02 Juli 2022

Milestones

About the other things Verfassungsblog is doing Continue reading >>
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Etappenziele

Über das, was der Verfassungsblog sonst noch so macht Continue reading >>
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01 Juli 2022
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The Logic of Patriarchy

With two decisions, the highest court in the U.S. judicial system shed the mantle of law. In Dobbs v. Jackson Women's Health Organization, the two-thirds majority of five male justices and one female justice of the Supreme Court declared the abortion right, vouchsafed in the legendary Roe v. Wade decision in 1973, to be moot and gave its blessing to Mississippi's abortion ban. Within just a week, the same majority, half appointed by Donald Trump, tore the controversial right to keep and bear arms from its dogmatic moorings in the Second Amendment. As overtly political measures, both rulings combine a preference for patriarchal society with a bonus for toxic masculinity. It remains to be asked how long the structurally minoritized women justices of the Court will participate in this legitimacy game Continue reading >>
30 Juni 2022

Scottish Indyref 2

On Tuesday 28 June, First Minister Nicola Sturgeon addressed the Scottish Parliament about her plans for a second independence referendum. According to the proposed Bill, the referendum will take place on 19 October 2023. The announcement reopened the age-old debate about the ‘festering issue’ whether Holyrood does possess the power to organise such referendum without the explicit consent of Westminster. Continue reading >>
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The Core of the European Public Space

Increasing the visibility of the constitutional fundamentals of the Union takes on existential importance in times of constitutional reckoning or, as some call it in more ominous terms, in times of “capitulation”. It is for that reason that art. 19(1) TEU should be amended to reflect the case law of the Court of Justice and thus to codify the core that binds the Member States to the discipline of the legal order. Continue reading >>
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29 Juni 2022

Trumping International Investment Law

An Award rendered on 16 June 2022 by a Stockholm-seated Arbitral Tribunal unleashed a foreshadowed earthquake regarding intra-EU investment protection disputes. The Tribunal declined jurisdiction based on the intra-EU nature of the dispute, which arose after two Danish companies had invested in Spanish photovoltaic power plants. The Award rendered under the Energy Charter Treaty (ECT) and the arbitration rules of the Stockholm Chamber of Commerce (SCC) marks the first time an arbitral tribunal has denied its jurisdiction (ratione voluntatis) because of the intra-EU objection raised by the Respondent. Continue reading >>
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The Ogiek Struggle for Recognition in Kenya

In a judgment handed down in Arusha on 23rd June 2022, the African Court on Human and Peoples’ Rights (ACHPR) affirmed its 2017 ruling that the Ogiek people are indigenous to the Mau Forest and that they are its ancestral owners, granting them a collective title to be achieved through delimitation, demarcation and registration of their land. The reasoning by the Court will have a significant bearing on the struggles of other indigenous peoples seeking to secure their land and livelihoods. Continue reading >>
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Europe Needs a Civil Society Strategy

In a number of EU countries, governments are squeezing civic space, rendering it increasingly hard for civil society to operate. A comprehensive strategic approach to partnering with civil societies would allow the EU to more effectively tackle growing illiberalism and ambivalence about democracy. Continue reading >>
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26 Juni 2022

Generation Action

Über Verzweiflung, Generationenversagen und Hoffnung. Continue reading >>
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Generation Action

On despair, generational failures, and hope. Continue reading >>
24 Juni 2022
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Courts and Cannabis Sativa for Medical Purposes in Brazil

The Brazilian Superior Court of Justice – not the Federal Supreme Court – had recently decided that planting and transporting cannabis sativa aiming at extracting oil for medical ends shall not be treated as a crime. Contrary to the recent allegations of judicial activism made by President Jair Bolsonaro against the Brazilian judiciary, the Superior Court of Justice ruling is a good example of a decision based on the 1988 Constitution, the statutory law referred to in the case and several other authorities contributions, which all helped to construct the court’s arguments, as this post will show. Continue reading >>
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Russian Elites, Proxies, and Oligarchs – Make them Pay!

Russland und seine starken Männer sollen buchstäblich für die Kriegsschäden in der Ukraine zahlen. Die Kommission schlägt vor, die Durchsetzung von Sanktionen mit unionsweit einheitlichen Strafandrohungen zu stärken und auf diesem Weg elegant zugleich einen Rechtsgrund für die Einziehung involvierter Vermögenswerte zu schaffen. Diesem Vorhaben stehen ungeachtet seiner politischen Opportunität erhebliche sanktionstechnische, unionsrechtliche und vor allem strafrechtliche Bedenken entgegen, die erhebliche Zweifel an Zulässigkeit und Erfolgsaussichten nähren. Continue reading >>
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Fundamental Rights at the Digital Border

We are witnessing the emergence of the EU’s ‘digital border’: an ecosystem of interoperable databases to expand the surveillance and control of the movement of third-country nationals. In this blog post, we discuss one of the latest additions to this ecosystem - the European Travel Information and Authorisation System, or ETIAS in short - and argue that the system as it is currently set up violates the right to data protection laid down in Article 8 of the Charter of Fundamental Rights, especially in light of the CJEU’s PNR judgment earlier this week. In many ways, we consider ETIAS to be a test case for a much wider roll-out of such often AI-powered technologies in the field of border control. Continue reading >>
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23 Juni 2022
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Governing the Memory of the Present

Putin’s Russia is a global champion of memory laws that fabricate the state’s perennial innocence and glory and make it a criminal offense to diverge from the state-sanctioned historical narratives. The state’s propaganda has also promoted symbols that convey support for or condoning of the Russia’s war, such as the “Z”, “V”, and St. George's ribbon. The emergence of these symbols in the public sphere has put militant democracy provisions existing in many European legal orders into the spotlight, but also propelled lawmakers in some states to adopt new provisions prohibiting the use of such symbols. We discuss the reaction mechanism in Lithuania, Germany, and Poland. Continue reading >>
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A Directive altered beyond recognition

On 21 June 2022, the Court of Justice of the European Union rendered its decision in the preliminary ruling procedure on the fate of the PNR Directive. The Court had a chance to decisively answer one of the most crucial questions facing European security law: Is indiscriminate mass data retention for and the technology-induced analysis of ordinary human behavior compatible with fundamental rights? It instead opted for an enigmatic compromise creating a whole host of new questions. It does not change the fact that the PNR Directive survives – as a strange beast altered beyond recognition. Continue reading >>
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Tackling Discrimination in Targeted Advertising

On 21 June Meta and the US Department for Housing and Urban Development released a legal settlement that will restrict Meta’s ability to offer those clients some of its core ad-targeting products. It resolves (for now) a long-running case over discriminatory targeting of housing adverts. Meta is now prohibited from using certain targeting tools in this context, and has promised new tools to ensure more representative targeting. This US lawsuit should be a wake-up call for European regulators, reminding them that taking systemic discrimination seriously requires proactive regulatory reform and enforcement. The relevant provisions of the Digital Services Act (DSA) are largely symbolic. Continue reading >>
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22 Juni 2022

Pregnancy Registry in Poland

In Poland and beyond, a media storm broke out in the beginning of June because of the so-called "pregnancy registry." The problem at the heart of the media storm is that if a woman decides to terminate her pregnancy, for example, abroad, it will be known because of the system's pregnancy data and prenatal test results. Nevertheless, it is difficult to judge this registry unequivocally, especially after hearing the arguments of both sides. Continue reading >>
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21 Juni 2022

Experimenting with European Democracy

The Conference on the Future of Europe came to an end on 9 May, with the presentation of a final report of 49 recommendations and 329 specific measures to the  presidents of the three EU institutions. While it is unclear what the exact follow-up to the Conference will be, the upcoming Council Summit on 23-24 June will show whether a simple majority of Member States is open to starting the process for a Treaty change. Continue reading >>
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Covering Up and Rewarding the Destruction of the Rule of Law One Milestone at a Time

Once upon a time, when still a candidate for President of the European Commission, Ursula von der Leyen solemnly declared: “there can be no compromise when it comes to respecting the Rule of Law. There never will be.” As it is now clear, this was just Orwellian doublespeak. Continue reading >>
20 Juni 2022

How the Philippines Could Overcome Its Deep Mistrust of Constitutional Reform

The Philippines has had three constitutions. Despite numerous attempts, the 1987 Constitution has not been amended since its ratification. Initiatives to change a constitution, and moves of resistance, are part and parcel of a constitutional democracy. Actually, the Philippines finds itself in a fortunate position, because the failure of past attempts at amending the 1987 Constitution can offer valuable lessons. Continue reading >>
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The Rule of Law in a Reign of Terror

India is witnessing a spate of housing demolition used as a tool to inflict extrajudicial punishment for dissent. Over the past few months, the bulldozer has emerged as a powerful metaphor for the brute force of the state and the endless machinations of Hindu supremacists to flatten any difference or diversity they encounter. Tempting as it is, to think of the recent demolitions as a shocking new development, in fact the bulldozer has always been a significant determinant of the contours of space in India. Continue reading >>
18 Juni 2022

The Role of Referenda in Orban’s Regime

Following the parliamentary elections and the national referendum in April 2022, the OSCE found that the legal framework was inadequate for the conduct of a democratic plebiscite. Even though the observers noted several shortcomings of the legal regulation and documented many serious anomalies of the electoral system, they failed to put their analysis in a broader political and legal context. The aim of this short piece is to briefly describe the role that the referenda play in Orbán’s regime. Continue reading >>
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17 Juni 2022

Pressure Drop

For years, we have been living in a toxic relationship with authoritarian populism. No wonder everyone's so exhausted. Continue reading >>
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Druckabfall

Seit Jahren leben wir in einer toxischen Beziehung mit dem autoritären Populismus. Kein Wunder, dass wir alle so erschöpft sind. Continue reading >>
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The UK’s anti-legal populism

Calls for UK withdrawal from the ECHR are raised at fairly regular intervals in certain quarters of the Conservative party, but this week various members of the Government, including the Prime Minister. Reason for this was an interim measure by the European Court of Human Rights that stopped a deportation flight to Rwanda. It was entirely predictable that calls for UK withdrawal from the ECHR would resurface. Less predictable for many, are the implications this would hold for the EU-UK Trade and Cooperation Agreement. Continue reading >>
15 Juni 2022

