Articles for category: English Articles

The Dangers of Conflation

On May 17th 2023 Advocate General de la Tour handed down the Opinion in case C-402/22. It addresses the meaning of “particularly serious crime” found in Article 14 (4) (b) of the 2011 Qualification Directive, which sets out the grounds for revocation or refusal to grant refugee status under EU law. This provision refers to “refugees delinquents” and introduces security concerns of states as the ground for depriving persons of their refugee status. In practice, it opens the question of how to treat refugees that committed certain crime(s) after they obtained refugee status. In this blog I detail the AG’s answer to that question and raise one overriding concern regarding Article 14 QD.

8. Juli 2023

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From Symbolic Constitutionalism to Real Constitutionalism

In 2010, Kenyans adopted a new constitution that was meant to limit the power of the presidency and entrench the culture of constitutionalism. However, the past 13 years have shown that ‘the forces of authoritarianism appear to have regrouped and are staging a comeback’. These attempts have been met with resistance from Kenyan citizens, who have shown that they are willing to defend their constitution. One example of this resistance is the BBI case, in which the High Court struck down a constitutional amendment bill that would have given the president more power. This week, the High Court issued another spectacular ruling in which presidential power is further curtailed.

7. Juli 2023

Mourning the Dead While Securitizing the Sea

On 16 June, just two days after the catastrophic Pylos shipwreck in the Mediterranean with probably hundreds of deaths, the EU Commission organised the 4th meeting on a European framework for search and rescue in the Mediterranean. The framework is supposed to address „the specific challenges stemming from the ongoing migratory movements to the EU by sea, including those deriving from the increased number and types of actors involved in SAR operations“. While the alleged aim of the framework is to improve cooperation between Member States and other actors, under the guise of ‘improving cooperation with other actors’, the milestones (‘deliverables’) identified in the draft roadmap for the adoption of the framework risk to further impede civil search and rescue operations. Civil society organisations active in Search and Rescue operations may face extensive administrative burdens in registering ships and in the execution of search and rescue operations.

7. Juli 2023

Competition law as a powerful tool for effective enforcement of the GDPR

It looks like a good week for data protection. On Tuesday, the Commission presented a new proposal for a Regulation on additional procedural rules for the GDPR, and a few hours later, the ECJ published its decision C-252/21 on Meta Platforms v Bundeskartellamt (Federal Cartel Office). While the Commission's proposal to improve enforcement in cross-border cases should probably be taken with a pinch of salt, the ECJ ruled on some things with remarkable clarity. The first reactions to the ruling were quite surprising; few had expected the ECJ to take such a clear stance against Meta's targeted advertising business model. It does however represent a consistent interpretation of the GDPR in the tradition and understanding of power-limiting data protection.

7. Juli 2023

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Reform the European Union for Enlargement!

External shocks such as the financial and migration crises, the Coronavirus pandemic, as well as internal and external security threats from terrorism as well as Russia's war against Ukraine emphasise that the EU, which has developed to be more heterogeneous, has become increasingly fragile. In line with a reduced willingness and ability of Member States to integrate further, the EU is becoming incapable of action and therefore is in danger of losing the trust of its citizens. Against this background, it is important not to gloss over the problems and to develop constructive solutions. This blogpost offers several possible solutions.

6. Juli 2023

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Constraining Executive Discretion in the ›Public Interest‹

The use of highly-discretionary executive powers to make immigration decisions has given rise to debate in Australia and internationally. In Australia, the problem is particularly acute because a number of provisions in the Migration Act 1958 (Cth) (the Migration Act) allow the Minister for Immigration (the Minister) to intervene in visa decisions on ‘public interest’ grounds. These intervention powers are controversial as they are personal to the Minister, non-reviewable and non-compellable. As a result, they have been subject to criticism by both civil society and academics. In addition to these intervention provisions, other sections in the Migration Act include a broad and subjective ‘national interest’ criterion for the grant or refusal of certain visa decisions. These two sets of powers were recently adjudicated in a series of High Court cases in Australia.

5. Juli 2023

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Bolsonaro Faces the Rule of Law

On 30 June 2023, the Brazilian Electoral Superior Court ruled that former President Jair Bolsonaro is disqualified from running for any electoral position for the next eight years. Although there are fifteen other electoral actions brought against Bolsonaro by other political parties or by public electoral prosecutors, most of which refer to accusations of attempting to compromise the integrity of the 2022 elections, this was the first case to reach Brazil’s highest electoral court. Despite there being a precedent, the ruling is not a legal innovation, but the mere application of existing laws.

4. Juli 2023

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The Supreme Court v. the Administrative State

On Friday, June 30, the Supreme Court ended its session with a serious blow to the progressive agenda after its decisions striking down race-conscious college admissions and narrowing protections for LGBTQ consumers the day before. In its final case, Biden v. Nebraska, the Court further thwarted the Biden campaign, which is counting on the help of young voters to get reelected for a second term, as it struck down the Biden administration’s plan to wipe out more than $400 billion in student debt. The decision in Biden v. Nebraska joins a series of recent Supreme Court decisions aimed at curbing the executive branch’s power to regulate certain issues and to limit the so-called administrative state. In this battle against the administrative state, the major question doctrine, according to which it cannot be assumed that the administration has been authorized to regulate a “major question” with far-reaching economic and political consequences without “clear congressional authorization,” has become one of the central tools.

3. Juli 2023

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The Kakhovka Dam and Ecocide

The destruction of the Kakhovka dam and consequent damage to housing and flooding of tens of thousands of hectares of land, is reportedly causing severe harm to humans and nature. This blogpost argues, first, that the destruction of the Kakhovka Dam potentially violated prohibitions under multiple fields of international law, but that challenges will nonetheless arise in establishing criminal responsibility for those violations due to the distinct elements of the relevant criminal provisions and the heightened burden of proof on the prosecution in such cases. Because various normative systems are applicable to the facts, ranging from international humanitarian law, international criminal law, and international environmental law, a means of reconciling conflicts of norms will be required. This will be best served by an approach of complementary interpretation.

3. Juli 2023

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