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AUTHOR Katarzyna Klafkowska – Waśniowska

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AUTHOR Adam Ploszka

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AUTHOR Marcin Rojszczak

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13 February 2025
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Once Populist, Now Mainstream?

The heydays of international law are over - that much is suggested by politicians and political observers in Germany. Those who still argue in favour of an international order based on international law seem unprepared for a world of autocrats and transactional deals. Allegedly, they fail to realize the need to protect and prioritize national interests. International legal practices are even perceived as immoral when authoritarian states rely on international law to oppose foreign policy decisions of democratic states, as exemplified by recent proceedings before international courts on the war in Gaza. For a long time, international law was almost idealized in German debates, but now something seems to be shifting.

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12 February 2025

Kippt in Brüssel das individuelle Asylrecht?

Während ganz Deutschland leidenschaftlich den „Merz-Plan“ für Zurückwei-sungen an den deutschen Grenzen diskutiert, hat in Brüssel eine Grundsatz-debatte von viel größerer Tragweite begonnen. In einer spektakulären Wen-dung erachtet die EU-Kommission „Pushbacks“ unter Umständen neuerdings für rechtmäßig. Das ist heikel, weil Pushbacks an den Außengrenzen das in-dividuelle Asylrecht beseitigen.

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11 February 2025

Beyond Formal Legality

The Venice Commission’s position on Poland’s judicial reforms presents a paradox: it warns that measures to restore the rule of law could themselves violate it – even though the rule of law has already been undermined. To solve this paradox, I propose two conceptual clarifications. The first one applies distinction between violating and departing from formal legality. The second one recognizes that judges unconstitutionally appointed under an illiberal regime cannot be acknowledged as legitimate judges in the constitutional sense.

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Constitutionally Capturing Pakistan’s Constitutional Courts

In 2024, Pakistan’s parliament passed a constitutional amendment carrying out the most significant restructuring of Pakistan’s superior judiciary in its recent history. This judicial overhaul needs to be analyzed as part of a process of regime realignment. By regime realignment, I mean a ruling authoritarian elite radically altering its supportive political structure and popular bases to expand and extend its hold on power. Based on news sources and conversations with senior lawyers and judges, I will show that this plan for judicial overhaul developed iteratively through a process of intra- and inter-institutional dialogue and conflict that took place during regime realignment.

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10 February 2025
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Corporate Power Beyond Market Power

Elon Musk’s corporate empire spans an impressive array of markets and industries. This empire includes SpaceX (and its subsidiary Starlink), Tesla, Neuralink, The Boring Company, X, xAI, and the Musk Foundation. These corporations are connected and interlinked, creating a cross-corporate power structure. Competition law, which focuses on market power in narrowly defined relevant markets – say, a market for booster rockets – has very limited reach to guard against the possible detrimental effects of such multifaceted concentrated power in the hands of a few on open democratic societies.

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07 February 2025

Memory-driven Foreign Policy

The German debate on whether and to what extent Germany should support Ukraine in its war against Russia with arms supplies is closely linked to Germany’s collective memory. For a long time, Germany's guilt for the crimes of occupation during the Second World War was largely associated with Russia – and not with Ukraine and Belarus. It is only since the Russian invasion in 2022 that the highest levels of the German government have begun to recognize the special responsibility Germany has towards Ukraine, a responsibility that also stems from the memory of the Second World War. Along with this change, it can be observed that the imperative of ‘never again’, closely tied to the German memory of the Second World War and especially of the Holocaust, is gradually being formulated in more abstract terms in historical-political debates, despite some resistance.

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04 February 2025

Remembering Democracy

In the years following the brutal suppression of pro-democracy protests in Belarus in 2020 and 2021, a wave of politically engaged Belarusian artists — visual artists, musicians, filmmakers, poets and novelists — have been driven into exile. Scattered abroad, these artists not only use their work to reflect on the repression at home, but also seek new ways to keep the spirit of resistance alive.

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31 January 2025

Itching Wigs, Fallen Masks

At the End of a Historic Week

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Juckende Perücken, fallende Masken

Am Ende einer historischen Woche

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“Competitive Victimhood” in Poland

The introduction of a legal component into the already complex and emotionally charged mosaic of memory in Poland, instead of calming and ordering the disputes, seems only to reinforce antagonistic attitudes, whether on the Polish, Jewish or Ukrainian side. In such a situation, the law can become a weapon both for and against historians and politicians alike, but it can also harm the witnesses of history, the still living victims of past crimes, or their relatives.

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30 January 2025
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Feeble Recognition of a Systematic Pushback Practice

In A.R.E. v. Greece and G.R.J. v. Greece, jointly published at the beginning of 2025, the European Court of Human Rights (ECtHR) finally acknowledged Greece’s long-standing systematic practice of violently pushing people back at its land and sea borders. While this is already remarkable, both rulings stand out for the Court’s thorough evidentiary analysis and new standards for proving pushbacks. However, the ECtHR failed to fully incorporate the context of a systematic practice, instead maintaining a high threshold for evidencing individual instances of pushbacks.

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29 January 2025

Memory Laws and Colonial Reckoning in France and the Netherlands

While France embraced the formal regulation of historical memory regarding its colonial past nearly two decades ago with the adoption of a law by its parliament, the Netherlands has opted for more symbolic recognition on behalf of the head of state. The essay argues that, despite neither approach being capable of fully satisfying all sides in the debate on how to frame colonialism in the present, the Dutch model is notably less problematic concerning its impact on freedom of expression, adherence to the rule of law, and the fit towards a unique set-up of the Kingdom of the Netherlands.

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