Band 8, Heft 2

The Chinese politico-legal system, including the human rights component there­of, has long been the subject of intense academic and policy interest, despite its increas­ingly ‘soft’ features. A multiyear economic expansion and active participation in globaliza­tion processes have been accompanied by some loosening of governmental control mecha­nisms but, by Western standards, this has been a distinctly slow journey. The acquisition of power by this rapidly rising international player has also given rise to concerns about the broader implications of a combination of substantial State capabilities and an ambivalent posture towards human rights, as widely conceived. In addition to traditional perspectives, the issue has been addressed by resorting to social science-type methodological tools and employing them in order to gain a better understanding of the workings of a rule-based regime that straddles domestic and global territory. Considerable progress has been made, yet the task has not been approached exhaustively and accumulation of knowledge has been an intermittent affair. An elaborate and structured literature review is undertaken here for the purpose of identifying gaps on this specific front and concrete strategies to narrow them materially.

Institutions such as the US Supreme Court and the European Court of Justice in due time have developed a status of supremacy through judicial activism. The main target of the article is to identify the judicial activism exercised by these Courts and to reason its need in the legal order. In the first part the US Supreme Court and the European Court of Justice are placed in the overall polity that they belong to and the development of their status and their characteristics are analyzed. The major concern of the first part is to examine how those declared their supremacy and focus on major cases and their reason­ing. In the second part the extent of the judicial supremacy in each legal order is discussed and its effects in the decision making process are examined. The assumption that judicial activ­ism is acceptable only if it expresses consensus in the legal order is tested and it is argued that up to an extent, Judicial Activism does not distort the political agenda when it ex­presses the consensus of the legal system. Finally, it is argued that when such activism exceeds the boundaries of the consensus, the other actors in the legal system would even­tually react and would limit such activism.

According to the prevailing opinion, ECtHR judgments do not bind the members of the Council of Europe beyond the individual case. The aim of this paper is to present arguments against this prevailing opinion and make a case for a legally binding effect of ECtHR judgments beyond the individual case within the Austrian legal order. We demon­strate that such an obligation follows from the system and telos of the ECHR and the con­stitutional principles of legal certainty and equality before the law and not only arises when a systematic problem in Austria is concerned, but also where well-established case-law of the Court exists. Moreover, we approach the question from an EU law perspective and ar­gue in favour of a legally binding, albeit limited, effect of the Court’s judgments by virtue of EU law.