Articles for category: English Articles

KlimaSeniorinnen and the Choice Between Imperfect Options

The facts of Verein KlimaSeniorinnen Schweiz and Others v. Switzerland were categorically different from the ECtHR’s previous environmental case law. The Court therefore decided to incorporate important parts of International Climate Change Law into the ECHR. From an institutional perspective, this approach, which is not without its weaknesses, amounts to the ECtHR’s attempt to maintain the relevance of the Convention in the midst of the climate crisis, while, at the same, carefully striving to respect the realm of politics.

18. April 2024

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Solidarity Crimes, Legitimacy Limits

The criminalisation of humanitarianism has become pervasive in the EU over the last two decades. Overbroad definitions of the crimes of facilitation of irregular entry, transit and stay produce well known noxious effects on the human rights of migrants and civil society organisations. Nevertheless, the tendency has been to tighten the rules rather than contesting the EU’s failure to pursue a migration control system that is ‘fair towards third-country nationals’ and constructed ‘with respect for fundamental rights.’ In this blogpost, I argue that the EU legislator’s disregard for the human rights impacts of the facilitation regime constitutes an abuse of power. Legislative measures that have the effect of subverting legally enshrined principles (Arts 2, 6 & 21 TEU) and suppress the rights of civil society and the migrants with whom they engage are incompatible with core democratic premises.

17. April 2024

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India’s Push-and-Pull on Reproductive Rights

For a piece mapping India’s push-and-pull on reproductive rights – the expanse of its protection and the edges it comes up against – history is a good place to start. Rights in the reproductive sphere are relatively new to India. While India enacted a seemingly liberal abortion legislation as early as 1971, concerns about women’s rights were hardly the drivers behind it. Women’s bodies were a means to achieve the State’s end of population control. It is difficult to justify if women were truly seen as rights-holders. Did this change in recent years?

17. April 2024

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Mixed Signals for Domestic Climate Law

The climate rulings of the Grand Chamber of the European Court of Human Rights (ECtHR) are landmark decisions. However, it is not obvious what they mean precisely for the State parties of the European Convention on Human Rights (ECHR). Have we witnessed, in Verein KlimaSeniorinnen Schweiz, a landslide victory for the activists that will revolutionize domestic climate law? Or do the two other decisions in which the Grand Chamber dismissed the applications preponderate?

17. April 2024

A Non-EU Rule of Law Commission

In March, the European Parliament decided to sue the European Commission over a quid pro quo exchange of European Union funds with Hungary for support of Ukraine EU accession. This lawsuit marks a striking culmination of a years-long failure on the part of the Commission to protect the rule of law. Given frustrating delays from Brussels, this blog post proposes a non-EU accountability mechanism—a so-called Rule of Law Commission—to bolster and reinforce commitments to rule of law issues among European states.

17. April 2024

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On the Duarte Agostinho Decision

We may not readily describe Duarte Agostinho as a success. But it does offer an excellent opportunity to clarify what we mean by ‘success’ in this context. Arguably, this depends on our expectations – whether that’s to generate attention, trigger mobilization, seek judicial engagement with an issue, clarify the law, or pursue a given outcome, among others.

15. April 2024

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In the Dark

There is an old adage in the world of official transparency that “sunlight is the best disinfectant”. But when it comes to Europe’s recovery transformation via the NextGenerationEU (NGEU) programme and related instruments, the Commission insists on conducting as much of it as possible in the dark. As concerns grow about both the effectiveness and even potentially corruption in the use of recovery funds, this lack of transparency is particularly worrying.

15. April 2024

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The Fabulous and the Fascist

The last ten years have witnessed the gradual collapse of democracy and constitutionalism in India. Where do LGBT rights figure in all this? I contextualize the wins and the losses and discuss why LGBT rights in India are not “under attack” as they have been under authoritarian governments elsewhere.

15. April 2024

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A Rejoinder to Citizenship for Sale (Commission v Malta)

In his piece on Citizenship for Sale of 14 April 2024, Joseph Weiler criticizes the European Commission's infringement procedure against Malta's golden passport scheme. He names three reasons why the Commission should (or could) not have brought the case and the Court should not uphold it. While the present reply does not argue that the Court will necessarily find in the Commission's favour, the Commission's legal claim and strategy do not seem to be as (constitutionally) problematic as Weiler make them out to be.

15. April 2024

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