British Bare Necessities

In the latest episode of the Brexit saga, the United Kingdom government has published the Northern Ireland Protocol ('NIP') Bill, by which it seeks to unilaterally disapply large parts of the Protocol on Ireland/Northern Ireland to the 2019 Withdrawal Agreement (‘WA’) concluded between the UK and the European Union. The British government has shared a summary of its legal position, seeking to justify the NIP Bill on the basis of the doctrine of necessity. However, this justification seems to be a literal, if unconvincing, attempt to make a virtue of necessity. Continue reading >>
14 Juni 2022
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Moving Beyond Token Participation

The concept of human rights due diligence was developed over the past decade as a way for companies to grapple with adverse human rights violations and impacts connected to their business practice, including within their value chains. In February of this year, the European Commission published a proposal for European Union-wide mandatory human rights due diligence for companies that fall under its scope. For such legislation to succeed in advancing the rights of the most affected and to lead to better human rights outcomes for rights-holders, it is crucial to anchor such laws and regulations with not only the perspective of rights-holders but their ongoing involvement. To do otherwise would miss an invaluable opportunity to improve the landscape of business and human rights to center rights-holders in the years to come. Continue reading >>
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13 Juni 2022

Serbia on Hold

Since 3 April 2022, when elections at all levels were held, Serbia has been on hold. Two months after the elections, only the President of Serbia has begun to serve his regular mandate, while the official results of the parliamentary elections are yet to be proclaimed, the new composition of the National Assembly is yet to be convened, and the new government is yet to be formed. Russia’s aggression against Ukraine, which occurred at the beginning of the election campaign, added to the already tense political situation. Continue reading >>
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10 Juni 2022

Folgt dem Geld

Warum wir aufhören sollten, von "Euroskeptikern" zu reden Continue reading >>
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Follow the Money

Why we should stop talking about "Eurosceptics" Continue reading >>
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09 Juni 2022

How the Data Retention Legislation Led to a National Constitutional Crisis in Portugal

Some weeks ago, the Portuguese Constitutional Court (PCC) triggered a heated political debate on the need to amend the Constitution to grant criminal investigative authorities access to metadata on personal communications. Whilst disagreements between the political branches and the constitutional jurisdiction are common, this conflict is located at a wider critical juncture that intersects EU and national constitutional law, the CJEU, the domestic constitutional court, and ordinary courts. Continue reading >>
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08 Juni 2022

Censuring von der Leyen’s Capitulation on the Rule of Law

The spectre of a motion of censure is looming over the von der Leyen Commission. While this rather extraordinary, perhaps desperate, measure appears unlikely to attain the required number of signatures to be tabled – and even less likely to be adopted by the European Parliament –, this initiative deserves some scrutiny. Perhaps even some praise by those who still believe in the primacy of law over power.  Continue reading >>
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06 Juni 2022

Compensation Without Recognition

The German-Italian dispute over civil liability for Germany’s crimes during World War II has developed into a veritable saga. This saga, however, might come to an end soon. By passing the Decree-Law of 30 April 2022, No. 36, the Italian government has temporarily blocked the distraint of properties of Germany located in Rome. Furthermore, the Decree-Law has established a fund through which the Italian government aims to definitively close the issue by paying compensation to the victims in place of Germany. Even if in the future Germany decides to contribute to those compensations, such a solution would fail to acknowledge that historical justice is not just about financial compensation. It is about listening and recognition. Continue reading >>
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The European Commission Cedes its Crucial Leverage vis-à-vis the Rule of Law in Poland

The worst thing about the European Commission’s decision of 1 June 2022 to approve Poland’s EUR 36 billion national recovery plan, despite this country’s very meek (to put it mildly) assurances about improvements to its rule-of-law situation, is not even its substance, bad though that is. Worse still is the sequencing. Continue reading >>
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03 Juni 2022

Mühlsteine

Eine abscheuliche Woche für die Europäische Union Continue reading >>
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Millstones

A dreadful week for the European Union Continue reading >>
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The French Constitutional Council’s Problem with Impartiality

If only one example was needed to show the oligarchic nature of the French political system and the limited power of civil society, the game of musical chairs that was played between the Government and the Constitutional Council in the decision “Association La Sphinx” would be perfect. Two ministers directly involved in the drafting of the challenged policy were also judging the constitutionality of the legislative provisions they themselves brought forward. The Constitutional Council’s rules of procedure dismiss impartiality concerns in such cases. This management of conflicts of interests in this court is unacceptable. Continue reading >>
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02 Juni 2022
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Competition and Conditionality

On 5 April 2022, just two days after the Hungarian national elections, the European Commission formally announced that it would apply the conditionality mechanism enshrined in Regulation 2020/2092 in relation to Hungary. In the past the Commission has frequently addressed issues related to “systemic irregularities, deficiencies and weaknesses in public procurement procedures”. In Hungary, however, it has not probed the enforcement of competition (cartel) law in public tender procedures. The Commission should seize the opportunity to act in this area. Continue reading >>
01 Juni 2022

Just a Feint?

A running joke in the pro-democratic military analyst community is about ridiculing the messages of pro-Russian experts who are pretending that the Russian defeat in the battle of Kyiv was "just a feint". I am afraid that the European Commission just walked into a similar strategic blunder with its deal with the Polish government on the recovery fund and the Supreme Court. Continue reading >>
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Travelling Courts and Strategic Visitation

It is not very often that an on-site meeting of a German higher regional court makes its way to the front pages of international news media. Yet, the reported visit of judges and court-appointed experts from the OLG Hamm, one of 24 higher regional courts in Germany, has achieved just that when the nine-person group traveled to the Andean city of Huaraz in Peru in late May 2022. This was after all no ordinary visit. They had come to see with their own eyes whether Saúl Luciano Lliuya’s house is threatened by outburst floods from Lake Palcacocha. We argue that this form of “strategic visitation”, similar to strategic litigation, might not result in a judicial breakthrough but holds important symbolic and political significance. Continue reading >>
29 Mai 2022

British Cavalier Attitude

On 17 May, the UK’s Foreign Secretary, Liz Truss, announced to the House of Commons that the Government would be introducing legislative proposals to supersede the Northern Ireland Protocol (NIP). This drastic measure is the culmination of strained negotiations between the UK and the EU to modify the NIP since summer 2021. Stepping outside of the framework of the Withdrawal Agreement to address the claimed problems, the UK challenges the Rule of Law in international relations. Continue reading >>
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The Never-Ending Struggle Over (Northern) Ireland

Claiming the need to “protect the Belfast/Good Friday Agreement in all its dimensions”, the UK government threatens once again to adopt legislation unilaterally changing the Protocol Ireland/Northern Ireland. In legal terms, this would constitute a breach of the Withdrawal Agreement between the EU and the UK. But does the Good Friday Agreement indeed exclude divergence between Northern Ireland and Great Britain or even demand protecting trade from GB to Northern Ireland? Continue reading >>
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27 Mai 2022

Slugs of Berlin

Cleaning up after last year's capital election debacle Continue reading >>
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Dütt is Berlin

Aufkehren hinter dem großen hauptstädtischen Wahl-Debakel Continue reading >>

Revitalizing the Right to Abortion in Kenya

On 24 March 2022, the Kenya High Court delivered a momentous ruling on the right to abortion. The decision sets a tempo in safeguarding women’s rights not only in Kenya but across the world. It is yet another great contribution from the Global South to global constitutional debate, reminding us that judges should be ready and willing to deploy their interpretive armory when protecting rights. Continue reading >>
26 Mai 2022

Partygate, Inquiries, and how not to Learn Lessons in the UK

Responding to public pressure and the criticisms of bereaved families, many states have begun to examine the actions and decisions taken during the COVID-19 pandemic. Public inquiries or parliamentary investigations are an essential step in this examination and can provide lessons to support an effective future response to crisis. In any such investigation, the question of who investigates and what is investigated can be as important as the findings themselves. However, a barrier to learning will be the political pressure not to own up to failures or failings, particularly where it concerns a culture of government or a style of governance still practiced. What this can collectively amount to is a failure to learn: a critical failing where it is not question of if a future crisis arises – but when. Continue reading >>
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Illiberals of the World Unite in Budapest – Yet Again

Despite their strong localist and nativist inclinations, traditionalism does not turn illiberal democrats and autocrats against international cooperation, and their political ambitions do not halt at disrupting the operation of supranational organizations. Rather, they use both ad hoc opportunities and a regularly recurring annual events for networking. What marks these occasions is the careful selection of trusted participants based on strong personal connections, along shared values across different religions and continents. Continue reading >>
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21 Mai 2022

Enabling Digital Authoritarianism in the Name of Counterterrorism

Nigeria's transition to a digital economy is in full swing. As terrorism and violent extremism are ravaging certain parts of the country, the mounting insecurity has necessitated huge budgetary allocations to national security, giving way to a new kind of digital authoritarianism. Serious concerns have been raised regarding the misuse of collected data and arbitrary surveillance, which undermine human rights and civic freedoms. Continue reading >>
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20 Mai 2022

Einfach mal machen

Wahlrechtsreform als Risikoentscheidung Continue reading >>

Just do it

Electoral Reform as a Risk Decision Continue reading >>
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The European Union and Preventive (In)Justice

The expansion of the EU counter-terrorism acquis has signified what I have called the preventive turn in European security policy. Preventive justice is understood here as the exercise of state power in order to prevent future acts which are deemed to constitute security threats. There are three main shifts in the preventive justice paradigm: (i) a shift from an investigation of acts which have taken place to an emphasis on suspicion; (ii) a shift from targeted action to generalised surveillance; and, underpinning both, (iii) a temporal shift from the past to the future. Continue reading >>
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19 Mai 2022

What Culture Wars Hide

The American Conservative Political Action Coalition (CPAC) is meeting in Budapest on 19-20 May. The meeting signals that US conservatives have chosen Hungary as proof of concept for the politics they want. Prime Minister Viktor Orbán is proudly illiberal and proudly politically incorrect. Having won his fourth consecutive election in April with his largest parliamentary majority yet, Orbán demonstrates to American conservatives that his brand of politics can triumph. Continue reading >>

Those Dazzling Stars of Peace, Democracy and Freedom

In the dark, post-Soviet 1990s, Europe and America were viewed as shining spots by us, the young people, born in the Soviet Union. Embodying the West, they served as dazzling stars, relieving the darkness and promising freedom, security and happiness. I associate the brightest star with the symbol of human rights. I fondly remember myself, as a third-year law student, getting a strong sense of pride over the Chapter Two of the newly adopted Constitution of Georgia that is devoted to human rights. Continue reading >>
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18 Mai 2022

GDPR Collective Litigation Against Facebook

The recent CJEU Case C-319/20, Meta Platforms Ireland provides insights on the interpretation of Article 80(2) of the Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (GDPR), which regulates representative actions in the data protection field. The Court of Justice specified that actions protecting general interests fall under the scope of Article 80(2) GDPR, but leaves the task unmoved to reconcile this provision with the Directive on Representative Actions (DRA). Continue reading >>
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From the War on Terror to Climate Change

From terrorism and economic crisis, to COVID-19 and climate change; the first decades of the 21st Century have seen democracies lurch from crisis to crisis, implementing legal and political responses to tackle the threat at hand. Many of these ostensibly emergency responses have, however, become permanent, raising profound challenges to the legitimacy of both the constitutional norms impacted by the emergency response, and the emergency response itself. This plea to emergency must, however, be interrogated; Ultimately, what is key to understanding permanent emergencies is not the threat but the decision-maker that claims such an emergency exists. Continue reading >>
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17 Mai 2022

Direct Democracy or Climate Litigation?

