Motivation letter gem1

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Motivation letter gem1

  1. 1. A Presentation of the Personal Motivations behind the Application I would like to introduce my candidature for the GEM PhD School (Erasmus Mundus Joint Doctorate „Globalisation, the EU and Multilateralism‟). Throughout my course of education I have been dedicated to the idea of international cooperation and European integration. My dream has been to be a part of a meaningful research project in this area after accomplishing my studies. My whole education has been a great journey through many countries and cultures, which allowed me to observe the legal issues of international cooperation from various angles. I cannot think of a better way to bring my education on a higher level than a research project in an international environment. I have accomplished my primary and secondary education in Poland. During that time I was intensively improving my skills in English, German and French. In 2003 I succeeded in passing my DELF certificate in French (Diplôme d'Etudes en Langue Français) and in 2005 CAE (Certificate of Advanced English) and DSD II (Deutsches Sprachdpilom II). Afterwards, I successfully passed admission exams and obtained a place at the law faculties at universities in Cracow, Warsaw, Cologne and Berlin. In Berlin I have accomplished courses i.a. in Public International and European Law. In March 2007 I participated in the multilateral youth project “YOU & ME Youropean !dentity”, which took place in Milow, Duisburg and Berlin and where 7 different countries were represented. With regard to improving my knowledge of Polish law, which is of special importance for me, I have been pursuing a course at the School of Polish Law at the Humboldt University for 2 years, which involved lectures with professors from the University of Wroclaw. I have accomplished this school with the best results (16 /18 points). In April 2007, after a selection process, I managed to get a place at the partner university of Humboldt Universtität – King‟s College London, where I have been studying for a year and obtained a Diploma in Legal Studies. I have been following courses in Contract, Tort, Human Rights and European Law and have passed all my exams with a first (70%) obtaining the best result of all students in the academic year 2007/08. After coming back to Berlin I had the possibility to attain an internship at the Polish Embassy in Berlin and at the Legal Office of Clifford Chance in Frankfurt am Main. I have accomplished my studies with the German state exam on the 2nd of March 2010. Starting from March I have the chance to participate in a five-month traineeship programme at the European
  2. 2. Court of Justice in Luxembourg, where I can gain some professional experience in the functioning and legal system of checks and balances in the European Union. Due to my advanced skills in 4 European languages I have had the possibility to gain complex knowledge about three different countries, cultures and legal systems. I would like to further develop my knowledge by deepening my understanding of the issues that are of special interest for me and of great value for the international community. Doctoral Research Project Synopsis As I have just finished my studies I am still in the process of concretizing the theme of my research project. However, throughout the course of my studies I have already been observing with great interest certain developments in European and Public International Law. I find the overlapping of those two areas of law and public policy especially interesting. The phenomenon sometimes described as the Europeanisation of International Law is likely to play a major role in the future legislative process. The European Law and Public International Law are interacting and influencing one another. The process can be described as institutional adaptation to the pressures emanating directly or indirectly from the EU membership.i It is though a much broader concept that includes many fields of interaction. I find the interaction between the three main levels crucial to analyze the process: the national, the EU and the international level. Essential is also to describe how those levels respectively influence the reorientation of their direction and shape of their politics, because this process is a two-way street. As law is my major study subject I would like to base my research on legal issues. Nonetheless, when analyzing the recent developments it is essential to see the political, economical and cultural background as well.ii According to the traditional understanding of the normative process the written laws are the reflection of the political balance of powers, economical development and cultural composition of a society. They evolve along with the evolution of the society. However, it is an open issue through which corridors law making becomes a tool in the fight to reach political or economical goals. The normative process is shaped very differently at the national and at the international level.
