01 March 2024

Half Time

Six months from today, the people in the German state of Thuringia will elect their new parliament. Election day is looming large, and the political situation is heating up. Recently, the organisation Ezra has noted a rising frequency of incidents involving right-wing extremist violence: in Waltershausen, unknown persons set fire to the house of SPD politician Michael Müller; in Bleicherode, the office of parliament’s president Birgit Pommer was smeared with swastikas; and in Suhl, SPD party offices were attacked. In Floh-Seligenthal, people threatened journalists present during a visit of Vice-Chancellor Robert Habeck, and a few days earlier, employees of a human rights organisation experienced racial harassment at an information stand. The social scientist Wilhelm Heitmeyer speaks of so-called threat alliances when right-wing extremist actors combine acts of violence and statements in parliament to intimidate, discredit and ultimately abolish critical opposition. For example, an AfD politician rails against a progressive music festival in parliament and thereby encourages violent criminals to send death threats to the festival’s directors. This dynamic reinforces mutual legitimacy within the threatening alliance, exacerbating the situation further.

Since the summer of 2023, we, the team of the Thuringia Project, have been researching what damage could be done to democracy and the rule of law if the AfD should gain access to state power – and threat alliances continue to intensify. Over one hundred and thirty times we sat down with academics, civil society organisations, judges, lawyers, journalists, cultural workers, teachers and (local) officials in both analogue and digital spaces, and spelt out scenarios. Raised what-if questions. Weighed up plausibilities. We travelled back and forth between Berlin and Thuringia almost every week: Erfurt, Jena, Bad Salzungen, Weimar, Eisenach. And, around thirty legal scholars have published on Verfassungsblog on constitutional law issues raised by the Thuringia project.

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Barbara Huber Scholarship Program

Max Planck Institute for the Study of Crime, Security and Law (Germany)

The Max Planck Institute for the Study of Crime, Security and Law (MPI-CSL) launches the Barbara Huber Scholarship Program. The Research Scholarship program is open to outstanding academics from foreign research institutions for particularly innovative research projects that contribute significantly to scientific progress in the areas of Criminology, Public Law, or Criminal Law. For further information see here.

Barbara Huber (1935–2018) was an outstanding legal scholar. She was a Senior Researcher at the Max Planck Institute for Foreign and International Criminal Law, now MPI-CSL, where she carried out numerous large-scale comparative law projects.

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Primarily, this was made possible by an extremely successful crowd-funding campaign on betterplace.org last summer – for which we would like to thank you once again. At the time, Robert Sesselmann was the first AfD politician to be elected district administrator and the threat to democracy and the rule of law posed by AfD members in positions of state power suddenly became very real. As the media buzzed with discussions on how to tackle these threats, we found ourselves on a regional train on the way to the village of Schwarzburg. During the weeks that followed, we started travelling more and more, met with officials, drew attention to our project and tried to get an overview of it all. Meanwhile, the crowd-funding campaign continued to run successfully, and we were able to expand the team to six employees and three volunteers.

Since then, we have been working together on what we call Civilian Constitutional Protection: We want to raise the democratic public’s awareness of the moves of authoritarian populist parties and ensure that we remain vigilant through anticipation. Gradually, four focal points of our work have emerged, four pillars so to speak: (academic) research, political education, policy work and communication.

We divided our research into subject areas: Municipal affairs, elections and parliamentary matters, public space, police and security, and the judicial system. We study police law, public procurement law, cultural law, and occasionally stumble upon forgotten and dusty legislation and regulations that nobody has thought about for years. We delve into the specifics: monument registers, state treaties and organisational charts; we trace recent events in Poland and Hungary and ponder more abstract questions such as authoritarian populists’ relationship to science or the methodology of scenario analysis. Finally, we compare law with reality and move back and forth between the two in order to develop scenarios that are legally and politically plausible. We are currently at the final stage of this research work. Some scenarios are already sketched out, but questions concerning the relationship between the federal government and the federal states are still unanswered: What would happen if principles of the rule of law were blatantly violated in a German federal state? Under what conditions and with what consequences would it be possible to react at the federal level? We want to research this intensively over the next few months. To this end, we are looking for immediate support from a research assistant, for whom we have advertised a position here.