The Klimaseniorinnen case has gained worldwide attention since the announcement of the relinquishment in favour of the Grand Chamber. The case is one of many strategic proceedings initiated around the world to sanction inaction or insufficient action by states on climate issues. While the Swiss government claims that the Swiss political system, with its democratic instruments, offers sufficient possibilities for the consideration of such claims, this blog post argues that the Swiss right to initiative alone is not sufficiently effective and therefore not an alternative to legal proceedings. Continue reading >>
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Boda boda registration in Kenya

In Kenya, typical moments during which citizens' rights are limited have followed emergencies, such as terrorist attacks or the COVID-19 pandemic. It is much easier to implement personally invasive policies such as biometric identification under urgency and addressing only a section of the public. A recent incident involving motorcycle taxis in Kenya, popularly known as boda bodas, illustrates this. Continue reading >>
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The other legacy

The 9/11 attacks triggered a new practice of and renewed interest in emergency powers. Without doubt, the United States were at the forefront of the enhanced exercise of such powers, but France is a very interesting example of the many issues and challenges raised by states of emergencies' normalization. France has been governed under a state of emergency for more than half of the time that has elapsed since the attacks of 13 November 2015. Continue reading >>
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16 Mai 2022

A Swedish NATO Membership and Its Constitutional Barriers

After the Russian invasion of Ukraine, the debate about a possible NATO membership in Sweden has been intense. The ruling Social Democratic Party was against a membership for a long time, but on Sunday 15 May it changed its position. Now everything points to a Swedish NATO accession and it seems likely that the constitutional barriers for that are surprisingly low: parliamentary approval with a simple majority vote. Continue reading >>
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Climate Change Litigation Before the ECtHR

Verein KlimaSeniorinnen Schweiz and Others v. Switzerland is the first case of climate change litigation before the ECtHR where all domestic remedies have been exhausted. The Chamber to which the case had been allocated relinquished jurisdiction in favour of the Grand Chamber. This reinforces the potential of the case to become a landmark ruling determining the Court’s approach to climate change.

Continue reading >>
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Between Filters and Fundamental Rights

On 26 April 2022 the CJEU delivered its much-awaited judgement in Case C-401/19 – Poland v. Parliament and Council. The case concerns the validity of Article 17 of the Copyright in the Digital Single Market Directive in light of fundamental rights. The judgment marks the climax of a turbulent journey in the area of copyright law, with potential implications for the future of platform regulation and content moderation in EU law. Continue reading >>
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Counter-Terrorism, the Rule of Law and the ‚Counter-Law‘ Critique

The Rule of Law requires that the law be a reliable and non-oppressive guide to how citizens should act: as such, the laws governing every citizen must be rationally knowable and voluntarily followable (and, by extension, open to rational challenge and justification). Tendencies in counter-terrorist legislation clearly run counter to the Rule of Law thus understood. Every move away from knowable and followable laws is a move away from it. Continue reading >>
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13 Mai 2022

Vom Wühlen

Maulwürfe wie wir Continue reading >>

On Burrowing

Moles like us Continue reading >>
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Drifting Case-law on Judicial Independence

In a preliminary ruling of 29 March 2022, in case C-132/20 Getin Noble Bank, the CJEU answered questions on judicial independence of judges appointed under an undemocratic regime and of judges appointed before 2018 in an allegedly flawed process. Taking a highly formalistic approach, the Court seeks to preserve judicial dialogue between itself and the national judges – at the expense of the rule of law and judicial independence. Continue reading >>
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12 Mai 2022

The Placeless Parliament

Parliaments form a structural fixture in government districts around the world, they are the pivotal place where public affairs are negotiated and formulated. The Russian assault on Ukraine has made it abundantly clear that this place no longer exists in Kiev. At least it is no longer available to the representatives, and the parliament is forced to reinvent itself as a "placeless actor“. It is not very surprising that this reinvention is taking place in the digital space. Continue reading >>
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The Dilemma of Mild Emergencies that are Accepted as Consistent with Human Rights

Amid the pandemic and the war in the Ukraine, Canada had a quiet emergency. On 14 February 2022, the federal government used the Emergencies Act to respond to a three week occupation of the Parliament building and various border blockades. This was a mild and quick emergency, as far as emergencies go. Mild emergencies that arguably respect rights are better than severe emergencies that do not, yet there is cause for concern. Continue reading >>
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The War in Ukraine, Fake News, and the Digital Epistemic Divide

The ongoing war in Ukraine sheds light on crucial challenges of our digital media landscape. The social media-driven “(mis)information wars” surrounding the Russian invasion expose a growing epistemic divide running through liberal democracies. The regulatory focus on truth, with measures like fact-checking, serves little to cure the larger problems behind this. We should rather use the power of the law to devise new modes of intelligent speech regulation mimicking the functions formerly played by the centralized set-up of communication conditions. Continue reading >>
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11 Mai 2022

RePowerEU and End War by Ending Fossil Fuels

Putin’s criminal war on Ukraine has forced the Commission to say it will ‘RePowerEU’, to end Russian fossil fuels. We must clearly end all fossil fuels, and drive as fast as technology allows to 100% clean energy. To do this we should capitalise upon the vast range of legal options in our European economic constitution: that is the ‘law of enterprise’. The geopolitical situation requires us to see our law as an organic, social whole, and for all private and public actors to be on board. Continue reading >>

Law’s Fate under the US “War on Terror”

More than 20 years after the US declared “war on terror” we must assess the damage it inflicted on the core values embodied in the rule of law and the success of efforts to defend them. The fate of the rule of law — whose raison d’être is to restrain the state from abusing its power — itself depends on politics. Party control of the executive and legislature (which in turn shapes the appointment of judges) was the single most powerful determinant of responses to the numerous abuses under all four administrations since 9/11. Continue reading >>
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10 Mai 2022

Never-Ending Exception

The planned 10th amendment to the Hungarian constitution aims to rewrite the current rules of Article 53, which allows the government to declare a state of danger (and rule by decree as it did during the last two years) in the event of a natural or industrial disaster endangering lives and property, or to mitigate the consequences thereof. According to the proposed new rules, the government will also be able to declare this kind of emergency ‘in the event of armed conflict, war or humanitarian catastrophe in a neighbouring country’. This is just the latest chapter in the story of the democratic and rule-of-law backsliding in Hungary. Continue reading >>
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De-AKPification

Opinion polls by Turkey’s reputable polling firms consistently indicate that the governing AKP and its de facto coalition partner, the far-right nationalist MHP, are losing their popularity and heading to a potential defeat in the upcoming presidential and parliamentary elections of 2023. As an anti-AKP victory, or at least the real possibility thereof, draws near day by day, a vital question arises: how should opposition forces treat AKP operatives in the judiciary and bureaucracy? Is it possible to “de-AKPify” ex- or soon-to-be-ex-AKP operatives? Continue reading >>

The United Parliament

While we frequently hear about Presidents taking the role of a commander in chief in times of war, the legislature, too, can play an important role. Whether a country succeeds in a war depends not least on how well its legislature is able to adjust to face the challenges of war. This blog post takes a closer look at the Ukrainian Parliament – the Verkhovna Rada (the Rada hereafter) – and its roles and activities during the war of the Russian Federation on Ukraine. Continue reading >>
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“When in doubt, detain!”

Israel recently saw a bout of terror attacks, including three assaults in a single week in late March 2022, and more since. The Israeli Government, in an attempt to curb the violence, decided among other steps to administratively detain without trial not only suspected possible terrorists from the Occupied Territories (as it regularly does) but also possible suspects among Israeli citizens. The use of administrative detentions without trial is a good example of the permanent mindset of emergency, as they are utilized as a regular means of government: when in doubt, the Israeli government detains. Continue reading >>
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09 Mai 2022

The Costs of Mass Surveillance in Slovakia

Solving the dilemma of how much surveillance is needed to maintain security and not crossing the threshold of its excessive interference with rights is not easy. It is an ongoing process, also in Slovakia, influenced by many factors - the fight against terrorism, despite not being a prominent threat for the country, has been one of the major drivers of invasive state surveillance. When this happens in the context of weak institutions, it leads to the deterioration of democracy. Continue reading >>
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On 9/11 and three natures of a permanent state of emergency

One particular consequence of the post-9/11-counterterrorism paradigm is there has been a rapid and global expansion of emergency powers, as terrorist threats are viewed as creating a ‘permanent’ emergency. This is not to say that the post-9/11 war on terror was new as far as the issues of states of emergency are concerned, but rather, as aptly put by Dyzenhaus, "all that is new is the prevalence of the claim that this emergency has no foreseeable end and so is permanent.” Continue reading >>
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08 Mai 2022

Wrong to the Core

On May 4, 2022, close to midnight, the Supreme Court of Israel released its judgment in HCJ 413/13 Abu Aram v. Minister of Defense, holding that the Israeli army is permitted to evict eight Palestinian communities in Masafer Yatta, a rural area in the South Hebron Hills in the West Bank, for the stated purpose of establishing a “firing zone” for the IDF. The judgment sealed over two decades of litigation, in which the Court pushed the parties to settle and “compromise.” Unfortunately, the decision in this case is wrong to the core. Continue reading >>
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07 Mai 2022