  3. 3. There is an assumption that each member state in the international community has a much stronger position than a group of voters, most definitely states are more concentrated on reaching their long-term political goals. Therefore they might often be interested to pass laws that serve their goals and that are not just a reflection of current rules accepted in the society and in legal relations, but reach out more into the future and shape the legal environment. The process of reaching common standards also involves the fact that in many member states the rules have to be adapted to the majority. Hence, the international cooperation viewed in an abstract way does also create a new shape of the normative process. It is a very interesting question whether this new concept of the normative process can also be applied for the relations between the European and the International Law. The process of law-making at the European level has always been very diverse and searching rather for a practical solution than institutional mechanism. This approach has often been criticized with regard to the democratic legitimacy of the law-making. Three sorts of mechanisms for imposing the European standards have been identified by C. Knill and D. Lehmkuhl.1 First is the "positive integration" consisting of creating rules in the areas of new regulatory policy and imposing on the Member States the obligation to comply with them. The Member States are obliged to take positive action and adapt to the standards set out by the EU legislator by passing implementing acts. Examples of such "positive integration" are viewed in the areas of environmental protection, health and safety at work, consumer protection and sections of social policy.2 The second mechanism is the "negative integration" that in fact leads to an overruling of the national rules. Such an altering of domestic opportunity structures is exemplified by the European integration policy in the area of Common Market.3 The third method of Europeanization, referred to as the "framing integration", involves indirect influence. By altering the beliefs and expectations of national legislators, the EU stimulates a change of preferences and strategies or even some modification in the process of institutional decision-making.4 The European railway policy can serve as an illustration. The choice of examples indicates that the different mechanisms of 1 Christoph Knill and Dirk Lehmkuhl, How Europe Matters. Different Mechanisms of Europeanization, European Integration online Papers (EIoP) Vol. 3 (1999) N° 7; http://eiop.or.at/eiop/texte/1999-007a.htm, 15.6.1999 2 C. Knill and D. Lehmkuhl, How Europe Matters. Different Mechanisms of Europeanization, EIoP Vol. 3 (1999) N° 7; http://eiop.or.at/eiop/texte/1999-007a.htm, 15.6.1999, p. 2 3 C. Knill and D. Lehmkuhl, How Europe Matters. Different Mechanisms of Europeanization, EIoP Vol. 3 (1999) N° 7; http://eiop.or.at/eiop/texte/1999-007a.htm, 15.6.1999, p. 7 4 C. Knill and D. Lehmkuhl, How Europe Matters. Different Mechanisms of Europeanization, EIoP Vol. 3 (1999) N° 7; http://eiop.or.at/eiop/texte/1999-007a.htm, 15.6.1999, p. 8
  4. 4. imposing European standards are linked to distinctive areas of European policy, where they have been considered most effective. These categories have been primarily developed to classify the interaction between the European and the national level. The question remains whether the same general patterns can be applied for characterizing the relation between European and Public International Law. If the European Commission proposes for example a European programme on protecting children using the Internet and other communication technologies5, then it is rather clear that the European level is not the most appropriate and effective one for such an regulatory act. 6 Could such a measure however become an example of a "positive integration"? Due the lack of any possibilities of enforcing it is probably safer to refer to the notion of "projecting the acquis communautaire".7 Nonetheless, the question about the practical difference between the results aimed by those two notions remains. The difficulties in enforcing one consistent acquis communautaire can be illustrated best by the area of human rights policy. First aspect considered to be an obstacle to an effective guarantee of human rights in the EU has been the allocation of competences concerning the external human rights policy in different pillars.8 On the one hand, the Common Foreign and Security Policy (CFSP) forming part of the third pillar was entrusted "all areas of foreign policy and all questions relating to the Union‟s security" according to ex Art.11 TEU (now Art.24 TEU). On the other hand, the common interpretation assumed that this competence was restricted to the areas not covered by the first or the second pillar. Therefore the EC was also active in matters concerning the external human rights policy.9 This distinction between the areas of competence brings us back to the leading case decided by the Court of Justice with regard to defining the competence norm for legal acts of the EC – the Titandioxid-case.10 If the legislator can rely on two provisions he is bound 5 Commission proposal for a Decision of the European Parliament and of the Council establishing a multi-annual Community programme protecting children using the Internet and other communication technologies COM(2008) 106 of 27-2-2008 6 Bruno de Witte, International Law as Tool for European Union, European Constitutional Law Review 2009, 5: p.265(280) 7 L. Azoulai, The Acquis of the European Union and International Organizations, 11 European Law Journal 2005, p.196(199) 8 Jo Beatrix Aschenbrenner, Menschenrechte in den Aussenbeziehungen der Europaeischer Union, II/2007, p.128 9 Jo Beatrix Aschenbrenner, Menschenrechte in den Aussenbeziehungen der Europaeischer Union, II/2007, p.128, 147 cc) 10 ECJ C-300/89, Commission against Council, 1991, I-2867
