Comparison as an interpretative tool of the European Union judge

We live in a world where many legal systems interact continuously. Some of these interactions can be described as ‘legal transplants’ in-between national laws. In this way, sometimes, entire legal structures are borrowed from a foreign country. 

That was the case for the Swiss Code of Obligations, which Turkey has adopted in the 30s. In the beginning, at least, the Turkish judges may have interpreted a concept by examining its meaning in Swiss law, which implied the use of comparison between Turkish and Swiss legal systems.

Another interesting case, this time of ‘synthetic’ transplant, relates to the Civil Code of Ethiopia, designed by great comparative scholar, René David,  who took into account rules or institutions from France, Italy, Greece, Switzerland, Israel, etc. The Ethiopian judge, willing to clarify, an obscure term in the new code may have used multiple comparisons between his own system and each specific disposition's origin.

But such ‘legal transplant’ may also occur between legal systems of a different kind. For example, International Law may borrow concepts and rules from national law. The international legal scholars have played a role in this transposition since they were fed by their national legal culture. 

More recently, in many disputes of highly technical issues, the International Courts or the Arbitrators have resorted to long-established institutions from private national laws and hence use comparison in interpretation.

The most interesting 'laboratory' for such an interpretative use of comparison based on solution from national legal systems is, or more exactly was, European Union (when it was called European Community).

If this brief presentation catches the attention of the reader, he may find a still evolving draft of  about

Comparison as an interpretative tool of the international judge: the European Union case, visible at https://ssrn.com/abstract=3648866.

The first part of the paper circumscribes the meaning of comparison as an interpretative tool. A step-by-step approach clarifies the meaning of comparison in general, comparison as interpretation in particular, and realizes an overview of comparative interpretative practice by international tribunals and identifies hidden cases when the European judge employed the comparison.

The second part of the article examines the emergence of comparative interpretation in topic case-laws relating to the European Community of Steel and Carbon (ECSC) Treaty. In the 50s and 60s, there was an unseen dialogue of the doctrine, the Advocates Generals, and the European judge about interpreting the ECSC Treaty's undetermined normative concepts. The outcome of this dialogue was the occurrence of a 'standard' interpretative comparison, a multi-comparison, which was used by the European judge ever since. 

The third part of the article places this 'standard' comparison within a methodological perspective. This perspective offers the ground for 'translating,' methodologically speaking, the 'standard' comparison as a subset of the literal or grammatical interpretation belonging to an objective system of interpretation. The 'standard' comparison is strongly linked to multi-juralism (existence of many independent and parallel legal systems of Member States) and loosely linked to multilingualism (the legal use of multiple languages within EU), both essential characteristics of the European legal system.

This powerful and misunderstood tool of the judge had an essential role in the European Union's historical evolution. It may also provide hints and solutions for national or international cases where legal pluralism is at stake.

The reshaping of Global Trade by the Administration of President Trump

During the last 4 years, I watched closely the International Trade actions adopted by US President Trump. That attention materialized in 2 successive articles evaluating these actions and their probable impact on Global economic relations. 

A first article analyzed developments before June 2018, when it was presented to a conference in Bishkek, Kyrgyzstan, followed by a recent publication in a collective volume (The 'fair-trade strategy' of the new U.S. administration concerning China in "Cross-border exchanges: Eurasian perspectives on logistics and diplomacy," Peter Lang, Brussels, 2020). It is available at https://ssrn.com/abstract=3648057

It focused on the Trump Administration's trade initiatives about China framed in the American push for restructuring the global economic order.

The first section considered President Trump's business background to explain his economic focus and non-conventional economic policy and policy approach in general. Allying this with an assessment of the US economic and geopolitical position, I identified the patterns, directions, strategies, resources, and capabilities in the service of international trade policies.
The second section examined the trade actions of the US Administration regarding China. We applied patterns identified in the first part to understand the logic of American trade actions and evaluate their possible outcomes.

The following article analyzed developments before June 2019, as an update of a presentation made in April 2019 to a conference in Almaty, Kazakhstan. 
It analyzed the Trump Administration's trade policies with Eurasian state or non-state actors and will soon be published (Globalization 2.0? Legal implications for Eurasia of the new US trade-policies in "The Belt-and-Road initiative and the challenge of change in the legal and political systems of Eurasia," Peter Lang, Enjeux Internationaux, Brussels, 2021). It is available at https://ssrn.com/abstract=3648866 

The introduction assessed the new US trade policy's goals and tools through President Trump's open declarations. The first section identified the trade policy's strategies/tactics by analyzing the new US administration's actions, such as the tariffs on aluminum and steel or the renegotiation of KORUS or USMCA agreements.

A second section used this frame to apprehend the US Administration's trade actions concerning actors, such as the EU, Japan, China, or WTO, and determine the possible outcomes with disruptive impact on the last three decades' globalization process.

We estimate that the US administration's international trade policies will have a more consequential impact on global order than the Soviet Union's fall in the 90s.

Three key trends in Defense and IT in the coming five years

On 28 February 2020, I made a presentation during a videoconference held in Malta. 

The conference was about security trends related to developments in ICTs (such as cloud computing, data mining, etc.) and the fundamental breakthroughs in Artificial Intelligence (Deep Learning). 

Many US Defense technologies of the past three decades spread throughout modern society (Internet, GPS, self-driving cars, etc.). We extrapolated these kinds of developments in the future. 

