and discusses how both legal scholarship and case law have tried to create either a consistent or coherent doctrine for diagonal application. Providing a comprehensive account of these efforts, this article takes the position that the Charter’s diagonal application is ‘an accessory of the doctrine of supremacy and not a shift of constitutional power’, and argues in favour of a doctrine of displacement.
Lino Munaretto considers the concept known as the “proviso of the possible,” initially established by the German Federal Constitutional Court and subsequently applied by other constitutional courts. Undertaking a wide-ranging comparison of constitutional jurisprudence concerning fundamental rights conflicts over public resources, and taking into consideration why established standards of judicial review fail to resolve complex distributive conflicts judicially, this article pursues a contextualised and theoretical investigation of this concept.
Next, and in terms of automated decision-making, Francesca Palmiotto proposes to ‘complement the legal protection in the GDPR and AI Act with a taxonomy that can inform a fundamental rights analysis’. This taxonomy is geared towards facilitating a better understanding of automation in decision-making with a view to safeguarding individuals and protecting individual rights within an increasingly algorithmic society.
Hinako Takata undertakes a comparison of non-governmental organisation (NGO) and national human rights institutions (NHRI) participation with a view to ascertaining whether or not the roles and values of stakeholder participation are qualitatively different for these, and – if so – in what manner. Separating out these new, non-state actors, this article aims to shed light on what values are brought to treaty body activities by stakeholder participation.
Veljko Turanjanin and Jelena Stanisavljevic’s article sets itself the task of explaining the Strasbourg Court’s case law concerning human trafficking and forced prostitution under Article 4 of the European Convention on Human Rights. The authors consider whether, and in what manner, human trafficking and forced prostitution fall under the protection of the Convention, and lead the argument that all forms of prostitution without consent fall within the scope of Article 4.
In her article, Rangita de Silva de Alwis takes as her focus the issue of gender persecution, and sets the aim of creating a new narrative for international accountability processes for gender persecution. Undertaking an analysis of gender justice in international law, this paper takes the position that Taliban policies deprive women of their fundamental human rights, and so constitute the crime of gender persecution.
Concluding this issue is Francesco Lucherini’s article considers the constitutionalisation of social rights in Italy, Germany, and Portugal. This comparative constitutional approach takes these three jurisdictional approaches as ‘prototypical cases’ that are indicative of potential for generalisation, and relies on these insights to inform a discussion of opposing positions in the global social rights debate.
As always, happy reading.
Jen Hendry,
on behalf of the GLJ Editors in Chief.