  5. 5. to comply with all the procedural requirements, if such a double base is not possible a distinction between the competence norms has to be made. The Court ruled that this distinction has to be based not on the intention of the legislator, but on objective criteria, such as the aim and the subject-matter of the measure.11 When the Treaty of Lisbon entered into force in December 2009 it abolished the pillar structure in the European Union. Nonetheless, the general distinction between the supranational and the intergovernmental levels within the EU remained in place. Hence the question arises whether it will involve any changes for the confusing differentiation of competence areas within the EU regarding the external human rights policy. It can also be argued that the question has already been resolved by institutional and state practice supported by the jurisdiction of the Court of Justice of the EU. Second aspect that might introduce confusion into the system of protection of human rights is the unity of the standard of human rights protection that is meant to be achieved by plurality of structures. The general principles of human rights law are common to the Universal Declaration of Human Rights, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. The idea is to apply a uniform standard of human rights protection. The idea that created the basis for the emergence of the EU and the UN has been the creation of a set of basic rules of international law that are obeyed in every country in the world and will make general peace and welfare possible to achieve. The interaction between the legal provisions created by different international organizations enables such a minimum standard to emerge. It is not any more at the discretion of every country to interpret and apply the general rules according to they own state practice, the international cooperation makes it possible to actually effectuate a common standard. The best example is the work of the European Court of Justice in the area of fundamental rights. Since the 1950‟s the ECJ has been developing its jurisdiction in order to strengthen the fundamental rights within the European structure (kcl essay, cos z tego wklej). In this process it has been resorting to the rights guaranteed by other means of international cooperation, especially the UN and the Council of Europe. Nowadays we can already experience the fruits of this process of „unionisation‟ and „conventionisation‟ of fundamental rights within the European Union.iii 11 ECJ C-300/89, Commission against Council, 1991, I-2867, No.10
  6. 6. The codification and acknowledgement of the fundamental rights at all of the legal levels interacting at the European scene has led to more sensitivity regarding this area and has strengthened the position of fundamental rights not only within the EU. That is the way that a concept can gain importance firstly just by being applied by another international organization and secondly by being integrated into its own legal system. It is however questionable whether it is possible and effective to guarantee an uniform standard of human rights protection with at least three parallel structures that are both legislating and enforcing in the area of human rights policy. Could it be more effective from the point of view of institutional efficiency to have one structure entrusted with setting and enforcing the standards of human rights protection? Will the increasing scope of domains that demand a global solution shape the institutional prospects in the way that requires more specialized institutions? Such a "vertical" allocation of tasks by subject- matter rather than a "horizontal" one depending on the level of integration is only possible when the effective enforcement of the measures taken by such a specialized institution can be guaranteed. In shorter perspective this requirement can only be fulfilled in the case of the European Union and the European Convention on Human Rights. The key case illustrating the relationship between the Court of Justice of the EU in Luxembourg and the European Court of Human Rights in Strasbourg is the Bosphorus-case.12 The ECHR underlined that an equivalent even if not an identical system of safeguarding the human rights is functioning in the European Union with the control of the Court of Justice. Therefore there is a general presumption of compatibility.13 However, the ECHR did include a remark about the possibility to rebut this presumption in case of a manifest insufficiency in terms of protection of fundamental rights.14 Thus it did include a possibility to control and scrutinize the EU legal order if the EU does not provide sufficient level of protection of human rights. Therefore the EU becoming member in the European Convention on Human Rights might be an important change in the area of fundamental rights that will also affect the Europeanization 12 ECHR, Bosphorus v. Ireland, Application n° 45036/98, Judgment of 30 June 2005 13 Inge Govaere, The importance of International Developments in the case-law of the European Court of Justice: Kadi and the autonomy of the EC legal order, Research Papers In Law, College of Europe, 1/2009, p.12 14 ECHR, Bosphorus v. Ireland, Application n° 45036/98, Judgment of 30 June 2005 at para 165-166
