Articles for category: English Articles

Civil Disobedience and Judicial Theories of Political Change

This post considers the latest episode of Australia’s engagement with civil disobedience under its constitutionally ‘implied freedom of political communication’ — Kvelde v New South Wales (‘Kvelde’). In Kvelde a judge of the New South Wales Supreme Court followed the tendency of some High Court judges of reducing the democratic value of civil disobedience to binary terms: if a form of political speech is already illegal, the Court will not engage with further legislative acts seeking to increase penalties for it. I describe this as the ‘binary approach.’ I argue that the binary approach reflects a particular judicial theory of political change not necessarily prescribed by the freedom, that is also out of step with historical Australian political practices.

1. Februar 2024

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The Limits of Public Participation

In this piece, I critique the proposed people-driven constitution-making process in South Sudan, identifying some challenges that may hinder meaningful participation by the people. One is mass illiteracy: over 70% of the population is illiterate. This can impact the people’s capacity to meaningfully engage with some of the complex issues that may arise from the process. Another factor is that involving the people could exacerbate existing ethnic tensions in the country, as constitution-making is inherently divisive. My suggestion is to entrust the process to experts with oversight by parliament.

1. Februar 2024

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The Ambivalent Juridification of Humanitarian Space

While humanitarian actors remain hesitant and somewhat suspicious to legal regulation, litigation, and lawyers, the sector is going through a process of juridification: the law regulates more activities, is more often used to solve conflicts, and the legal profession is getting more involved in the nuts and bolts of humanitarian lawyering. Most importantly, individuals in crisis and aid workers increasingly see themselves as legal subjects – whether as workers, rights-holders, or customers. My objective in this blog is to encourage the humanitarians to deal with these developments more comprehensively. Moreover, this blog post takes stock of the ambivalence to law and emergent shifts in the sector and calls for international law scholars to pay more attention.

31. Januar 2024

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South Africa v Israel: A Solomonic Decision as »Constructive Ambiguity«

In its wise Order of 26 January 2024, the ICJ managed to make a virtue out of a necessity: Israel was not prohibited from continuing its combat operations but was reminded of its strict compliance with international humanitarian law and its obligation to avoid genocide. At the same time, the ICJ reiterated the requirement to respect the most fundamental rights and the core of humanitarian law to all warring factions. Despite still essentially being a court for inter-state disputes – it put the individual, the human being, at the centre. Henceforth, the ICJ’s order of provisional measures is a Solomonic decision at its best and a further step towards the “humanization of international law”.

31. Januar 2024

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Is the Norwegian Paradox Coming to an End?

A wind of change is sweeping in the last stronghold of European petrostates: Norway. The recent decision rendered on January 18, 2024, by the District Court of Oslo in the North Sea Fields Case may testify to the demise of what was once called the Norwegian paradox, referring to Norway’s dual role as a climate leader internationally while maintaining a significant reliance on fossil fuels domestically. Despite advocating for climate action on the global stage, Norway remains the largest per capita exporter of CO2 emissions, due to its substantial petroleum industry.

30. Januar 2024

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Shielding Frontex 2.0

In Hamoudi v Frontex, the General Court dismissed another action that could have clarified if, when, and how independent or joint human rights responsibility would arise when Frontex is engaged in shared operational conduct with the Member States. This time not on the basis of an obscure re-interpretation of the Applicant’s claim, but instead, on the basis of an unattainably high and unrealistic burden, standard and method of proof. In doing so, the General Court again eschews from clarifying the nature, conditions and consequences of both independent and joint human rights responsibility of Frontex. Taken together, these cases raise the question whether there are any viable forms of judicial recourse for fundamental rights violations committed or contributed to by the EU’s Border and Coastguard Agency.

30. Januar 2024

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Provisional Measures as Tools of American Empire

One could feel the weight of history on her shoulders, as Judge Joan Donoghue, President of the International Court of Justice, read the provisional measures order in South Africa v Israel. Her hand reached several times for the glass of water. Carefully, and with an occasional sip of water, she walked her viewers on the ICJ’s streaming service from one provisional measure to the next. By first zeroing in on the role of the American judge, this post describes how the provisional measures decided upon, ultimately correspond to a larger project of global American governance. As I will argue the US Executive Branch is likely to take a lead role in interpreting the provisional measures, further cementing their place as tools of empire.

29. Januar 2024

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A Way Forward?

While included in the EU Charter of Fundamental Rights (CFR), academic and scientific freedom were for years hardly a focus for the EU. This no longer holds true. On 29 November 2023, the European Parliament invited stakeholders to discuss the state of academic freedom in Europe (STOA conference), including the role of the EU in its legal protection. The conference intertwines with two important developments, both driven by the EP. First, on 22 November 2023, the EP adopted its proposals for the amendment of the Treaties, with some relevant for academic freedom protection. Earlier this month, on 17 January 2024, the EP approved the Report calling on the Commission to initiate a legislative proposal on the promotion of the freedom of scientific research in the EU and providing recommendations on its content. In this blog post, we briefly discuss these two EP calls aimed at enhanced protection of academic and scientific freedom to assess to what extent they address the concerns raised by various stakeholders.

29. Januar 2024

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Too little, too late

A few weeks after the ECtHR first stepped into the ring for the fight against rule of law backsliding in Poland via its Xero Flor judgment, it has now dealt a new blow to the Polish judicial reforms. In its Broda and Bojara ruling, the issue at hand was not the composition of the Constitutional Court, but the termination of judges’ mandates as court (vice) president. In its judgment, the Court showed once more its commitment to the safeguarding of domestic judges and the procedural protection they should enjoy. Yet, one can wonder whether the judgment will really have an impact and if it is not too little too late.

26. Januar 2024

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