“We the Territorial People” and the Russia-Ukraine War

Not enough attention has been devoted to Russia’s demands that Ukraine amend its constitution to recognize Crimea as Russian territory as well as accept the independence of the separatist regions in eastern Ukraine – Donetsk and Luhansk. Though it may not seem intuitive, constitutional law and its accompanying methods of holding referenda to amend constitutions is at the heart of the conflict between Russia and Ukraine. Is constitutional amendment the way to achieve a breakthrough? What conditions must be met to legitimize secession, which includes the breaking apart of citizens along with the state’s territory, on which they reside? Continue reading >>
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06 Mai 2022

Sachsen

Was wir leben, wenn wir die Verfassung leben Continue reading >>
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Saxony

What we are living when we are living the Constitution Continue reading >>
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A Court With Powerless Judges

The new appointments of judges to the French Constitutional Council, I described in an earlier post this week, are certainly important but also less decisive than one might think. The structure and the functioning of the Court are built to minimize the power of its judges. The real decisions are made by the legal department of the Court’s administration. Continue reading >>
05 Mai 2022

Democracy Under Total War

Ukraine is engaged in an existential war for survival. One need not accept the full role of the exception from Carl Schmitt to acknowledge that the struggle to withstand a brutal assault on civilians transcends all other issues. Ukrainian constitutional law recognizes the need for exceptional powers during a state of emergency, as does every other constitutional order whether expressly or tacitly. Necessarily, a war for survival shifts authority from parliament to the executive and many of the founding principles of democracy may be suspended during the emergency, even such defining features of democracy as popular selection of the government. Continue reading >>
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Constitutional Power Struggle in Brazil

On 20th April 2022, the Brazilian Supreme Court (STF) convicted Federal Deputy Daniel Lucio da Silveira to eight years and nine months imprisonment, based on his verbal attacks against the democratic rule of law, Supreme Court judges and other state institutions. The next day, President Bolsonaro issued a controversial decree granting pardon to the Deputy and ordering the immediate extinction of all the punishments imposed by the Supreme Court. Even though the constitutionality of the decree can be debated, the main discussion is a political, not a legal one. Continue reading >>
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Ukraine’s Parliament in Wartime

To defend Ukraine is to defend constitutional democracy and the rule of law. But the defence of Ukraine must occur through constitutional democracy and the rule of law. The Verkhovna Rada is a central institution in the Ukrainian constitutional order. The Verkhovna Rada’s legislative authority continues to exist during armed conflict and states of emergency. Indeed, the Verkhovna Rada plays a vital role in such situations. However, the routine operations of the Verkhovna Rada in these extraordinary circumstances have been very challenging.

Continue reading >>
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Constitutional Ping-Pong

Sri Lanka is at a moment of reckoning, with its political class, its public institutions and with its collective identity. The rupture caused by this unprecedented and tragic crisis has brought the country to a unique political moment in which the majority of Sri Lankans are demanding and imagining a better collective future. For the first time in Sri Lanka’s history, the demands for constitutional governance articulated through traditions of protest and dissent expressed mostly by marginalized groups are now being echoed by the mainstream. Continue reading >>
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Schengen Restored

On 26 April 2022, the Court of Justice of the EU rendered a ruling in joined cases C-368/20 and C-369/20 stating that Member States of the European Union can re-introduce border controls within the Schengen Zone only under strict conditions. The Court has stepped up as a guardian of the Treaties protecting free movement of people without controls at the internal borders of the EU. At the same time, it has left room for the European and national executives to exercise their function and fill in the blanks. Continue reading >>
04 Mai 2022

Kriegspartei oder nicht Kriegspartei? Das ist nicht die Frage

Die Fixierung der Debatte auf die Rechtsstellung als Kriegspartei führt in die Irre. Weder wird Deutschland durch Waffenlieferung und Ausbildung zur Kriegspartei, noch würde allein aus dem Status als Kriegspartei ein Recht zur Gewaltanwendung gegen Deutschland erwachsen. Es mag politische Gründe geben, der Ukraine in ihrer schwersten Stunde die nötige militärische Unterstützung seitens Deutschlands zu versagen – das Völkerrecht sollte hierfür jedoch nicht missbraucht werden. Continue reading >>
03 Mai 2022

Next Chapter, in a Larger Story

The Northern Ireland Assembly election is generating much speculation about the wider consequences. Beyond the usual implications of any vote in Northern Ireland, there is heightened interest in what it might mean for the debate on the constitutional future, as well as the ongoing and intense dialogue about the Ireland/Northern Ireland Protocol. There are sound reasons to view this election as historic, but it would be wise to place the projected outcome, if it unfolds, in context. Continue reading >>

A Male, White and Conservative Constitutional Judge

In February and March 2022, three new members have been appointed to the French Conseil constitutionnel. A closer look at the new composition shows that France’s constitutional court is composed of a majority of male, white, elitist graduates with a right-wing tilt, drawn from the ranks of politicians and civil servants. In a broader sense, it is actually a good portrait of the current French political system, which seems to resemble some kind of oligarchy. Continue reading >>

Democracy on Thin Ice

The notorious Elections Act 2022 culminated in an appropriately dramatic fashion this past week. Following two successful motions in the House of Lords that sought to tame the most controversial provisions of the Act – the voter ID measure and subjecting the Electoral Commission to greater executive oversight – the House of Commons was forced to directly confront the disputed and unpopular nature of these measures. Despite ongoing concerns and the Lords’ efforts to intervene, the Act will go into effect largely as originally drafted. Continue reading >>
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An Inappropriate Memorial Day

The Italian Parliament recently approved a statute that institutes a Memorial Day for the sacrifice of the Alpine Troops in the battle of 26th of January 1943, during WWII. The battle took place in Nikolajewka, a village which is now in Ukraine. This decision is confusing for a couple of reasons, and yet there has not been much of a public debate or opposition. A possible explanation is that this statute is part of the process of building up a ‘shared memory’ among political parties to legitimize the current political system. Continue reading >>
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02 Mai 2022
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Nicaragua’s OAS Raid and the Inter-American System

On 24 April 2022, Nicaraguan National Police officers raided the premises of the Organization of American States (OAS) in Managua. After confiscating all documents at the premises, Nicaragua’s foreign secretary called the OAS a “diabolic instrument” on live TV and announced Nicaragua’s immediate and definitive withdrawal from all OAS organs. The raid was a blatant violation of international law. Continue reading >>
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Trapped in a Lawless Zone

The treatment of asylum-seekers – predominantly from the Middle East – crossing the Latvian border from Belarus is in sharp contrast with the recent decision of the Latvian government to support at least 23,000 people who have arrived in the country from war-torn Ukraine. Those who have paid the highest price for this policy are people who have been forced to remain in the forest for months under inhuman conditions just to be ultimately returned to their country of origin, an experience that has left most of them severely traumatised. Continue reading >>
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29 April 2022

Meine Sache

Über Elon Musk, Twitter, den Verfassungsblog und mich Continue reading >>
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My Business

On Elon Musk, Twitter, Verfassungsblog and me Continue reading >>
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Bulgaria’s Failed Specialized Criminal Justice Experiment

On 14 April 2022 Bulgaria’s Parliament adopted legislative amendments, which finally put an end to the Specialized Criminal Court and its mirroring Specialized Prosecutor’s Office. Both institutions were set up during Boyko Borissov’s first term as Prime Minister in 2011 and severely undermined the rule of law in Bulgaria. The creation and development of these structures was encouraged and marked as progress by the European Commission, which calls into question the Commission’s ability to objectively monitor the rule of law in its Member States, to recognize threats, and to give adequate recommendations. Continue reading >>
28 April 2022

Reviving the Promise of Schengen

The EU Treaties are not shy when it comes to making grand promises. Take Article 3 (2) TEU for instance, which stipulates that the EU proffers an area ‘without internal frontiers’. While, technically speaking, borders continue to exist within the EU, it is true that they have become largely intangible inside the Schengen area. This may reasonably be viewed one of the greatest achievements of European integration. Solemnities aside, however, this promise has been called into question in recent years. Continue reading >>
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26 April 2022

The Court of Justice of the EU goes (almost) public

While the broadcasting of the delivery does not add much value (the texts are generally made available online at the time of their live reading in Luxembourg) to its declared goal of facilitating “the public’s access to its judicial activity”, that of the public hearings appears a major game-changer in the Court’s stance vis-à-vis the public-at-large. And that despite the many precautions accompanying the introduction of such a major rehaul of the Court’s publicity policy regarding its hearings, Continue reading >>

Keeping the Past and the Present Apart

The mere fact that a judge was appointed for the first time under undemocratic conditions does not automatically determine that the court in which that judge adjudicates lacks the necessary independence under EU law. The CJEU has answered to this effect a question of Mr. Kamil Zaradkiewicz, appointed to Poland's Supreme Court in 2018 on recommendation of the new government-controlled National Council of Judiciary and thus lacking independence himself. Importantly, the CJEU emphasized that the referring court did not submit any evidence that may rise legitimate and serious doubts, in the minds of individuals, over independence and impartiality of the particular judge. With this decision, the Court refused to be drawn into the inner-Polish dispute about decommunization, and reinforced its jurisprudence on judicial independence standards in the EU. Continue reading >>
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23 April 2022

Why ‘Partygate’ May Be the Beginning of the End

On 12 April, the UK Prime Minister, Boris Johnson, and Chancellor, Rishi Sunak, received fixed-penalty notices for breaching Covid regulations, regarding their attendance at a surprise birthday party for the Prime Minister in the Cabinet Room in 10 Downing Street on 19 June 2020. Both paid the fine. Both apologised. Neither resigned.  Continue reading >>
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22 April 2022

Instead of an editorial

What has happened over the holidays on Verfassungsblog Continue reading >>
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Anstelle eines Editorials

Was über die Feiertage auf dem Verfassungsblog los war Continue reading >>
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Elon Musk Wants to Buy Twitter to Create a Free Speech Utopia: Now What?

