‘Relevant Rules’ as Normative Environment
On 21 May 2024, the International Tribunal for the Law of the Sea (ITLOS) delivered its much anticipated Advisory Opinion on Climate Change. This post zeroes in on one particular interpretative issue, and its wider ramifications for the development of international law, namely the Tribunal’s approach to Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT) (which enshrines the principle of systemic integration) in connection with the interpretation of UNCLOS. Although ITLOS did not elaborate in detail on its approach, as can be seen from its entire analysis, the Tribunal has demonstrated a clear and principled choice with respect to the content and application of Article 31(3)(c) VCLT and its customary counterpart.
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Rechtsaußen in Europa
Die Alternative für Deutschland (AfD) ist nicht die einzige Rechtsaußen-Partei, die vor einem möglichen Wahlerfolg steht. In vielen europäischen Ländern erleben Parteien die sich vehement gegen Einwanderung, die vermeintliche „Elite“ und die Europäische Union (EU) wenden einen Popularitätsschub. Meinungsumfragen deuten darauf hin, dass sie bei den kommenden Europawahlen im Juni 2024 bis zu einem Viertel der Sitze gewinnen könnten. Bei näherer Betrachtung wird jedoch deutlich, dass es trotz ihrer augenscheinlichen Kameradschaft und gemeinsamen Ideologie bemerkenswerte Unterschiede zwischen diesen Kräften in den 27 EU-Mitgliedstaaten gibt.
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Polish Re-Democratisation as “Building Back Better”
Since the new Polish government took power, it has taken first steps to restore the rule of law. These have been quite different in nature, from the soft appeals to comply with the case law of the CJEU to more uncompromising and confrontational measures, like taking control of the public broadcasting TVP. It is clear that restoring a damaged liberal democracy requires a different mindset than fighting its demise. While the latter aims to strategically delay the anticipated undemocratic endeavours, the former must constructively rebuild. I call this ‘Building Back Better’, akin to the UN risk-reduction approach employed to avoid future disasters.
Continue reading >>The EU’s Pacing Problem
The EU regulators face a pacing problem. This has been demonstrated several times during the legislative process of the AI Act itself: for example, the initial Commission proposal from 2021 did not include a definition of General Purpose AI (GPAI). The proposal did not anticipate the rise of Large Language Models like ChatGPT and GPT-4 but only addressed AI systems designed for specific purposes. This lacuna in the original proposal has haunted the EU Parliament, Council and Commission in the past final weeks of the trilogue negotiations, where the inclusion of so-called Frontier Models has been hotly contested. This blog post explores potential boosters for the EU's capacity to regulate AI: delegated legislation, soft law, and a centralized AI office.
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The Price of Transatlantic Friendship
While the citizens of most EU Member States enjoy visa-free travel to the US, citizens of Bulgaria, Romania and Cyprus do not. Following the Commission’s repeated refusal to activate the reciprocity mechanism in EU visa law to remedy this inequality in access to visa-free travel, the European Parliament asked the CJEU whether the Commission was under an obligation to do so. The Court answered in the negative, holding instead that the Commission had wide discretion in this regard. Its reasoning centers the sensitive political nature that visa retaliation vis-á-vis the US implies, while failing to instill a sense of urgency in working towards equal treatment of EU citizens. This threatens to perpetuate a situation in which the advantages of supranational integration in the context of the Schengen acquis are permanently withheld from nationals of Romania, Bulgaria and Cyprus.
Continue reading >>How to Respond to the Far Right
Across the European continent, far-right parties are soaring in opinion polls. As the far right continues establishing its presence on the mainstream political stage, the urgency to address its rise and normalisation cannot be overstated. But which strategies are effective when and why?
Continue reading >>A Nail in the Coffin of Hong Kong’s Rule of Law
Media tycoon and pro-democracy activist Jimmy Lai has been the continued target of prosecution by the Hong Kong government. In a recent judgment, he has been convicted of fraud and handed a prison sentence of almost six years. As a result, another worrying development in a National Security Law (NSL) case against Lai, in which he is accused of inter alia conspiring to ‘collude with a foreign country or external elements’, has received significantly less attention. This concerns a 13 December ruling by the High Court of Hong Kong to adjourn the NSL trial until September 2023, in order for the Standing Committee of the National People’s Congress (NPCSC) to give an interpretation on whether foreign barristers are allowed to represent clients in NSL cases. In this blog post, I will use the NSL case against Jimmy Lai to examine some of the consequences of the NSL for the rule of law and the rights of defendants in Hong Kong.
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The Right to be Forgotten in 2022
On 8 December 2022, the Court of Justice of the European Union delivered its latest landmark judgment on the ‘right to be forgotten’. Despite the largely incremental character, the continuing legal manifestation of the right to erasure/be forgotten/de-referencing raises more fundamental questions on the governance of the datafication of society in the EU.
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Now What
The question of the DSA's enforcement has already been getting considerable attention, with one of the main concerns being that the resources put forth by the European Commission are too humble when compared to the DSA’s far-reaching goals. More concerningly, the DSA leaves loopholes and grey areas in respect to native advertising and the influencer economy.
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The Language of Power
Professor Tarunabh Khaitan’s ICON editorial on “scholactivism”, as well as his September 2021 Letten Prize lecture on "The Role of the Legal Scholar in the World" are unsettling. Although stepping aside and standing by may feel satisfactorily pure and avoids tensions as well as personal attacks in a post-truth world, it is not neutral – simply because any activity relating to constitutional law, active or passive, is inevitably a statement about politics and power. Instead, constitutional lawyers have a professional obligation to explicate in the public debate what forms the implicit basis of all conversation between them: the very relevance of the law to power and politics.
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Unmatched Levels of Sanctions Coordination
In early 2022, the European Union (EU) was quick and decisive in imposing an unprecedented set of measures against Russia. Among other things, the EU targeted the Russian Central Bank, which is an extraordinary move, given that central banks are rarely on sanctions lists. Reconciling the interests of 27 Member States is an art itself, especially in a highly sensitive policy area which continues to be dominated by individual Member State interests. Overall, the swiftness of EU measures went beyond most of our expectations.
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Police Action or War?
The conflict in Indonesia in 1945–1949 was not a police action against insurgents in the context of a colonial territory in which domestic law alone was applicable; it was an international armed conflict in the context of independence in which international law should have played its role. The crimes committed during the conflict from both sides were war crimes and crimes against humanity.
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A Closing of Ranks
On 11 and 12 October the Court of Justice of the European Union sat in Full Court composition (a rarity) to hear Hungary’s and Poland’s challenge of the legality of the rule of law conditionality regulation. Its ruling will follow (hopefully shortly) the Advocate-General’s Opinion announced for 2 December 2021. It will most likely reconfirm that the Union legal order is based on clear and binding rule of law norms, and that these must, of legal necessity, apply across all EU policy fields, including the EU budget. It will be a judgment of great significance about the very nature and purpose of the EU.
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