9789177372721 by Smakprov Media AB

Rigmor Argren

ISBN: 978-91-7737-272-1

EDITED BY

drawn from a series of digital webinars entitled The Rule of Law Series, hosted by Juridicum at Örebro University Sweden, during the corona pandemic in 2021. In December 2022, participants from the webinars were invited to an on-site workshop at Örebro University entitled The Rule of Law in a 2022 Year’s Context – Unpredictability, Digitalisation and Crises. At the workshop additional scholars interested in aspects of rule of law joined the discussions. A second round of webinars was convened in the spring 2023, which extended the network of interested researchers even further. In this book, the rule of law kaleidoscope is examined thoroughly, and called into question. The volume contributions range from tax law, the role of the courts (specifically the EU and Strasbourg courts), digitalisation, environmental law, criminal law, and civil law. The collective enquiry undertaken in this book is guided by curiosity and a sincere desire to widely explore the adjustment and recalibration of the concept ’rule of law’ that may be required today. All is done with a desire to ensure that the rule of law remains viable in a transitional spectrum.

R U L E O F L AW I N A T R A N S I T I O N A L S P E C T R U M

THIS ANTHOLOGY is a collection of scholarly articles

R U L E O F L AW IN A TRANSITIONAL SPECTRUM

EDITED BY

Rigmor Argren

Rule of Law in a Transitional Spectrum edited by rigmor argren

© The Authors and Iustus Förlag AB, Uppsala 2024 Edition 1:1 ISBN 978-91-7737-272-1 Production: eddy.se ab, Visby 2024, Sweden Cover: John Persson Publisher’s address: Box 1994, 751 49 Uppsala, Sweden Phone number: +46 18-65 03 30 Web page: www.iustus.se, e-mail: kundtjanst@iustus.se Printed by Eurographic Group, 2024

Contents

Contents Preface

Acknowledgements

List of contributors

Introduction

Theme One: Defining and Redefining the Rule of Law Julinda Beqiraj The Rule of Law in Times of Global Transformations: From Conceptualisation to Operationalisation

Joakim Nergelius Rule of Law and – or within or between – the two European Courts

Marco Evola Exporting Its Own Values or Contributing to the International Rule of Law? The External Action of the European Union and the Principle of the Rule of Law in the Outer World

Petter Danckwardt A Global Rule of Law?

113

Aljosa Noga The Risk of Intergenerational Decline of the Rule of Law as a Result of Adverse Climate Change

143

Eleonor Kristoffersson and Magnus Kristoffersson The Principle of the Legality of Taxation and the Rule of Law

177

Theme Two: Rule of Law and Procedural Matters in Transitional Times Cristina Trenta The Disobedience of Courts

187 5

Contents Rigmor Argren Application of Article 18: Seeking to Uphold the Rule of Law under the ECHR

215

Yannick van den Brink, Kerstin Nordlöf and Ingun Fornes Strengthening the Rule of Law in Child Justice

237

Laura Ervo The Modern Rule of Law in Civil Proceedings – New Swedish and Finnish Components

271

Theme Three: Societal Transition and the Rule of Law Yurii Orzikh Rivalry Between Legal Principles and the Rule of Law in the Context of Armed Conflict. Case Study – Ukraine

287

David Silverlid Another Swing of the Pendulum? The International Rule of Law and the “Splinternet”

327

Mais Qandeel Blockchain Technology: A Matter of Legal Certainty

353

Magnus Kristoffersson The Concept of Robot Judges Using Generative Artificial Intelligence and the Rule of Law

369

Alice Sunesson and Mais Qandeel Automated Administrative Decisions and the Principle of Legality

389

Kateryna Nekit Digital Ownership as a Reflection of the Rule of Law

405

Stjepan Gadžo Reform of (international) Corporate Tax Rules in the Pursuit of Sustainable Development and the Rule of Law

439

Index

465

Introduction

Introduction The authors who have contributed to this book come from various countries and are experts in many different fields of law with experience from different legal systems. They came together in this project driven by an interest in the rule of law and a curiosity to understand the viewpoints and perspectives of colleagues beyond their own field of expertise. This desire is underpinned by a shared recognition that the rule of law (as is the case with law in general) does not exist in a vacuum. It operates in a much wider spectrum, a spectrum that today decidedly is not static, if it ever was. By presenting the rule of law in a transitional spectrum, the authors in this anthology demonstrate their willingness to understand as well as promote a constant adjustment and recalibration of how the rule of law is understood and used, today as well as tomorrow, be it in policy or in law. This book is structured in three themes. Whereas the two first themes have a traditional character examining the notion ‘rule of law’ in its own right and discussing the rule of law in relation to courts and procedural aspects, the third theme allows us to transition the discussion into new emerging fields. The first theme Defining and redefining the rule of law, addresses the notion of rule of law itself, how it is defined from the perspective of different jurisdictions and legal orders, be it in thick or thin versions. Furthermore, it examines the notion from regional and global perspectives. The second theme of the book deals with Rule of law and procedural matters in transitional times. The division of powers remains a central aspect of rule of law, irrespective of which legal system sets the stage. From this point of view, the courts have an important and specific role to play. That is not to say that the role of courts, be it national or international, remains static nor shielded from transformation. In this regard, the ECJ has had to decide in rule of law cases quite a few times in the past few years. Furthermore, it is increasingly discussed to what extent the European Court of Human Rights (ECtHR) is transforming into 17