Many of the scenarios we are dealing with have never occurred. Subjecting the law to a stress test and thinking into the future provokes new, unresolved or unaddressed legal questions. In order to find answers to these questions, we try to engage the legal discourse with our scenarios. Since the start of the Thuringia Project, researchers have used this blog to discuss solutions to blocking constellations in the appointment of judges, critically examine neutrality clauses in funding guidelines for civil society and reflect on the nature of political officials. In a blog debate, we discussed the phenomenon of parliamentary obstruction in detail. Over the next six months, we want to use these and other formats to discuss legal and political science issues relating to the resilience of our constitutional order.

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Nominations and Self-Nominations Sought for the Position of Director

at the Max Planck Institute

for Comparative Public Law and International Law,

Heidelberg, Germany

The MPG and the MPIL, Heidelberg, invite nominations for a director for a third and complementary research department.

Candidates should have a strong record of innovative research in international and comparative public law, EU law or comparative law and the ability to devise a long-term strategy for excellent research. Management and leadership skills and a spirit of collaboration are required to lead the academic and non-academic staff of over 150 persons.

Nominations should be sent to nomination@mpil.de until 31/3/2024.

Please click here for more information.

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It is important to us that our research results have a real impact. We have identified several (constitutional) legal loopholes that can be closed with little sacrifice to democracy. A few of these scenarios could still be mitigated by amending or clarifying certain legal provisions. To this end, we have developed a policy paper in close consultation with experts, which will be published in a few weeks and presents our recommendations for action. We have already published some of these in guest articles for Spiegel Online, for example on the procedure for terminating state media contracts or the preclusion of consultative referendums. Of course, this requires the necessary political majorities, and we are aware that these are difficult to organise, especially in Thuringia. Nonetheless, the publication of our scenario for the president of parliament has attracted a lot of attention, and the Left and the Green Party are now campaigning for a change in parliamentary rules.

With our results we particularly want to reach those people who could be confronted with these scenarios. Our aim is to elucidate in which moments their actions will become crucial. Authoritarian populists benefit from creating chaos and uncertainty by breaking with previous democratic conventions. To prepare officeholders for these situations and create more (legal) certainty among them, we are organising workshops with cooperation partners. Together with the Trade Union for Education and Science, we are planning five events to prepare teachers for authoritarian-populist strategies in the education system; with the German Association of Judges, we are preparing seminars for legal trainees. Workshops with journalists and the civil service are to follow.

A key part of the project is communicating the results to officials and the public. It is only in this way that we can succeed in raising awareness of authoritarian moves and mobilising civil society. We have therefore taken part in numerous events in recent months and are continuing to drive this forward, such as networking meetings and festivals of civil society organisations in Jena and Bad Salzungen. In the second half of the project, we will take part in lecture series at the universities of Jena, Leipzig, Tübingen and Erfurt, discuss the results of our research in panel discussions with legal scholars, municipal officials and political scientists and give lectures, for example at the New German Judges’ Association. In March, we will be touring Thuringia with the Partnerships for Democracy to inform civil society organisations and network with them. Since we want to reach as many people as possible with our work and raise awareness of authoritarian-populist strategies, we write newspaper articles, appear on television and publish our findings. We have written for Zeit Online and Spiegel Online, been a guest on the Tagesthemen and ZDF Heute Journal, and given countless interviews and background discussions for TAZ, SZ, MDR, FAZ and Tagesspiegel. We see that we are drawing attention to scenarios that could also become relevant in federal states beyond Thuringia. The media and politicians are starting to raise what-if questions themselves. So, it is with some pride that we can already say that the Thuringia Project works.

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An der Deutschen Universität für Verwaltungswissenschaften Speyer ist eine
W3 – Professur für Öffentliches Recht, insbesondere Verfassungsrecht und ein Grundlagenfach
zum nächstmöglichen Zeitpunkt zu besetzen.

Die erfolgreiche Bewerberin oder der erfolgreiche Bewerber vertritt das Fachgebiet des Öffentlichen Rechts, namentlich das Verfassungsrecht und ein Grundlagenfach, in Forschung, Lehre (ggf. auch in englischer Sprache) und Weiterbildung. Sie oder er wird für die Entwicklung und Umsetzung von Lehr- und Weiterbildungskonzepten zur Rechtsetzungslehre an der Universität Speyer verantwortlich sein.