The enigmatic Tesla founder Elon Musk has made a public offer to buy 100% of Twitter’s shares at approximately 138% of each share’s value. In his letter of intention submitted to the U.S. Securities and Exchange Commission, Musk describes that free speech is necessary in a democratic society, and he wishes to unlock its full potential by bringing Twitter under (his) private ownership. Constitutionally this raises an interesting point: if indeed a billionaire wants to change the rules of speech on the ‘new public squares’ by acquiring a social media platform, can he – and should he be able to? Continue reading >>
21 April 2022
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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. Continue reading >>
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The legacy of the privacy versus security narrative in the ECtHR’s jurisprudence

The past two decades of counterterrorism strategy attest to the fact that the security/privacy trade-off approach is not only outdated, but that it also amounts to a gross oversimplification of the complexities involved in the modern culture of surveillance. Nevertheless, the ECtHR's acceptance of bulk interception regimes as measures that in principle fall within states’ discretion seems to be predicated on this outdated trade-off. Continue reading >>
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Das Vermächtnis der Erzählung von Privatsphäre versus Sicherheit in der Rechtsprechung des EGMR

Die vergangenen zwei Jahrzehnte der Terrorismusbekämpfungsstrategie zeigen, dass der Ansatz des 'Trade-Offs' zwischen Sicherheit und Privatsphäre nicht nur überholt ist, sondern auch eine grobe Vereinfachung der komplexen Zusammenhänge der modernen Überwachungskultur darstellt. Nichtsdestotrotz scheint die Akzeptanz des EGMR von Massenüberwachung auf diesem überholten Kompromiss zu beruhen. Continue reading >>
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20 April 2022

Germany, Russia and the „In Between“

A new national security strategy, as proposed by Foreign Minister Annalena Baerbock and as is the focus of this symposium, must also upend the basic features of Germany’s Ostpolitik. A Bucha Genuflection is not enough to achieve this – but it could be a good place to start. This blog post outlines the possible benchmarks, challenges, and potentials of a regional perspective in the context of the Ukraine crisis. For German foreign policy, this specifically means a change of perspective: Ostpolitik has to be more than just a policy concerning Russia. Continue reading >>
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Can Putin Be Tried in Poland?

The Polish Minister of Justice decided to initiate proceedings against Russia for its military attack on Ukraine and possible war crimes and crimes against humanity. This may come as a surprise, especially after the prosecutor at the ICC has already started to act in this matter. But the initiation of proceedings in Poland is mainly symbolic and won't conflict with international investigations. An EU Member State investigating specific individuals for their involvement in a war crime would be a powerful signal. At the same time, the scale and specificity of the crimes in question go beyond the possibilities of a single country and require extensive condemnation and the participation of the international community. Continue reading >>
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Russian Crown-Presidentialism

Many studying Russia have pointed to Vladimir Putin’s deliberate cultivation of charismatic authority through carefully staged photo ops and messaging campaigns. Yet, Putin’s power also draws on rational-legal authority. Putin draws his authority from detailed, constitutional rules that allow the president to dominate the Russian political system. The surprising importance of rational-legal authority in Putin’s Russia carries a number of important lessons for better understanding Russia and the role of constitutional rules in democratic governance. Continue reading >>
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13 April 2022

Neutrality and the Irish Constitution

Ireland, like other neutral states, has witnessed intense debates in recent weeks over the future of its neutral status. Ireland is not a member of NATO and has maintained an ambiguous status of ‘neutrality’ since independence. However, neutrality as such is not a constitutional requirement, and insofar as it obtains at all, has more the character of a policy or tradition. Departures from that tradition – particularly the joining of NATO – would nonetheless likely encounter certain constitutional barriers. In particular, it seems likely that membership of NATO would require a constitutional referendum. Continue reading >>

Peace and Security for Ukraine and Europe are not Created on the Drawing Board of the West

Viewing Ukraine as an object rather than a subject of negotiations is not an unfamiliar pattern of international security policy. It goes hand in hand with the dangerous tendency to turn Russia’s ‘Near Abroad’ ultimately into a ‘buffer zone’ even in Western political and academic discourses. This pattern has been at work in the course of the annexation of Crimea and the armed conflict in Donbas over the past eight years. Continue reading >>
12 April 2022

The Security-Oriented Turn in Energy Law

The full range of strategic aspects should be taken into account by the Federal Government in developing its „national defence strategy“. Robert Blackwill and Jennifer Harris have already described the strategic importance of economic policy and especially energy policy measures as „war by other means“. Accordingly, redefining security policy must not stop solely at the selection of new weapons systems. Rather, the German government faces the task of also realigning its energy policy with the changed strategic situation in accordance with the European energy policy. Continue reading >>
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A Bold Defence of Parliamentarism

At midnight on 10 April 2022, Pakistan’s National Assembly voted to pass a motion of no-confidence in Prime Minister Imran Khan, ousting his populist Pakistan Tehreek-e-Insaf (PTI) party from power three and a half years after its controversial election. The civilian government went to great lengths to stay in power, using allies in nominally impartial state offices to unconstitutionally dismiss the no-confidence motion and call snap elections. This attempt, however, failed - largely due to the country’s Supreme Court, which in a ruling on 7 April 2022 intervened decisively to protect the National Assembly from dissolution and order the vote to go ahead. Continue reading >>
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Anything Goes?

Last month, the ECtHR ruled in the case of Johansen v. Denmark on the deprivation of nationality and expulsion for terrorist offenses. It rejected the applicant’s complaint of an infringement of Art. 8 ECHR. The decision underlines the Court’s reluctance to engage with issues raised by deprivations of nationality in terrorism cases. Instead of setting out clear limits on such measures based on the rights guaranteed by the Convention, the Court does not seem to be willing to interfere with measures related to national security, no matter how drastic the consequences for the individual. Continue reading >>
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Electronic Surveillance in a Time of Democratic Crisis

The Polish experience demonstrates how a determined populist government, using the tools available in a democracy, can in a relatively short space of time erode legal safeguards established to control state surveillance activity. The understandable secrecy surrounding the work of the security services must not create an opportunity for the abuse of powers. Surveillance without adequate control weakens democracy, leads to a distortion of its principles, and ultimately, as the ECtHR has warned, threatens its very existence. Continue reading >>
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11 April 2022
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How to Overcome an Anti-democratic Heritage

Chile and Turkey appear to be more similar than one would initially imagine. In both countries, neoliberal policies were implemented through constitutions made under the shadow of military dictatorships. For the last half-century, the development of democratic culture in both countries was undermined by military coups and military governments using anti-democratic methods. However, in late 2019, Chile has taken off from its old path to become a more democratic state that rests on social justice and gender equality by generating a new constitution through intense popular participation and equal political representation. Continue reading >>
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Function creep, altered affordances, and safeguard rollbacks

Alongside the expansion of surveillance regimes, there is a parallel development of equal importance, through what could be described as safeguard rollbacks. These are different from surveillance creep, in that the aim and purpose of surveillance mandates remains largely the same, but the associated safeguards are gradually weakened. These rollbacks have generally taken place where mandates were initially put in place with strict limits to ensure proportionality and legal certainty, but where the effectiveness of those mandates are later argued to be limited due to the safeguards themselves. Continue reading >>
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10 April 2022

From Shrinking to Closing Civil Society Space in Hungary

In a classy late Friday dump, on April 8, 2022, the National Election Commission fined over a dozen Hungarian civil society organizations for illegally interfering with the referendum held on election day (April 3, 2022). These NGOs ran a month-long campaign encouraging voters to cast invalid votes in response to the government’s referendum question. Altogether the fines add up to 24.000 EUR: the leaders of the campaign, Háttér Society for LGBTQI rights and Amnesty International Hungary were fined approx. 8.000 EUR each. The NEC found that encouraging voters to cast invalid ballots amounts to an abuse of rights, as it defeats the purpose of exercising popular sovereignty through a popular referendum. Continue reading >>
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09 April 2022

“A Voice Crying in the Wilderness”

This post will reveal the history of Ukraine's continuing warning to Europe, and in particular to German authorities about the security dangers of the violent Russian regime and politics. It will demonstrate how the ignorant and weak reaction of German politics to these threats (given the prevalence of economic interests over security and European values) indirectly supported the Russian invasion of Ukraine, and how the Russian regime abused European languidness and neutrality to launch a large-scale war in Europe. This blogpost is not so much about condemning the mistakes of European politicians, but about suggesting ways to solve these problems, taking into account the experience with obvious mistakes. Continue reading >>
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Justice Thomas Will Not Recuse. But Should He?

There is a growing elite and scholarly consensus (at least on the American left) that Justice Clarence Thomas “must immediately recuse himself from any cases relating to the 2020 election and its aftermath.” The demand is extraordinary, and as such, it has captured global attention. The dispute highlights some notable things about the Court, but it is the scandal that really captures attention. So far, calls for recusal have come almost exclusively from the left. Conservatives have dismissed the idea. What to make of it all? Continue reading >>
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08 April 2022

Wir im Krieg

Es muss unser Ziel bleiben, sagt der Bundeskanzler, dass Russland diesen Krieg nicht gewinnt. Continue reading >>

We at War

It must remain our goal, says the Federal Chancellor, that Russia does not win this war. Continue reading >>
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Getting on the Wrong Side of Constitutionalism

The Chilean new constitution will be voted on a general plebiscite on September 4, 2022. While a few months ago the plebiscite might have looked like a formality, the approval rates for the Constitutional Convention and what is known of the proposed text so far have been dropping for some time now. According to recent polls, the rejection of the new text is becoming more and more likely, putting the constituent process under even more pressure. Continue reading >>
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A National Peace and Security Strategy after the “Turning Point”

Military armament has been happening not just since the so-called “turning point”. Ultimately, a better equipped Bundeswehr alone cannot lead to sustainable peace. The concept of human security and a national security strategy raised by the Foreign Minister must not be based on a purely militarised concept of security. The Federal Government ought to align its actions accordingly. Continue reading >>
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Hungary’s Lesson for Europe

There seems to be a disturbing discordance in the European Commission’s response to the Hungarian elections. On the one hand, the Commission triggers the rule of law mechanism. On the other, it refuses to comment on the fairness of the Hungarian elections. This contradicts the fact that, just like the rule of law, democracy is also part of  Europe’s constitutional identity. But what does democracy require from Member States? Hungary’s elections make clear that the value of democracy, as given expression in Article 10 TEU, should be justiciable. Continue reading >>
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Something Wicked This Way Comes