Introduction

a constitutional court – imposing more detailed directions as to what national legislation should entail. The third theme of the book considers Societal transition and the rule of law. The books last theme is consecrated to several contemporal changes and challenges in our societies. Such transitions often pertain to digitalization and datafication of human activities, not least in the legal sphere. This includes the ways decisions are made not only in general (increasingly with technical support from AAD) but also to how Courts operate and implement the law. In chapter 1 Julinda Beqiraj asks the question: To what extent can the rule of law provide guidance in ensuring good governance during core transformations? The author addresses these questions by first providing an overview of the definitions of the rule of law. Secondly, she discusses three examples of operationalisation of the concept in the context of the Sustainable Development Agenda (UN), the tools developed by the Council of Europe (CoE), and the European Union (EU) rule of law protection mechanisms. Finally, the author provides examples supporting her claim that the rule of law is topical and has core relevance in the context of global transformations. In chapter 2 Joakim Nergelius critically discusses the relation in the future case-law of the European Court of Justice (ECJ) between the application(s) of the European Convention of Human Rights (ECHR) and the EU Charter of Fundamental Rights, as well as future relations between the two courts and some national, in this case mainly Swedish courts. The author contends that many scholars including Allan Rosas oversimplify these matters, arguing that the reality is somewhat more complicated than many scholars tend to believe. In chapter 3 Marco Evola notes that the rule of law has been acquiring a growing importance in the external action of the EU. The assessment of the content of the rule of law makes it clear that the EU has adopted a thick understanding of this notion. Moreover, the author highlights that the EU exports its own conception of the rule of law in a few fields of the external action, while in other areas reference is made to the international rule of law. Eventually, the author argues that several factors affect the capacity of the EU to act as a normative power. In chapter 4 the perspective shifts from regional to global. Petter Danckwardt begins with outlining the historically long-standing posi 18

Introduction

tive connotation to the notion of the rule of law. The author presents examples where the rule of law is vested with the hopes to achieve sustained economic growth, sustainable development, and the eradication of poverty and hunger at both national and international levels. Finally, the author points out that despite the inherent virtues of the notion, there are contemporary examples where the rule of law is under political threat. Aljosa Noga, in chapter 5, highlights that threats to the rule of law may also arise due to climate change. The author argues that the rule of law risks gradual and intergenerational decline due to the negative impact on human rights that results from the international community’s failure to mitigate and adapt to adverse climate change. The author argues, supported with examples from caselaw, that the detrimental impact on rule of law and climate change alike, can travel across generations and increase over time. In chapter 6 Magnus Kristoffersson and Eleonor Kristoffersson discusses the definition of the principle of legality in relation to taxation. The authors analyze the principle of legality of taxation in the light of the rule of law. The chapter first provides an introduction of the principle of the legality of taxation in international and EU Law. Thereafter, a brief comparative overview is given. Next, the case of Sweden is used as a case study. The authors conclude that with EU harmonized laws, national courts may find themselves in a complex situation regarding which principle to apply and to what extent. This is especially true for cases with both harmonized and non-harmonized taxes. In chapter 7 Cristina Trenta discusses the principle of primacy and direct effect of EU law over conflicting domestic laws. It means that EU law is hierarchically superior to national legislation and must be thus applied uniformly in all EU Member States. The principle is fully recognized by all national courts in the Member states and was first established in a series of landmark judgments of the ECJ. The author notes however, that the principle does not apply seamlessly in the field of human rights as regulated by the ECHR. In conclusion, the author finds that the this may be explained by the fact that the EU is not a party to the ECHR: rather the individual Member States are the signatories to the ECHR. In chapter 8 Rigmor Argren examines the role of Article 18 in the ECHR. The author first outlines the background to the inclusion of this provision in the ECHR as a safety device, should States start to backslide 19