  7. 7. of International Law. Cases like Matthewsiv will not come up anymore, however a new way of dealing with fundamental rights violation identified by the European Court of Human Rights that lie on the edge of national and European Law must be found. There are institutional issues to be resolved, like the question of the representation of the EU at the European Court of Human Rights by a separate judge.15 Further, there are various procedural changes proposed to ensure the observance of the specific characteristics of the EU, as for example the introduction of the co-defendant mechanism.16 It is also necessary to set a clear line between the EU and the Member States as defendants in the areas of implementation of European law. The question to be resolved is the accession of the EU to the Protocols of the European Convention on Human Rights, that have not all been ratified by all Member States.17 Just those few interesting examples of the possible adaptations prove that by the accession of the EU to the European Convention on Human Rights another platform of direct interaction between European and International Law will emerge. The scope of the effects of the accession is still a subject of speculation. Nevertheless, it should be observed with attentiveness as the two international legal systems are getting a step closer to each other. This process of interaction between the European Law and the European Convention on Human Rights might be a model one on the international arena. The field of the most intensive interaction with the widest palette of legal tools at the disposal of the parties lies definitely between the European and national level. In this area it is however necessary to differentiate between the cooperation of the European Union and its Member States and the mutual influence of the EU in relation to the candidate states for the EU and in relation to the European Neighbourhood Policy countries. In the latter field the EU applies a variety of instruments covering unilateral EU measures formal bilateral treaties and "softer" instruments such as recommendations adopted by the Partnership Council.18 The aim of the influence is thereby not always the imposition of EU law. The mentioned mechanisms are also used by the EU to ensure the compliance of the candidate states with pre-existing international legal norms such as those regarding human rights and minority protection. 15 Viviane Reding, Speech The EU's accession to the European Convention on Human Rights: Towards a stronger and more coherent protection of human rights in Europe, 18.03.2010, p.4 16 Viviane Reding, Speech The EU's accession to the European Convention on Human Rights: Towards a stronger and more coherent protection of human rights in Europe, 18.03.2010, p.4 17 Viviane Reding, Speech The EU's accession to the European Convention on Human Rights: Towards a stronger and more coherent protection of human rights in Europe, 18.03.2010, p.3 18 Bruno de Witte, International Law as Tool for European Union, European Constitutional Law Review 2009, 5: p.265(279)
  8. 8. Another example is the Community's Generalized System of Preferences that contains a provision of a "special incentive arrangement" for those developing countries that ratify and effectively implement a series of 27 international treaties dealing with human rights, the environment and good governance.19 On the one hand, there are serious concerns regarding the adequacy of such an "export" of EU legislation from a policy perspective. 20 On the other hand, the EU legislation has a number of advantages such as the more democratic and transparent law-making process, higher efficiency, a functioning enforcement system and a greater flexibility to adapt to changing circumstances. 21 Therefore, there is a chance that the EU will emerge as a "global rule maker, with the single market framework and the wider EU economic and social model increasingly serving as reference point in third countries as well as in global and regional fora".22 In order to efficiently organize the "export" of EU legislation it would be supporting to identify the fields of such global and regional cooperation in which the patterns and mechanisms developed by the EU could be especially useful. I am open for incentives to adapt my research proposal in order to better fit in the structure of the planned research groups. Motivation of the choice of "Jointly Executed Research Project" and the preferred Mobility Strategy Due to my interest in analyzing and improving the institutional skeleton of international organizations I would like to propose my candidature for the MORGANITE Joint Research Project. The constitutional law of every model of international cooperation has a great influence on the direction that the organization is going to develop in. Evolution of the institutional structure always involves a major reorientation concerning the goals. As the legal landscape on the international level is becoming increasingly complex nowadays, the models of international cooperation have to adapt to the growing interaction between the national, the 19 Art.8 of the Council Regulation 732/2008 of 22 July 2008, OJ 2008, L211/1; the 27 conventions are listed in Annex III 20 Bruno de Witte, International Law as Tool for European Union, European Constitutional Law Review 2009, 5: p.265(280) 21 Bruno de Witte, International Law as Tool for European Union, European Constitutional Law Review 2009, 5: p.265(281) 22 Commission staff working document, The External Dimension of the Single Market Review, SEC(2007)1519, 20.11.2007 p.5