One crisis after another has been offered as a justification for the establishment of a comprehensive surveillance apparatus throughout the past 20 years, while third country nationals were gradually stripped of their rights to privacy and data protection, transforming the movement of innocent individuals into suspicious, potentially terrorist activities. Among the most significant changes in information management in the area of freedom, security and justice, interoperability – the ability of information systems to exchange data – will have the most profound effects on the right to data protection and as such marks the “point of no return”. Continue reading >>
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07 April 2022

The Blame for Defeat and the Morality of Politics

The increased support of Fidesz by the majority of voters, who casted votes on 3 April despite Orbán’s immoral stance towards Putin’s war, and also these voters’ little appreciation of freedom and almost none for limiting power, raises the question whether, besides the autocrat, the opposition, and the elite, we cannot blame also the ‘people’ for the opposition’s defeat and Fidesz’s victory. Continue reading >>
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The Development of Surveillance Technology in India

India has overhauled its surveillance architecture in a manner which calls into question the separation of powers and accountability mechanisms for the government. The Executive, through orders, has put into place invasive systems which do not have provisions for judicial review or oversight. This absence of oversight raises concerns about potential illegal mass surveillance, as well as the constitutionality of these systems itself. Continue reading >>
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06 April 2022
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Evasive, Insensitive, Ignorant, and Political

Czech law stipulates that a trans person who seeks gender reassignment must undergo surgery “while simultaneously disabling the reproductive function and transforming the genitalia.” Although a majority of judges of the Czech Constitutional Court agreed that this requirement is clearly unconstitutional, the provision has nevertheless withstood constitutional scrutiny and remains part of the Czech legal order. Continue reading >>
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Arming for Peace

The German chancellor’s speech on February 27, 2022, stating that changed times also demand changed policies, has been readily interpreted as a plea for a primarily military-focused policy aimed at deterrence, which may now finally once again be oriented towards political realities. It is almost breathtaking how, in a very short time, entire traditions of thought are nominally being laid to rest in this debate, without any critical questioning of whether this is justified: Does the war in Ukraine really demonstrate that diplomacy or the approach of interdependence have failed? How wise can a policy be that simply wants to reverse past policy by means of a „turning point“? Continue reading >>
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Why They Win

It is difficult for us to acknowledge that populist illiberalism is successful and, until it is confronted by a serious economic crisis, cannot be replaced by elections. That, however, seems to be the case, at least in a society where there is little appreciation for freedom and almost none for limiting power. Let us at least be honest with ourselves: such electoral victories can hardly be explained by anything else. Continue reading >>
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Public Surveillance before the European Courts

Europe has experienced a significant expansion of state surveillance and counter-terrorism regimes, which demonstrate the increasing appetite of legislators and the executive for the normalisation of surveillance. For long, European Courts offered a powerful pushback against this trend and produced several celebrated victories for fundamental rights over surveillance. However, recent decisions by the CJEU and the ECtHR reveal a different picture, indicating a broader paradigm shift. Continue reading >>
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Enlarging the Hole in the Fence of Migrants’ Rights

With the judgment in A.A. and others v. North Macedonia, the European Court of Human Rights further branches out the creative exception to the prohibition of collective expulsions and turns it into an obligation to offer a place to apply for asylum somewhere at the border. But not only are these legal access points for asylum applications often de facto restricted, the ever more creative exceptions to rights of the Convention and its Protocols threatens the credibility and authority of the Court. Continue reading >>
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05 April 2022
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On the Internet, No One Knows You’re a Cop

As long as police can continue to exploit the legal fiction of user “consent” to access our private communications, our privacy rights will remain just as fictional. While we’re hopeful that the courts will one-day strike this practice down as violating the Fourth Amendment, more urgent statutory protections are needed. The legislation needn’t be lengthy or complex, it’s not a nuanced question. To the contrary, what we need is a complete and categorical ban on the use of fake accounts by police, letting those who’ve been surveilled sue, and suppressing the evidence that’s obtained at trial. Continue reading >>
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A Backdoor Exit from the European Convention on Human Rights

Russia left the Council of Europe on 16 March 2022. The European Court of Human Rights declared that Russia will remain a Party to the Convention until 16 September 2022. This resolution is inconsistent with applicable termination rules. But even beyond technicalities, it reveals fundamental defects in the design of the ECHR denunciation clause. Forced withdrawal and expulsion from the Council, as mechanisms to sanction severe violations of human rights, should not have the effect of relieving the delinquent State of its conventional human rights obligations. Continue reading >>
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04 April 2022

Why We Lost

The united opposition in Hungary has suffered a crushing defeat at the parliamentary elections yesterday. Some of my friends and acquaintances will blame for the outcome the new electoral rules produced by Viktor Orbán’s government, and his high degree of control over electronic and printed media. They will be wrong, as they often were before. We lost! And by numbers that completely falsify the electoral rule thesis, that suggested in all its versions that the rules give Fidesz 3-5 % advantage. Continue reading >>

The Council of Europe as an AI Standard Setter

On 4 April 2022, Member States of the Council of Europe commences negotiations on the world’s first international binding legal instrument in the field of artificial intelligence. The CoE has a large reservoir of both experience and expertise in the field of standard setting, as far as the three key priorities are concerned: promoting human rights, democracy, and the rule of law. Given the undisputed need for regulating AI activities, the CoE appears a prime candidate for this undertaking. Continue reading >>
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Kontinuität womit? Alternativlos wozu?

Review Essay
Die Behördenforschung ist etwas in die Jahre gekommen. Vielleicht hat sie sogar ihren Zenit überschritten und wir müssen über neue, innovative(re) Formate nachdenken. Ist der ersten Untersuchung zur NS-Vergangenheit des Auswärtigen Amts noch sehr viel Aufmerksamkeit zuteilgeworden, haben spätere Untersuchungen, auch die zur Rosenburg, dem damaligen Sitz des Bundesjustizministeriums, weit weniger Aufmerksamkeit erfahren.
Continue reading >>

Brain-Dead Debt Brake

The debt brake is brain-dead—pull the plug. Germany’s financial super-ego fails to protect the democratic self-governance of future generations. Instead, it shackles us and our decendents to a small-c conservative agenda animated by yesterday’s economic orthodoxy. Continue reading >>

Hong Kong Surveillance Law

though 9/11 did not immediately result in a dramatic expansion of the surveillance state in Hong Kong as was often seen in the west, twenty years later a similar process is now well underway. Though Hong Kong’s surveillance and privacy laws have long been relatively deferential to the needs of law enforcement, the dramatic legal changes occasioned by the introduction of a new ‘national security law’ in 2020 suggest that the population will be under increasing forms of surveillance in the coming years. Continue reading >>
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03 April 2022

Rule of Law, AI, and “the Individual”

The institutional safeguards formulated under the Rule of Law tend to focus on “an individual” or “the individual” who can be the bearer of the rights and protections it awards. This pre-digital formulation worked well in an era where law was the pre-eminent form of social regulation. However, increasingly, individual interests are impacted not only on the basis of the actions and choices of the concerned individual, but also on the basis of data collected about her social context and that of other similarly situated individuals. In order to reconcile these tensions, in this blog, I argue for supplementing the existing individual protections recognized under the Rule of Law framework with recognition of collective interests in order to strengthen the Rule of Law in the age of AI. Continue reading >>
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02 April 2022

International Legal Order as a National Security Interest

The "Zeitenwende" of 27 February 2022 is, in effect, an admission of a gap between long-recognised interests in multilateralism and international law, on the one hand, and the sufficiency of foreign and defence policy strategies for upholding them on the other. A primary commitment to the modes of multilateralism and underlying legal obligations is no longer sufficient—if indeed it ever was—and Germany’s forthcoming National Security Strategy must address the more arduous political and military obligations necessary to make such a system possible. The turning point is, in short, the realisation of commitments deeply embedded in national foreign policy identity, which emerges as the foundation for broad legitimacy in the policy revolution. Continue reading >>
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The Paradox of Efficiency: Frictions Between Law and Algorithms

On the 13th of January 2022, a Spanish Administrative court ruled in favour of algorithmic opacity. Fundación Civio, an independent foundation that monitors and accounts public authorities, reported that an algorithm used by the government was committing errors. BOSCO, the name of the application which contained the algorithm, was implemented by the Spanish public administration to more efficiently identify citizens eligible for grants to pay electricity bills. Meanwhile, Civio designed a web app to inform citizens whether they would be entitled for this grant. Continue reading >>
01 April 2022

Die öffentliche Sache

Steuern und staatsbürgerliche Gleichheit Continue reading >>
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The Public Thing

Taxes and civic equality Continue reading >>
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A Constitutional Framework for Bundeswehr Operations Abroad Based on International Law

The postulated „Zeitenwende“ should not be understood simply as a historic opportunity to quickly pass the proposed reform in parliament. Even beyond the specific occasion of the Russian attack on Ukraine, the substance of the constitutional provisions on defence appears to be in need of reform. According to the opinion expressed here, the Basic Law should tie Bundeswehr missions abroad to their compliance with international law. Continue reading >>
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Letters from Brussels with Love and the Issue of Mutual Trust in Nationality Matters

In a recent article on this blog, I have set out that the spotlight will soon be turning on the European passportization of Russian oligarchs. And well, what shall I say, it did not take long for the Commission to come out swinging. In a recommendation issued on March 28, the Commission urged “Member States to immediately repeal any existing investor citizenship schemes and to ensure strong checks are in place to address the risks posed by investor residence schemes”. Continue reading >>
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Thoughts on the Black Box: Getting to Cooperative Intelligence in Public Administration

The requirement of explanation for administrative decisions can be found, in one guise or another, in most legal systems. This requirement is a positive obligation on decision-makers in public administrative bodies (among others) to provide the legal basis for their decision. With the continuing growth of artificial intelligence/machine learning technologies being used to streamline administrative decision-making, providing for a right to explanation from black box algorithmic decision-making systems is not a straightforward endeavor. Continue reading >>
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High Tech, Low Fidelity? Statistical Legal Tech and the Rule of Law

The advent of statistical ‘legal tech’ raises questions about the future of law and legal practice. While it has always been the case that technologies have mediated the concept, practice, and texture of law, a qualitative and quantitative shift is taking place. Statistical legal tech is being integrated into mainstream legal practice, particularly that of litigators. These applications mediate how practicing lawyers interact with the legal system. By shaping how law is ‘done’, the applications ultimately come to shape what law is. Continue reading >>
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31 März 2022

Global Inequities in Algorithms

Algorithms can seem like esoteric subjects, often relegated to the realm of engineers and technology companies, given the technical nature of algorithmic design. Algorithms, when applied, take on a social character that invites us into peer beneath the hood to understand both their function and application. Given the growing ubiquitousness of algorithms in our daily lives, policymakers are looking to capture algorithms within regulatory mechanisms. This article seeks to understand the inequalities that undergird algorithmic applications, in order to understand how to regulate these systems. Continue reading >>
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Russia’s Eurasian Großraum and its Consequences

The available options for the German and Western policy towards Russia have to be based on  the correct diagnosis of the causes of the conflict. The purpose of this analysis is to shed some light on the structural reasons for the Russian expansionism and make some projections on the possible long-tern consequences. The rivalry between the Russian-dominated space (Großraum – greater space) and the EU/NATO systems fuels an intense geopolitical antagonism in Europe, which can be transformed into actual conflict. I understand the Großraum in the sense of Carl Schmitt as a tightly managed sphere of interests, under the direct or indirect control of an authoritarian Great Power (infra II).

