Articles for category: English Articles

Polish Re-Democratisation as »Building Back Better«

Since the new Polish government took power, it has taken first steps to restore the rule of law. These have been quite different in nature, from the soft appeals to comply with the case law of the CJEU to more uncompromising and confrontational measures, like taking control of the public broadcasting TVP. It is clear that restoring a damaged liberal democracy requires a different mindset than fighting its demise. While the latter aims to strategically delay the anticipated undemocratic endeavours, the former must constructively rebuild. I call this ‘Building Back Better’, akin to the UN risk-reduction approach employed to avoid future disasters.

16. Februar 2024

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Advancing Accountability

In Alkhatib and Others v. Greece, the European Court of Human Rights (ECtHR) has condemned Greece for yet another instance of human rights violations in border management. By underlining the importance of clear regulations and adequate evidence within border operations, the Court showed avenues to enhance the accountability framework for violations perpetrated at Europe’s borders. Its decision contrasts favourably with the approach taken in the EU at large, where both legislators and national and supranational courts generally disregard the opacity in regulations governing border operations and the difficulty of collecting evidence for migrants.

15. Februar 2024

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A Shortcut at the Expense of Justice

On 31 January 2024, the International Court of Justice rendered its judgment on the merits of a case initiated by Ukraine against the Russian Federation in 2017. Ukraine alleged numerous violations by Russia of two treaties: the 1999 International Convention for the Suppression of the Financing of Terrorism and the 1965 International Convention on the Elimination of All Forms of Racial Discrimination. This blog post provides a brief overview of the decision and argues that the Court sidestepped the task of reconstructing what has happened in reality via judicial fact-finding. This approach comes at the expense of several legal errors. The harsh realities of the conflict and, most importantly, the human suffering on the territories of Ukraine occupied by Russia seem far removed from the grandeur of the Peace Palace.

15. Februar 2024

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»Rented Uterus« as a Universal Crime

The principle of universal jurisdiction (UJ) has traditionally been grounded in the idea of a collective response to the most heinous crimes on a global scale. Italy, a country that currently lacks universal jurisdiction for international crimes, is amid deliberations on a proposed bill advocating for the use of universal jurisdiction in cases of surrogacy. This analysis contends that the underlying political motive behind this bill is to curb all forms of same-sex parenthood, inadvertently resulting in a criminal law framework that would specifically impact male-gay couples. Secondly, it draws a parallel with “memory law”, illustrating how legal mechanisms initially established in the enthusiasm of the ‘90s are now being repurposed as instruments for divisive political agendas.

15. Februar 2024

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Teaching Human Rights in Russian Legal Education

The growing mistrust towards the West in Russia since the early 2000s, as well as general disillusionment with the results of political transition and economic reforms, along with the aggressive anti-human rights propaganda of the Russian regime for a long time, has led to a perception of human rights as a "Western theory" that does not fit the Russian people. This context made it easy in the 2010s to weaponize human rights in the Kremlin’s foreign policy rhetoric and subsequent direct aggression; the rhetoric of "protecting human rights" became the justification for both the annexation of Crimea and the initiation of full-scale aggression against Ukraine.

14. Februar 2024

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Dutch Court Halts F-35 Aircraft Deliveries for Israel

In a landmark decision, the Hague Court of Appeal ordered the Dutch government on 12 February 2024 to stop supplying Israel with F-35 fighter jet parts because there was a “clear risk” that serious violations of international humanitarian law (IHL) would be committed with the aircraft in Gaza. In their unanimous decision, the three judges relied on the European Union (EU) Common Position on Arms Exports and the Arms Trade Treaty as they apply to Dutch law, which outline criteria against which military exports must be assessed to determine the risk of abuse. The judgment made important findings on the nature of these risk assessments, which may have significant implications in future litigation.

14. Februar 2024

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Desperate Times, Desperate (Provisional) Measures

On 12 February 2024, South Africa requested the International Court of Justice (ICJ) to consider exercising its power under Article 75(1) of the Rules of Court to indicate provisional measures proprio motu against Israel. This is an extraordinary request by South Africa, coming less than three weeks after the Court indicated provisional measures against Israel on 26 January 2023. It is also very rare for the Court to act proprio motu, whether prompted by a state’s request or otherwise. South Africa’s latest request is a response to Israeli Prime Minister Benjamin Netanyahu’s statement on 9 February that Israel is preparing a ground invasion of Rafah in the south of Gaza. How will the ICJ respond to South Africa’s request? In this regard, the method by which South Africa seeks the Court’s intervention merits attention.

14. Februar 2024

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Christine de Pizan

In conversations on missing female voices in the traditional development of international law a repetitive argument given as an explanation for the absence of women as active designers and contributors to international law is that it was simply unusual to find women in certain professions at that time due to the assignment of gender roles and corresponding conduct and activities considered as adequate. There is certainly a great deal of truth in this explanation. Nevertheless, the argument that the absence of women was a normal side effect of the traditional social circumstances at that time could also serve as an excuse to overlook, ignore and make women invisible, who have actually played a crucial role as active designers of the international legal order. One of them is Christine de Pizan.

14. Februar 2024

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Absolute Truths and Absolutist Control

Last week, the Bombay High Court delivered its judgment in Kunal Kamra v. Union of India, comprising a split verdict on the constitutional validity of the Information Technology Rules, 2023. The rules install an institutional regime for determining – and warranting takedown by social media intermediaries – of content relating to the Central Government deemed “fake, false or misleading”. This regime was challenged on three main grounds – first, its violation of citizens’ free expression due to “fake, false, or misleading” speech being constitutionally protected; second, the pedestalization of state-related information, such that it enters public discourse with a single, truthful formulation, as being an illegitimate and disproportionate measure; and third, the violation of natural justice in enabling the state to determine truth and falsity concerning itself.

14. Februar 2024

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Can the Russian Constitution Still Strike Back?

Three decades after the adoption of the Russian Constitution, we must admit that it has not become an effective safeguard against the usurpation of power and state terror. The conditions under which the Russian Constitution could have served as a secure barrier to the revival of authoritarianism and state terror is a profound question warranting a separate discussion. I suggest that we should look a few steps ahead and imagine an optimistic scenario of a new attempt to establish democracy and rule of law in Russia – regardless of how improbable such a scenario may seem at present. One of the priorities of such an attempt will be to overcome impunity for the perpetrators of crimes of the Putin regime.

13. Februar 2024