  9. 9. European and the international level. There is definitely a great opportunity to profit from this development by letting concepts or provision infuse into one system and enrich it. There is however also the danger that the concept will dilute if it is codified on many levels in slightly different manner, then its core can just become indefinable. The key issue therefore is a consistent application that in turn can only be guaranteed by international cooperation. I believe that by critical comparison of different models of international cooperation at various levels and of diverse intensity we can identify the flaws and the strengths of those systems and improve them. Moreover, the future lies in designing their interaction and overlapping. Due to my legal education I have the necessary basis to analyze institutional structure and the models of international cooperation. I had the chance to profit both from the German system, that provides a student with a solid knowledge and exhaustive methodical tools to deal with not yet described problems, as well as the English approach, that concentrates more on the problem spotting and possible future solutions. Hence, I am able to make the connection between the historical development, the status quo and the feasible solutions for the future. My interests did never evolve only around the legal profession; therefore I would also like to conduct my doctoral research in an interdisciplinary manner, deepening my knowledge in European Studies and International Relations. Further, I am open to adapt my mobility strategy to the needs of the research programme. The station for the first year would of course be Institut d‟Etudes Européennes at the Université Libre de Bruxelles. I hope that in the „heart of Europe‟ I would be at the source of the information and developments in the European Union, so that during this time I could concentrate on the European aspect of the work. As the second degree-awarding institution I would like to propose Université de Genève, where I could spend the second year of my research. The University of Geneva has not only an widely acknowledged Institut Européen, but also an International Law Institute conducting research on the highest level. It would therefore be a perfect environment the go more into depth about the perspective of international law. Due to my knowledge of German, English and French I could also profit from the multilingualism of the University of Geneva. The third institution that seems to provide a very inspiring environment for my research plan is the Center for European Studies at Fudan University in Shanghai. In order to deliver a wide
  10. 10. view of the interaction between Europe and the rest of the international community it might turn out to be crucial to include non-European views and interests and that information is not easily accessible in Europe. Hence I consider a stay at the Fudan University in Shanghai to be a great chance to research on the impact of the developments in the EU on the international scene. Regarding the language of my thesis I am convinced that English would be the most suitable working language. Naturally due to the working environment and subject-matter of the project I will be working in more than one language. My plan is to use literature in German, English, French and Polish as a basis for my work, without any preference to any of those four languages. Nonetheless, the choice of English is not only motivated by my personal preference but also by the fact that it is the working language of the GEM PhD School (Erasmus Mundus Joint Doctorate „Globalisation, the EU and Multilateralism‟). Further, it is not only a very popular language for research amongst the European academics but also the leading working language for researchers outside of Europe that will also play an important role in my project. Moreover, I would like to strengthen the international perspective in my work by continuing my research at the Center for European Studies at Fudan University in Shanghai. For a better profit of that stay and the cooperation with the academic stuff English as the language of the thesis will be an essential facilitation. Bibliography: - Aschenbrenner Jo Beatrix, Menschenrechte in den Aussenbeziehungen der Europaeischer Union, Peter Lang (Europaeischer Verlag der Wissenschaften), II/2007 - Inge Govaere, The importance of International Developments in the case-law of the European Court of Justice: Kadi and the autonomy of the EC legal order, Research Papers In Law, College of Europe, 1/2009, p.12 i K. Furtherstone, Introduction: In the Name of „Europe‟, In The politics of Europeanization and Domestic Change, Eds.:K. Furtherstone and C.M. Radaelli, Oxford University Press 2003, p.7 ii J.Wouters, A.Nollkaemper, E.de Wet, The Europeanisation of International Law 2008, p.6 iii J.Callewaert, In J.Wouters, A.Nollkaemper, E.de Wet, The Europeanisation of International Law 2008, p.135 iv ECtHR, Matthews v. United Kingdom, judgement of 18.02.1999 [GC]

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