Articles for category: English Articles

Liberty of the Press Forever?

Constitutions are linked both to the past and to the future. A central constitutional mechanism in the attempt to mark a dividing line between the past and the future, to represent a new era are unamendable provisions. Unamendable provisions, in this sense, play a “negative” role, serving as a lasting reminder of recent past devastations and as a constitutional/institutional attempt to transform and never return to past injustices. It is within this framework of ‘never again constitutionalism’ I wish to examine one of the most unique and interesting unamendable provisions in the world: the protection of ‘Liberty of the press’ in the Mexican Constitution of 1824.

1. August 2024

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Allocating Duties and Distributing Responsibilities in a Post-Territorial Human Rights Paradigm

Migration is one of the frontier areas for rethinking the way in which human rights obligations are typically allocated. Not only is migration externalised and privatised, it is also a consequence of structural global inequalities. But complexity cannot be an excuse for lack of human rights accountability. Nor is there an unchecked mission creep: if human rights are indeed universal, there is no other option but to fill post-territorial gaps in human rights protection.

31. Juli 2024

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Relationalizing the EU’s Fundamental Rights Responsibility

Human rights law traditionally governs a three-part relationship which connects the individual, the state, and its territory. The design of the EU’s Integrated Border Management (IBM) governance model eschews the applicability and enforceability of international and European human (fundamental) rights law by significantly reconfiguring the relationship between each of these three prongs. This contribution maps how these three traditional triggers for the applicability of human rights law are increasingly evaded in EU IBM policies, the responses to these evasion techniques and how a relational turn in the determination of human rights responsibility may be inevitable. 

31. Juli 2024

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Humanitarian Visas for International Protection Purposes

When feasible, third-country nationals request within EU Member States’ diplomatic or consular representations a visa on the basis of their need of international protection, in order to be granted legal access to the issuing State’s territory precisely to apply for international protection upon arrival. The focal point is whether States can be required to issue these visas in order to comply with their human rights obligations. This contribution demonstrates that the European Court of Human Rights holding that States do not hold any obligation in the context of humanitarian visa proceedings is unconvincing.

31. Juli 2024

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Never Again to Us and/or to Anyone

There are few questions that have proven themselves more fruitless to pose than “What Are the Lessons of the Holocaust?” For very many Jews, and certainly for the Israeli state, the lesson, to be realized in law and policy, is “Never Again–to Us”. The more liberal or universalist lessons are a call for civil courage, democratic self-defense and early awareness of the possibility of dictatorship and mass murder, “Never Again–to Anyone. The tension between these two perspectives is found everywhere the matter is considered, even in Israel and even symbolically.

31. Juli 2024

Bulgaria’s Constitutional Drama and the EU Commission’s Rose-Colored Glasses

On 26 July 2024, Bulgaria’s Constitutional Court declared a significant part of constitutional amendments enacted in December 2023 unconstitutional. These amendments were part of a rushed constitutional reform which was supposed to address persistent rule of law challenges in the country, such as the excessive powers of the Prosecutor’s Office and the politicization of the Supreme Judicial Council. The drama in Bulgaria raises concerns about why the EU Commission recognizes half-baked, ill-written constitutional reforms as progress without analysis of their substantive merit in context.

30. Juli 2024

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Common but Differentiated Responsibility in Climate and Genocide Cases

The search for a more equitable and legally binding responsibility distribution mechanism in global refugee protection starts with the question what responsibility states bear for the protection of refugees and other forced migrants outside of their territory. Here I discuss two potential avenues within international law: the operationalised international law principles of cooperation and solidarity, based on their application in climate cases; and the Responsibility to Protect (RtoP) doctrine from international humanitarian law. The distribution mechanism they both apply might be useful to establish and define extraterritorial protection obligations of states towards refugees.

30. Juli 2024

Due Diligence in International Law

This contribution determines to what extent the international law obligations of due diligence, the no harm principle or the principle sic utere tuo ut alienum non laedas can be relied upon today to advance extraterritorial obligations of states towards migrants. Crucially for this purpose, the due diligence obligation is not limited to individuals within the jurisdiction of a State. Rather, States must ensure that activities within their jurisdiction do not cause serious harm to individuals in the territory of another State or to common interests of the international community.

30. Juli 2024

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ByteDance v. Commission

The Digital Markets Act (DMA) is a revolutionary tool to regulate EU digital markets, it complements competition law by imposing ex ante obligations on the largest digital undertakings. The General Court judgement in the ByteDance case was the first test of the limits of this expediated enforcement and resulted in a remarkable win for the Commission. The Court dismissed ByteDance’s appeal against the European Commission’s decision to designate ByteDance with its social network TikTok as gatekeeper under the DMA.

30. Juli 2024

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