Articles for category: English Articles

The Right to Fair Trial and the Rise of Sensitive Intelligence Evidence: Responses from the Dutch and UK Courts

Writing extra-judicially, Lord Justice Brown once described the typical court approach on matters of national security as follows: »the mere incantation of the phrase [national security] of itself instantly discourages the court from satisfactorily fulfilling its normal role of deciding where the balance of public interest lies.« (1994 Public Law) Yet, in recent times, despite a traditional reluctance to engage with sensitive intelligence evidence – cases such as Liversidge v Anderson and Cheblak, for example (Hans Born et al 2011) – some national courts have become increasingly more at ease with assessing so-called secret evidence before reaching a conclusion on the ... continue reading

7. Mai 2018

Courts and Counter-Terrorism: the Last Line of Defence?

Terrorism is all over the news these days but not always in the negative. For example, the Global Terrorism Index 2017 has established that the number of deaths caused by terrorism has decreased in 2016. Nigeria has even witnessed an 80 per cent reduction in the number of people killed by Boko Haram. At the same time terrorism is spreading to more countries. For instance, no fewer than 106 nations experienced at least one terrorist attack in 2016. In Europe, an increase is visible. While in 2002 there were 129 attacks leading to 14 deaths, the year 2016 witnessed 630 ... continue reading

7. Mai 2018

A Constitutional Referendum to Delegitimize the Constitution

President Andrzej Duda has just announced that on 10 and 11 November a referendum will be held in Poland on the need to amend the Constitution, in which he will put to the Polish people numerous questions arising from ongoing public consultations. This consultative referendum is an attempt to delegitimise the Constitution, on which the referendum’s own legitimacy is based.

7. Mai 2018

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Choosing between two Evils: the Polish Ombudsman’s Dilemma

The Polish legislator has adopted several controversial anti-terror and surveillance laws recently. Ombudsman Adam Bodnar had had applied for constitutional review before the Constitutional Tribunal – but the cases were assigned to panels that included unconstitutionally elected "anti-judges". Therefore, he decided to withdraw the application. But that is not the end of the story.

6. Mai 2018

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Deflection of Asylum Seekers to Ghettos in Third Countries?

One of the reform ideas of the Common European Asylum System is to enforce the deflection of asylum seekers to non-European countries. The designation of a third country as a safe third country may be made with exceptions for specific parts of its territory. That could cover the transfer of asylum seekers to an unstable third state, when a protection zone of the size of a refugee camp has been brought under control and asylum seekers are held there with their subsistence secured. This post aims at questioning the compatibility of this new scheme with the Geneva Convention and at eliciting a debate on it.

4. Mai 2018

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The Danish Institute for Human Rights and the Copenhagen Declaration – a Reply to Helga Molbæk-Steensig

In her blog post “Is Something Rotten in the State of Denmark?”, Helga Molbæk-Steensig analyses the making of the Copenhagen Declaration; the most important outcome of the Danish chairmanship of the Committee of Ministers of the Council of Europe. Molbæk-Steensig agrees with most commentators that the declaration does not reflect the Danish government’s “strong discourse of sovereignty and democratic deficit in the Danish debate“. We certainly agree on this point, but we cannot agree with Molbæk-Steensig when she claims that we – Denmark’s national human rights institution – played a passive, or even negative, role during the making of the declaration. We especially disagree when Molbæk-Steensig implies that we somehow legitimise a far-right narrative designed to limit the system of human rights protection in Europe or subscribe to a reductionist concept of democracy.

4. Mai 2018

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Corporate Liability for Extraterritorial Human Rights Violations – the US in Retreat?

Last week, in Jesner v. Arab Bank, the United States Supreme Court decided that foreign corporations cannot be sued in federal court for human rights violations that occurred outside the US and have no substantial link to the US. The decision is the latest piece of an ongoing debate around the question: just how far can the US meddle in affairs of other countries? More pragmatically, it makes international human rights litigation - a successful counterpart to diplomatic intervention in the past - much more difficult today.

2. Mai 2018

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Has Parliament Taken Charge of Brexit?

The UK House of Lords has adopted amendments to the European Union (Withdrawal) Bill that would make the conclusion of a withdrawal agreement contingent on parliamentary approval. It is not at all clear which, if any, of the Lords amendments will survive in the House of Commons, and we may not find out for a while. It may be premature to conclude that Parliament is now fully in charge of the Brexit process. What the amendments show, however, is that Parliament can assert control if it chooses to do so.

1. Mai 2018

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Bavarian Krampf

On the cross, the kippah and other constitutional and unconstitutional uses of religious symbols to make refugees feel bad.

28. April 2018