Introduction

in their respect for the treaty rights. Next, the chapter outlines the linkage between rule of law and the notion of European public order. Then the potential power of Article 18 is explored in relation to the anticipated function of preventing a decay of respect for the rule of law. Lastly, the chapter highlights the pros and cons with regard to the contextual references increasingly relied on by the ECtHR in Article 18 judgments. In chapter 9 Yannick van den Brink, Kerstin Nordlöf and Ingun Fornes first establish that rule of law demands States to establish an appropriate minimum age of criminal responsibility (MACR) and to guarantee effective procedural rights protection for children in conflict with the law. Based on case studies of the child justice systems of Sweden, Norway and the Netherlands, the authors explore what an appropriate MACR requires in terms of procedural rights for children below and above the MACR. The authors concluded that, even in supposedly progressive jurisdictions, there is still a world to win when it comes to safeguarding the rule of Law and children’s rights protection in child justice. In chapter 10 Laura Ervo discusses modern rule of law in Nordic civil proceedings. The author contends that for Sweden a central feature for modern rule of law is the party autonomy. In Finland, perceived fairness is high on the agenda. Additionally, how the hearing sounds, feels and tastes, plays a significant role. The author notes that in Finland, Norway and Denmark, the court annexed mediation can be said to be a feature of the modern rule of law. The author concludes that the courts must earn their legitimacy again and again in every single case. In chapter 11 Yurii Orzikh points out that war is a factual phenomenon, and martial law is its de jure signifier (legal signifier). The author then raises the question “to what extent and in what way is this manifested?” Furthermore, he elaborates and questions what the requirements are for adjusting rule of law under martial law, how the legal reality should be changed, what exactly and to what extent can changes be made? For instance, does martial law affect the principles of law? Does martial law constitute a hierarchy of legal principles different from those that reign in peacetime? This chapter focuses on interplay between the legal system as a context and the legal system itself in the atypical conditions of its existence, namely, in the context of armed conflict.

Introduction

In chapter 12 David Silverlid turns our attention to cyberspace. The author argues that the general trend in the cyberspace context is not a movement away from international law, but towards it. He finds that the internet is increasingly subjected to ‘balkanizing’ measures by States. The internet is increasingly regional, with user-experience and available content beginning to vary dramatically depending on where one access the internet from. This chapter analyses the “splinternet” phenomenon in relation to the intensifying push to move internet governance away from a multistakeholder structure towards multilateralism and the international rule of law. The author concludes that it may be precisely this trajectory that can provide the legal framework from which the “splinternet” may erupt. In chapter 13 Mais Qandeel examines the principle of legal certainty in connection to blockchain technology. She explores whether blockchain technology – featured core operational characteristics – fulfils the rule of law’s principle of legal certainty. The author first discusses the principle of certainty and explores how blockchain technology has been designed to contest legal order and some regulatory norms. Next, the author draws on the notion of legal certainty and assesses the technology’s law-compliance potentials. The author concludes that blockchain technology theoretically falls short to satisfy the principle of legal certainty and proposes legal remedies to address such shortcomings. In chapter 14 Magnus Kristoffersson discusses the principle of fair trial in relation to robotic judges. The author asserts that the right to fair trial is a profound principle under the rule of law. He then argues that in this regard, judges serve as pivotal components of the legal ecosystem in upholding the principles of the rule of law. It is ultimately the judge who ascertains the resolution of disputes, whether they arise between individuals or between individuals and the State. With attention to robot judges, embodied by Generative Artificial Intelligence models (GAI) the author discusses one facet of the rule of law concept, the right to fair trial, and asks if robot judges could replace humans. By contrast, Alice Sunesson and Mais Qandeel in chapter 15 examine the use of technology as support to human decision making. Automated administrative decisions (AAD) have been deployed in the public sector to increase efficiency and accessibility. However, AADs challenge the principle of the rule of law, particularly, the principle of legality (PoL). 21

Introduction

This chapter examines whether AADs are in compliance with the PoL. The authors first discuss the PoL and its legal force. Secondly, they discuss AAD, its benefits and legal implications in relation to public administration. They study the entangled relationship between the AAD and PoL in the public sector and finally emphatically underline the importance of upholding the PoL in the process of automated decisions made by public authorities. In chapter 16 Kateryna Nekit notes that the ongoing development of information technologies and number of items falling under the concept of “digital assets” is growing at an impressive rate. In this regard, the author finds that the question of the legal nature of such objects has not yet been finally resolved. This leaves digital asset holders vulnerable: their rights have little or no legal protection. The author contends that the situation may be remedied by applying ownership provisions. This would ensure optimum protection for holders of digital assets, since they could obtain all the guarantees established for owners. The author argues for the feasibility and necessity of recognizing a new type of ownership in order to protect the rights to digital assets. In chapter 17 Stjepan Gadžo examines recent tax scholarship and notes that the topic of sustainability has gained wide currency there. The author holds that the concept has provided a new element in the policy framework for assessing the tax behaviour of corporate taxpayers, with the spotlight put on the largest multinational companies (MNCs) and their practice of “aggressive tax planning” or “tax avoidance”. He points out that tax scholars have traditionally relied on policy benchmarks such as “tax fairness” or “tax neutrality” in pleading for the reform of various domestic and international rules that make corporate tax avoidance possible. The author concludes that the 2013 Anti-tax base erosion and profit shifting project resulted in multiple legislative changes aimed at curbing such practices, with policymakers largely adopting the “tax fairness discourse” in justifying these developments to the public.

Rigmor Argren

ISBN: 978-91-7737-272-1

EDITED BY

R U L E O F L AW I N A T R A N S I T I O N A L S P E C T R U M

THIS ANTHOLOGY is a collection of scholarly articles

R U L E O F L AW IN A TRANSITIONAL SPECTRUM

EDITED BY

Rigmor Argren