Der Ausschreibungstext ist zu finden unter: https://www.uni-speyer.de/stellenangebote

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A lot has already been achieved. But much remains to be done. With a podcast for the Federal Agency for Civic Education and a book to be published in the summer, we want to present the results of our research and raise awareness of how vulnerable the law is to abuse. Together with two other organisations, we are building a structure for legal protection in Thuringia, Brandenburg and Saxony; we want to continue giving lectures, organising events and communicating our findings widely and effectively. We are also looking for a communications and an information manager with immediate effect. You can find the job descriptions here.

We are very grateful that so many people are supporting this project with their donations and would be delighted if you continue to help us expand civil constitutional protection against authoritarian-populist forces in the second half of the project. You can do this by continuing to donate, sharing our scenarios, staying informed, networking, publishing and protesting –because that’s how civil constitutional protection works.

Your Thuringia Project team

Anna-Mira, Carolin, Friedrich, Hannah, Jannik, Janos, Juliana, Klaas, Lennart, Marie, Max

The Week on Verfassungsblog

Two years have passed since Russia launched its large-scale attack on Ukraine. This act of aggression has caused great suffering for the people on the ground ever since. In her article, ISABELLE HAßFURTHER calls for an immediate reform of the ICC’s jurisdiction as well as establishing a special court for Ukraine. She points out that the ICC has currently no jurisdiction over crimes of aggression committed by nationals or on the territory of non-member states, unless the UN Security Council refers the case to the court. This exception creates accountability gaps and needs to be addressed.

The International Court of Justice delivered another blow to Ukraine’s litigation strategy on February 2, 2024. The blogpost of IRYNA MARCHUK and ALOKA WANIGASURIYA invites Ukraine to look beyond the false claim of genocide and consider bringing a new lawsuit before the ICJ.

A year ago, the Biden administration’s new green subsidy program spooked the EU into a flurry of industrial policy announcements. Now, the political dust has settled, and the EU’s main green industry initiatives will finally hit the legislative books. NILS REDEKER explains what the Net Zero Industry Act (NZIA) teaches us about EU Industrial Policy.

The British parliament (House of Lords) is currently debating the so-called Safety of Rwanda Bill. In combination with the Illegal Immigration Act, it could enable the deportation of refugees to Rwanda to carry out their asylum procedures there. EMIL KRUDE critically discusses possible consequences of this kind of outsourcing.

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Unser Team wächst weiter!

Für das Thüringen-Projekt besetzen wir Stellen als

Außerdem suchen wir Studentische Hilfskräfte für in den Bereichen Administration und Redaktion.

Das klingt interessant? Dann schau Dir hier die Ausschreibungen an.

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On Citing Van GendHENRI DE WAELE writes a text of a different sort. It concerns the probably most famous ruling ever delivered by the European Court of Justice, so the comparative weight is substantial. As one might expect, said judgment has been ubiquitously referenced in the past six decades, – yet it seems, it has been ubiquitously cited in a curiously erroneous manner. The post explores the origin of this spelling mistake.

On 18 January 2024, the German Bundestag passed the controversial Repatriation Improvement Act, which de facto criminalizes humanitarian support for entry by land and the entry of minors by sea, land and air. It is almost identical in wording to the Italian version of the law, which is before the ECJ as part of preliminary ruling proceedings. TERESA QUADT describes the impact which an ECJ decision in the Italian case might have on the German law.

There is moreover news from the digital section. ALEXANDER PEUKERT took a critical look at the Commission’s recently published proposals for platforms to prevent online election interference. A rather important topic considering upcoming elections of the next few years (Thuringia, European elections, Bundestag, France). Especially so, since the Commission’s recommendations seem to fall short of what is needed.

ERIK TUCHTFELD analyzed a danger that has – since the Snowden revelations – been widely known but has not really been averted: spying on encrypted messenger services. Secret services are always trying to build in ‘backdoor’ into services such as Signal, WhatsApp or Telegram. Within the scope of the ECHR, this practice is illegal, reaffirmed the ECHR in its Podchasov decision.

This week, a new symposium started on the topic of “Rethinking the Law and Politics of migration”. ANJA BOSSOW framed the intention underlying the call for this debate as “Imagining Change”. The essays demonstrate the challenges we are facing but also the many ways in which legal methods, ideas and strategies have been and can be utilized to push back against the prevailing anti-immigrant public discourse. The contribution of SARAH GANTY and DIMITRY KOCHENOV, highlights four techniques that have been used by the EU to govern (im)migration through what they call “lawlessness law” –