We have used open/free documentary resources (DARPA's programs, white papers on US military strategy, public initiatives concerning US defense, etc.).

This presentation can be seen  at https://www.researchgate.net/publication/340076687_Three_key_trends_in_Defense_and_IT_in_the_coming_five_years

It adds and updates the analysis in my paper of 2016 about  "Autonomy of Military Robots- Assessing the Technical and Legal ('Jus in Bello') thresholds."

The right to privacy and right to personal data and their connection to the Gonzales case

In a recent article (visible at https://ssrn.com/abstract=3235087), I explored the right to privacy and the right to personal data and their connection to the Gonzales case of the EU. 

Protection of the right to privacy concerning publications has a centenary history in Europe at both the national and supranational levels. 

However, protections of personal data about digital processing are different. Few national constitutions or international instruments recognize the right to protection of personal data, and even fewer jurisdictional remedies are associated with it. There are some significant exceptions, for example, the EU Data Protection Directive and Article 8 of the EU Charter of Fundamental Rights. 

In my article, I explored these two approaches of protection followed by an exam of their articulation in the reasoning of the European Union Court of Justice on the famous Gonzales case-a decision implementing a “right to be forgotten on Internet” as a right of de-listing a link from a search engine provider.

Revival of Rabel’s trans-national characterization for rules of conflict?

In discussion with an old friend, he mentioned Contracts as being (to Law) the equivalent of Newton Mechanics (to Physics). That made me wonder about the legal branch that would be the equivalent of Quantum Mechanics.
The best answer would be the International Private Law, and more exactly the part in relation to Conflict of Laws-one of the most complex and theoretical elaborated legal fields.

I became interested in it and noticed the problem of characterization. Later on, I discovered Ernst Rabel, a German scholar, who formulated, 80 years ago, a program to use comparison in trans-national (autonomous) characterization. Nothing was achieved from his ambitious approach in a world where national judges' practice was still dominated by characterization according to ‘lex fori’. 

However, concerning the Convention of Brussels I, about conflicts of jurisdiction in Europe, relatively recent evolution has reactivated Rabel's program, although within a different, international setting.

I dedicated a paper to this topic, which is visible at SSRN: https://ssrn.com/abstract=2880746.

My research explores the significance and articulations of Rabel's original program in the first historical part.

The second part focuses on the comparison used for trans-national/autonomous characterization of the Convention of Brussels 1 by the European Court of Justice. Based on significant decisions within a 40 years period, the analysis uncovers the reasons, the features, and the limits of such a powerful interpretative instrument.

Eventually, this instrument might be used outside of international settings to interpret more recent EU Regulations (such as Brussels1, Brussels 2, Brussels 3, or Rome 1, Rome 2, and Rome3).

Podcast of a presentation for "Autonomy of military robots..." made on the last September, in Seoul

The conference, International Symposium on Security and Military Law, with regular sessions during each year, was held in Seoul from September 16 to September 18, 2015.

The audio quality of the recording is far from perfect. However, this is my first try...

For a final version of the article which accompanies the presentation, please refer to http://ssrn.com/abstract=2602160.

Any remarks are more than welcome.

Autonomy of military robots: assessing the technical and legal ('Jus in Bello') thresholds...Hints of a recent article...

Two broad issues are becoming essential for our 'hyper-technological' societies.

The first relates to the cyber world, with its 'dark side' of menaces, like cyber hacking, cyber terrorism, or even cyber warfare. The second refers to robots. 

However, in the case of robots, the 'dark side' is still in the realm of nightmarish visions in blockbuster movies like Terminator 1, 2, 3...In fact, robots have failed to come into being, at least until now, in our daily life.

While everyone experienced, at least once in a while, cyber hazards like spamming, very few people, except proud owners of Roomba vacuum cleaner, had any close encounters with robots. And a 'dark side' concerning Roomba seems quite challenging to find...

Even though robots are spreading on battlefields, but only as remote-controlled platforms, with no real autonomy. Apparently, the 'missing' autonomy explains the absence of robots from our world. 

Hence the reason for my article about the Autonomy of military robots: assessing the technical and legal ('Jus in Bello') thresholds,  visible at  http://ssrn.com/abstract=2602160.

It starts by examining the autonomy/ automation divide and the degrees of autonomy in robots on the pathway of metrics developed by the US Department of Defense.

These metrics are used to assess the autonomy in 'state of the art' robots, such as Google’s self-driving car or other DARPA projects. 

Based on public sources, one can get a picture of the functioning, the general architecture, and, most of all, the limits of today's robots. These systems are almost 'blind' because they lack a deep 'perceptive intelligence.' This situation allows reliable predictions of future performances for autonomous military robots during navigation, reconnaissance, or kinetic attacks (lethal missions). 

This analysis was pursued even further. If robots become truly autonomous for lethal missions on the battlefields, they must also 'obey' the rules of Humanitarian Law (Rules of ‘jus in Bello’/ Rules of engagement) and act as 'artificial moral agents.' 

The required moral or legal evaluations belong to higher cognitive/emotional processes (specifically human) than those needed for 'perceptive intelligence.' Given the technical limitations in implementing the relatively simple tasks of autonomous navigation, reconnaissance, or kinetic attacks, one can reasonably assess the much more severe difficulties in creating such 'artificial moral agents' on the future battlefields. 

For all other details, please refer to the article. Any observations or commentaries will be more than welcome.

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