The Quality of Sovereignty
It can generally be agreed that the purpose of sovereignty is to enable a government to protect the best interests of its citizens. To what extent did UK membership of the EU preclude this? In the context of the EU, the discussion on sovereignty tends to focus on quantity – the greater the scope of action of the EU and its institutions, the lower the sovereignty of the member states. From this perspective, sovereignty is a zero-sum affair – less means less. However, sovereignty can also be assessed from a qualitative perspective, with a focus on its quality, or character, rather than its scope.
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Klimanotstand über Gewaltenteilung?
Bereits vor einigen Wochen wurde bekannt, dass das Amtsgericht Flensburg einen Klimaaktivisten freigesprochen hatte, der einen Baum auf einem Privatgrundstück besetzt hatte. Der Baum sollte auf Grundlage einer Baugenehmigung gerodet werden, gegen die auch eine verwaltungsgerichtliche Klage eingereicht worden war. Nun ist die Urteilbegründung veröffentlicht: Das Gericht sah § 123 StGB – Hausfriedensbruch – zwar tatbestandlich erfüllt, jedoch aufgrund von § 34 StGB in einer Art „Klimanotstand“ gerechtfertigt. Die vom Gericht bemühte „verfassungskonforme“ Auslegung ist jedoch weder überzeugend noch verallgemeinerungsfähig, schadet dem Ansehen der Judikative und schafft einen Anreiz für zukünftiges rechtswidriges Verhalten.
Continue reading >>Facing Up: Impact-Motivated Research Endangers not only Truth, but also Justice
All (but one) responses to my reflections on the ethics of activism as scholars in this blog symposium have been thoughtful, engaged, and charitable. For them, I am very grateful. If my rule-consequentialist worries have any truth to them, we should worry more rather than less about having the relevant motivation I castigate. When the moral stakes are higher (such as in vast areas of the Global South), one has to be even more careful about not making moral mistakes. The debate is not about whether one should be moral (by definition, we should be). It is about what is the most effective means in which the constitutional studies academy can contribute to a more just world.
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‘Activism’ Is Not the Problem
My claim and critique of Khaitan’s position is that constitutional law scholars must produce actual answers to questions of legality, constitutionality or feasibility. Scholars may differ in whether or not they start their inquiry with a ‘material outcome’ as their hypothesis but the quality of work by both ‘activist’ and ‘non-activist’ scholars is to be assessed on the basis of the outcome and their academic integrity.
Continue reading >>Narrow Rules are not Enough
With continuing proliferation of increasingly capable AI systems, we will need regulation to address the associated risks. Since our ability to foresee such future risks is very limited, our best bet is to base such regulation on relatively general principles, rather than narrow rules. We think that negative human rights with their existing broad international support could form a suitable foundation both for flexible regulation and for the associated technical solutions.
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Is Finland Joining the Backsliding Trend in Europe?
New laws have just been adopted by the Finnish parliament that would be extremely dangerous tools in the hands of a cynical government with a right-wing-populist and/or kleptocratic agenda. As the composition of the current Government is left-green-centre, some people will dismiss my concerns. The plain facts, however, give rise to worries: parliamentary elections will be held in April 2023, both large opposition parties, the populist True Finns and the Conservatives, effectively took ownership of the parliamentary consideration of the Bills in question, and the prevailing political rhetoric now is full of slogans that echo Donald Trump rather than the voices of human rights. There is good reason to be on high alert.
Continue reading >>Shareholder Power as a Constitutionalising Force: Elon Musk’s Bid to Buy Twitter
On 14 April 2022, billionaire Elon Musk came with one of his extravagant ideas: he offered to buy Twitter. According to Musk, who is already majority shareholder, the bid was motivated by his will to fully “unlock” the online platform’s potential as a space for free speech across the globe. This episode calls for a reflection on the future of online platforms as digital spaces for the flourishing of public debate and democracy.
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Terrorism law and the erosion of free speech in the UK
The horrifying nature and unpredictability of terrorist attacks in the past two decades meant that in the UK, the extensions of state power had considerable public support in the years following 9/11. While useful to authorities dealing with an unpredictable threat, there are several factors in the laws that provide a potent recipe to erode expression rights.
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The EU’s Proposed Platform Work Directive
On 8 December 2021, the European Commission published its long-awaited draft of a Directive aimed at improving working conditions in the platform (or ‘gig’) economy. Our tentative first assessment is positive: while there is some room for improvement during the legislative process, the framework laid down promises to tackle some of the most salient problems arising from platform work.
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Of Vampires and Enemies
Anti-corruption legalism is often a symptom of a broader phenomenon: the securitisation of corruption. Taken together, securitisation and anti-corruption legalism are counterproductive approaches: they undermine the evolution of democratic values, political accountability mechanisms, and independent constitutional institutions that form the bedrock of meaningful and sustainable anti-corruption strategies.
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In Court for Saving Lives
The trial against human right defenders Séan Binder and Sarah Mardini was supposed to start on 18 November 2021 at the criminal Court on the Greek island of Lesvos. The core charge of the prosecution, the facilitation of irregular entry of third country nationals, is based on the EU Facilitator’s Package and Greek anti-smuggling laws, both of which are at variance with international law standards related to smuggling. The remaining charges pressed upon Binder and Mardini are excessive and likely to be proved unfounded for lack of sufficient evidence. The whole process is just another example of the ongoing criminalization of humanitarian assistance to refugees and asylum seekers in Europe.
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Pride or Prejudice?
The joined cases IX v Wabe and MH Müller Handels GmbH offered the CJEU a second chance to heed the arguments raised against Achbita and reconsider its decision. Hopes that the Court would be willing to revise Achbita diminished significantly after AG Rantos’s disappointing Opinion in the case. Last week's decision in IX v Wabe to largely uphold Achbita was then also unsurprising, but nevertheless disappointing.
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