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Securitisation and Solidarity in Singapore after 9-11

The Singaporean government adopts a proactive, holistic approach in seeking to preserve national security, unity and solidarity through rehabilitation, emphasising the responsibilities of all citizen to be vigilant and to actively preserve racial and religious harmony through social interaction and building relationships, as part of the communitarian compact. Remaining a united people would thwart the terrorist goal of driving a sharp wedge between ‘us’ and ‘them.’ Continue reading >>
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Regulating News Recommender Systems in Light of the Rule of Law

Many online services - search, e-commerce, movie streaming, social media, and news - use recommender systems. I argue that it is largely unnecessary and, in any case, contrary to the rule of law to regulate how news media deploy recommender systems to select and rank the news for individual users. Instead, I consider an alternative for state regulation of news recommenders, should empirical research show that certain news recommender systems have harmful effects on individual rights and societies. Continue reading >>
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30 März 2022

Artificial Intelligence, Human Flourishing and the Rule of Law

One function of the rule of law is the promotion of human flourishing, often represented by the term ‘autonomy’. However, the ability to rely on the rule of law as a tool for counteracting AI’s constricting effect on human flourishing is being negated as the composition and design AI systems flout the ideals that the rule of law demand as necessary for a certain type of society. Continue reading >>
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Does the Threat of Terrorism Justify Migration Restrictions?

Barring migrants for the sake of achieving marginal reductions of already very low risks of terrorism might be justified if restrictions imposed few or no morally significant costs. But, in fact, barring migrants fleeing oppression and war is a grave wrong. It inflicts enormous harm, violates human rights against unjust discrimination, and is also inimical to concepts of dignity prominent in modern European and international law jurisprudence. Continue reading >>
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The National Security Strategy and the Zeitenwende in German Foreign Policy

The “Zeitenwende” in German foreign policy continues to require justification and facilitation, strategic and material underpinning, as well as structural and procedural changes. But time and again, it will require critical reflection. After years of partial denial of reality and misinterpretation of behavioural patterns of key international actors, there is a risk that everything will now be pressed into the scheme of great power and systemic rivalry, and that a new bipolarity between the Western world and the authoritarian states centred around China and Russia is conjured.

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Proactive Contestation of AI Decision-making

Liberal democracies have an artificial intelligence problem. The disruptive impact and complex harms of artificial intelligence (AI) decision-making, including their intrusive surveillance, unjustifiable biases, and deceptive manipulations matter in all societies, but they matter more in open, pluralist democracies, which depend on messy human accountability processes. AI decision-making systems are notoriously resistant to demands for external scrutiny. Continue reading >>
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29 März 2022

If you are Europe, what is your Story in 2022?

The war in Ukraine confronts Europe with the question about the very raison d’être of integration. The courage and the resistance of the Ukrainians have bought us citizens of the European Union precious time to rethink who we are, what is dear to us and how we understand our ideals and values. Continue reading >>

Two Heads, One Crisis

The President of the Chamber of Deputies has just authorized the creation of a working group to discuss the possibility of adopting a semi-presidential system of government in Brazil. With the successive political crises since the promulgation of the constitution culminating in two successful impeachments, a growing number of voices are expressing support for the adoption of a semi-presidential system. It is unlikely, however, that such reform will bring political stability by itself. Continue reading >>

Algorithm Centrism in the DSA’s Regulation of Recommender Systems

The regulation of recommender systems is often framed as an issue of algorithmic governance. In this post I want to argue that this focus on recommender algorithms can be restrictive, and to show how one can go about regulating recommender systems in a broader sense. This systemic view pays closer attention to recommendation outputs (i.e. recommendations) and inputs (i.e. user behavior), and not just processing logics. Continue reading >>
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Regulating Recommending: Legal and Policy Directions for Governing Platforms

Digital platforms have strategically positioned themselves as intermediaries between individuals, businesses, organisations, governments, and others. Platform companies frequently adopt business models based around extensively tracking user behaviour and using that information to supply targeted advertising, algorithmically personalise services, and grow user engagement, revenue, and market position. While platform capitalism can be immensely profitable, the problems this brings are increasingly stark. As we have argued elsewhere, it’s time to regulate recommending. Continue reading >>
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28 März 2022

Is Berlin’s Overdue Defence Policy Adjustment Also a “Game Changer” for Franco-German Relations?

What does the “paradigm shift” (Zeitenwende) – as Chancellor Olaf Scholz called the readjustment of German security and defence policy – mean for the Franco-German couple? Relations between Paris and Berlin had cooled down in recent years, particularly in relation to security and defence dossiers. Can we now expect that the ice between the two countries will melt? By no means. Even though Germany has sent a first signal that it no longer wants to close its eyes to the geopolitical realities of the 21st century, a number of touchy security and defence issues remain on the table. Continue reading >>
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Our Minds, Monitored and Manipulated

Well-functioning democracies require a well-informed citizenry, an open social and political discourse and absence of opaque or deceitful influence. Western democracies have however always been prone to power asymmetries and to coercion and the curbing of these freedoms through oppression and propaganda. Adoption of AI and datafication has raised concerns whether society is sliding into an Orwellian nightmare, where all of our actions are being scrutinized, controlled and manipulated at a scale that has never been possible before. So, what is it exactly that makes this time so different? Continue reading >>
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A Strategic Culture Must be Part of the National Security Strategy

The handling and development of the war in Ukraine will be a test of the effectiveness of  Germany's role in the EU and the world. The most important part of the turning point must be a return to Realpolitik and the development of a national security strategy based on smart power. The turning point in Germany concerns four areas in particular: 1) German armed forces (Bundeswehr) 2) strategic culture 3) National Security Strategy 4) strengthening crisis prevention and the development of a "civilian reserve". Continue reading >>
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Artificial Intelligence Must Be Used According to the Law, or Not at All

Democracy requires to strengthen the Rule of Law wherever public or private actors use algorithmic systems. The law must set out the requirements on AI necessary in a democratic society and organize appropriate accountability and oversight. To this end, the European Commission made several legislative proposals. In addition to the discussion on how to use algorithmic systems lawfully, the question when it is beneficial to use them deserves more attention. Continue reading >>
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How Emmanuel Macron’s Quest for Efficiency Undermines French Democracy

Emmanuel Macron presented his program for the next presidential election on Thursday, March 17. He plans to relaunch his major reform of the institutions to make them work more efficiently and reaffirmed his desire to have a “strong executive power”, that is, a President who is not encumbered by too many counterweights. This concern for efficiency is a clear sign of impatience with the democratic process. By letting the executive power decide alone, the whole balance of powers could be affected. Continue reading >>
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The Rule of Law versus the Rule of the Algorithm

When we chose the title of this symposium, we thought it might be controversial. We expected that at least some of the authors would argue that algorithmic threats to the rule of law were solvable, or that responsibly-implemented algorithms could even help the delivery of justice. None of the experts did. In the series of articles which we will present to you in the next days, we find no techno-optimism. That should give everybody pause - especially to the advocates in favour of algorithmic solutions for every problem. Continue reading >>
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27 März 2022

Ukraine, Realism, and the Synchronization of Political Time in the US and Germany

What the US and Germany face today with Russia is evidently not a peaceful competition of rivals that can be managed by the pursuit of equilbrium and balance, the leitmotifs of 19th century Realpolitik. Nor is the Russian invasion a result of Western failure to heed realist caution about the project of NATO enlargement in Eastern Europe.

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26 März 2022
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‘Don’t Look Up’, Look ‘South’

There is no doubt: climate law is about to become one of the most important issues in comparative constitutional and international law. The institutional and legal questions are tricky, the number of cases exploding, and, more importantly: the stakes are high. On the very day we kicked off this blog debate the world was hit by the news of an “impossible” and “unthinkable” temperature surge in the Arctic and Antarctic, with climate journalists stating in shock that “Antarctic climatology has been rewritten”. On the day this blog debate concluded we learned of an “unprecedented sixth mass coral bleaching event” in the Great Barrier Reef, with scientists demanding immediate action yet again. Continue reading >>
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Distrust – Trust – Recognition

Could it be that even Russia’s current political leadership is in truth not necessarily interested in conquering the land and people of Ukraine, but in proving Russia’s great power status? If so, the classification as a „regional power“ would be a violation of Russian self-esteem and status consciousness, for the healing of which Russia is starting a war that is contrary to international law, morally reprehensible, economically absurd and cruel, and devoid of any pragmatic rational explanation. Continue reading >>
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25 März 2022

Der Blick auf uns

Deutsche Scham und ukrainische Rechnungen Continue reading >>

The Gaze Upon Us

German shame and Ukrainian claims Continue reading >>
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Brazilian Judicial Branch v. Telegram (and Bolsonaro)

On March 18, 2022, the Brazilian Federal Supreme Court Justice Alexandre de Moraes suspended Telegram’s functioning in Brazil through an individual injunction. In brief, the platform was blocked because its owners ignored their duty to cooperate with the Brazilian state in the repression of the illicit activities committed over the platform. However, only analyzing the issue’s core misses one of its essential surrounding elements: the direct interest of President Jair Bolsonaro in the free operation of the platform and the growing antagonism between him and Justice Alexandre de Moraes. Continue reading >>
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Indigenous Climate Litigation in Anglophone Settler-Colonial States

The legacy of colonialism suggests a shared affinity between climate litigation in the Global South, and climate litigation brought by Indigenous peoples in the settler-colonial states of the Global North. This blog post focuses on claims brought by Indigenous peoples in the Anglophone settler-colonial states of Australia, Canada, the United States and Aotearoa/New Zealand. I begin by setting out the disproportionate impact of climate change experienced by Indigenous peoples, as well as Indigenous movements of resistance and adaptation. In doing so, I draw on claims brought by various Indigenous groups and individuals in the course of climate litigation. Framing climate litigation as part of this response, I then survey Indigenous climate litigation across the four jurisdictions. I end with some notes of caution regarding the essentializing and exploitation of Indigenous peoples by the climate litigation movement, cautions which may be applicable to litigation in the Global South. Continue reading >>
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The Council of Europe’s Sharp Turn

The Council of Europe (CoE) responded promptly to Russia’s act of aggression against Ukraine first by suspending Russia’s representation rights on 25 February 2022, and then by expelling it on 16 March 2022 in accordance with Article 8 of the Statute. The Committee of Ministers used the Article 8 procedure for the first time in the history of the CoE. This might have crucial implications for the broader CoE context and could make the threat of suspension and expulsion more credible for other member states as well. Continue reading >>
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Lessons on “Adaptation Litigation” from the Global South

Adaptation litigation is not only a tool to better prepare infrastructure through tort and administrative law. It is a more ambiguous and creative category, drawing on everything from refugee law to human rights and legal provisions recognizing the rights of nature. While adaptation litigation in the Global North has largely focused on infrastructure, litigation in the Global South has addressed a broader range of factors that contribute to adaptive capacity, from environmental factors like deforestation, to human governance and resourcing systems like disaster response and migration systems. Continue reading >>
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The Dangers of Freezing and Seizing

The Polish government argues that the only way to effectively seize the assets of Russian oligarchs is to amend the Polish Constitution, since it is currently impossible to do so without obtaining a final judgment of a court of law. Although the official goal may seem to coincide with the actions undertaken by the EU Council, the measures planned by the Polish governing powers should not be accepted without a second glance at their possible legal dangers.  Continue reading >>
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24 März 2022

Climate Law as a ‘Living Tree’

Last year, the Australian decision of a Federal Court judge in Sharma v Minister for the Environment made headlines around the world. In the decision, the judge found that the Federal Environment Minister owed Australian children a duty of care to prevent harm from climate change. This year, the Sharma case has once again attracted attention, albeit for the opposite reason. In March 2022, the Full Court of the Federal Court allowed the Minister’s appeal and overturned the primary judge’s finding of a novel duty of care. This decision has emphasised the limits of legal concepts and courts in addressing future climate damages. However, the unfavourable outcome does not mark the end for climate litigation in Australia. Continue reading >>
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As the Lungs of the Earth Dry Out, Climate Litigation Heats Up

The Amazon Forest – el pulmón del mundo – has been at the center of four recent rights-based climate lawsuits in the region. Interestingly, the existence of solid legal grounds for environmental litigation has not stopped petitioners and courts from using some degree of creativity in shaping new rights. I argue that any evaluation of the potential benefits and impacts of (new) rights strategies must consider their limitations in setting clear legal boundaries and achieving immediate political change. Nonetheless, rights-based climate lawsuits play an important symbolic role, as they recognize the vulnerability of certain groups to climate change. Continue reading >>
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No Kidding!

The strategy of challenging a plurality of states directly before international adjudicating bodies has been, so far, a youth’s distinct move in the field of climate litigation, and it is by far the largest vehicle for transnational complaints. Our contribution provides an overview of the relevant cases, many of which still pending, and tries to pinpoint the drivers and possible trajectories of a global phenomenon which could go some way towards redressing the injustice the Global South is suffering as a result of global warming. Continue reading >>
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23 März 2022
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How Canada Capitalizes on Ukrainian Refugees

For those fleeing the war in Ukraine, Canada launched a new temporary residence pathway, the Canada-Ukraine Authorization for Emergency Travel (CUAET) program on March 17, 2022. Offered in conjunction with a special family reunification program, CUAET is open to an unlimited number of Ukrainians regardless of their existing ties to Canada. While seemingly an open and benevolent gesture, Ukrainians are welcomed inside the Canadian nation not as humanitarian subjects but primarily as workers to potentially contribute to the Canadian economy. Continue reading >>

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. Continue reading >>
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Protecting Whose Children?

One year ago, the First Senate of the German Federal Constitutional Court (GFCC) has issued a landmark decision on the rights of future generations and their (legal) entitlement to solidarity. This blog post compares this decision to the 2018 ruling of the Colombian Supreme Court (CS) that was also concerned with the rights of future generations. I argue that while the idea of solidarity with people threatened by climate change is central to both judgments, the courts have taken very different approaches to whom this solidarity extends to. Continue reading >>
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The Third Caesura in German Security Policy

The sudden announcement of a „special fund“ for the, admittedly, lagging overhaul of the German armed forces, and the permanent increase in the defense budget (the „2 percent“ target of the NATO agreements of 2002) should be understood for what they are – a grasping for the emergency brake and not an „arms race.“ Continue reading >>
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Legal Safeguards for the Volunteers of Ukraine’s Cyber Militia

What is the legal status of foreigners who enlist in Ukraine’s volunteer cyber militia? The Putin regime’s brutal invasion of Ukraine means that getting clarity on this question is a matter of urgency. However, more broadly, this is a question that will remain important for future conflicts if we do not properly engage with it now. Continue reading >>
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Passportization

Putin’s alleged arguments to conduct a “special military operation” to “demilitarise and denazify” Ukraine revolve around protecting the people of the Donbas, including citizens of the Russian Federation, “facing humiliation and genocide.” One of the tools Russia used to justify its political and military engagement in the post-Soviet space has been passportization. This policy effectively created Russian citizens in the contested territories of neighbouring states in the context of protracted conflicts of secession. Just as in Georgia, passportization worked as a tool of interference with Ukrainian sovereignty. Continue reading >>

Transformative Constitutionalism and Climate Litigation

I argue that courts can locate the transformative potential of law not only through the explicit text of a constitution (although that is one of the main drivers), but also through extra constitutional drivers such as international law. In doing so, courts are able to challenge pre-existing structures of tradition, legality and culture. I will demonstrate this through a brief analysis of key climate cases from both the Global North and the Global South, namely from the Netherlands, Pakistan, Colombia, and Germany. In addition, I also aim to show that considerations usually associated with TC can emerge in both Global North and South contexts. Continue reading >>
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22 März 2022
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A Climate Warrior for the Global South

This review of climate cases in the Global South reflects the potential of the right to a healthy environment in climate justice. Countries in the Latin American region are already leading the fight against climate change through successful judicial battles, relying on the established right to a healthy environment. Continue reading >>
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“Juridified” Control

I argue that there should be a greater separation of powers with regard to foreign deployments than has been the case to date. In addition to the actors who have so far been primarily involved in decisions on foreign deployments – the German Federal Government and Bundestag – the German Federal Constitutional Court should also be given a clearer basis of responsibility for clarifying constitutional issues that have arisen. In this way, the constitutional framework can be made more concrete and strengthened in the long term. Continue reading >>
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Der Gesetzgeber als letzte Hoffnung für Lockdown-Betroffene

Der Bundesgerichtshof wies am 17. März sämtliche Ansprüche auf staatliche Entschädigung für Einnahmeausfälle während Betriebsschließungen in der ersten Pandemie-Welle im März 2020 zurück. Ohne die Details der schriftlichen Urteilsbegründung abwarten zu müssen, steht eines bereits fest: Hilfeleistungen für von einer Pandemie schwer getroffene Wirtschaftsbereiche sind keine Aufgabe der Staatshaftung, sondern dem Gesetzgeber überlassen. Er ist nun die letzte Hoffnung der Betroffenen auf eine finanzielle Kompensation, gegebenenfalls auch nur als Wirtschaftshilfe. Continue reading >>
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The Right to Health in Climate Change Litigation

As rights-based climate litigation continues to proliferate as a means to tackle perceived deficiencies in climate governance and regulation, new opportunities emerge for claimants and courts to acknowledge the inextricable link between climate change, inequalities, and health. Crucially, by ensuring the protection, respect, and fulfillment of all the normative components of the right to health of poor and socially marginalized persons and groups, courts can help overcome the Executive and Legislative branches’ failures to address climate change in contexts of high social and health inequalities. Continue reading >>
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On Finland with Love

This contribution briefly unpacks the relevancy of the East/West intersectionality Finland represents for us today. The pragmatic manner in which the Finns have dealt with Russia – in all its previous versions, white, red or “federal” – is instructive in understanding the limits of moral, economic and physical power when facing a neighboring country that will most probably never be trusted, loved or changed, by outsiders. Continue reading >>
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What the ECtHR Could Learn from Courts in the Global South 

Climate change is increasingly recognized as an issue of justice. In response to climate injustice, climate litigation in domestic and regional tribunals – pursued primarily by non-state actors such as non-governmental organisations and youth movements – has emerged as a global phenomenon. In this article, we explore two potential lessons for the European Court of Human Rights (ECtHR) when adjudicating climate cases. These lessons arise from the expansive understanding of standing under South Africa’s transformative constitutional regime, and the recognition of extraterritorial jurisdiction in the Inter-American System of Human Rights (IASHR). Continue reading >>
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21 März 2022

Are We in for a New Wave of Investment Arbitrations?

In response to the sanctions imposed on Russia, the country has doubled-down and announced a set of retaliatory measures affecting investors from ‘unfriendly’ countries. The scale of potential losses foreign investors face in Russia is probably the largest since the aftermath of the revolution in 1917, which saw mass nationalization and Russia’s default on the foreign debt. However, the legal landscape protecting foreign investors has significantly changed since 1918. Consequently, they have much better legal options today for redressing their financial losses. Continue reading >>
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Take Down the Wall. And Make Russia Pay for It

EU law allows admitting Ukraine into the Union immediately. This is not only the moral imperative, it would also not require any Treaty revision and mark a return to the classical approach of the first EU accession: accession first, full taking on of the acquis later, with lengthy transitional periods. Ukraine will also require a super Marshall plan to ensure speedy reconstruction. This is doable: the seized – say confiscated – “Russian” money, a bit short of a trillion by now, will be enough, with the EU hopefully topping this amount. Continue reading >>
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