Understanding European Border Management

This contribution highlights how European border management disrupts conventional state-centric understandings thereof, while fostering impunity for human rights violations in its enforcement. EU borders are increasingly controlled in a supranational fashion by a panoply of different actors with different legal mandates and obligations, expanding within and beyond the physical frontiers of Member States. In addition, new technologies and the political turn to the logic of ‘crisis governance’ are contributing to changing the traditional practice of border controls, with a multiplicy of actors being involved in a complex dynamic of securitization. The actors, practices and the legal framework governing European border controls are rapidly changing; yet underlying linear and territorial assumptions and liability regimes remain unchanged perpetuating serious human rights shortcomings.

27. Februar 2024

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The EU’s Eastern Border and Inconvenient Truths

The Russian invasion of Ukraine in February 2022, alongside with the EU’s confrontation with Russia’s ally Belarus, however, has deeply impacted the securitisation of migration within the EU. Highly politicised conflict-related securitisation narratives have rarely found their way so swiftly into Member States’ domestic migration and asylum laws, leading to open and far-reaching violations of EU and international human rights law. Hardly ever before have ill-defined concepts and indiscriminate assumptions been so broadly accepted and used to shift from an individual-focused approach to blanket measures stigmatising, dehumanising and excluding entire groups. And rarely before have radical changes of this kind received so little criticism - a deeply unsettling and dangerous trend.

27. Februar 2024

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How the EU Death Machine Works

Since 2015, more than 27.500 innocent people died or ‘went missing’ in the Mediterranean. They drowned by themselves thanks to villain smugglers, the Council submits; accountability for the death toll is a complex matter, the Court of Justice finds; besides the geopolitical times are complex – the Commission is right. But what an accident: mare nostrum, a great thoroughfare, turned itself into a racialized grave. Yet, these deaths at EU borders, just as mass abuse and kidnappings by EU-funded and equipped thugs in Libya do not happen by chance. The EU-Belarus border is another locus of torture and violence. All this is a successful implementation of well-designed lawless policies by the Union in collusion with the Member States. In this post, we map key legal techniques deployed by the designers of the EU’s death machine.

27. Februar 2024

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Rethinking the Law and Politics of Migration

2023 was, to put it mildly, a terrible year for (im)migrants and their human rights. With the declared end of the Covid pandemic came an end to the exceptional border policies it had led to which had further restricted already weakened migrants’ rights. Yet governments have largely chosen to replace them with legal frameworks that incorporated many of the same rights negating policies and ideas- except for this time they put them on a permanent legal basis. Liberated from their initial emergency rationales, asylum bans have now joined outsourcing and overpopulated mass detention camps as standard methods of migration governance. What is the role of legal scholarship and discourse at a time where governments seem increasingly comfortable to eschew many long-standing legal rules and norms, often with majority support?

26. Februar 2024

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A2D for Researchers in Digital Platforms

Over the past decade, access to data (A2D) in digital platforms has emerged as a significant challenge within the research community. Researchers seeking to explore data hosted on these platforms encounter growing obstacles. While legal policies in the US have generally focused on establishing safeguards for researchers against the restrictions on access imposed by private ordering, the recent EU Digital Service Act (DSA) introduces a legal framework, which enables researchers to compel platforms to provide data access. These complementary legal strategies may prove instrumental in facilitating A2D for research purposes.

23. Februar 2024

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A Systemic Approach to Implementing the DSA’s Human-in-the-Loop Requirement

Policymakers and the public are increasingly concerned about a lack of transparency and accountability in content moderation. Opaque and incontestable content moderation decisions have potential impacts on freedom of expression and media freedom, and well-known issues of discrimination and bias. Our focus here is on how Article 20 DSA can and should be interpreted going forward. Specifically, does Article 20 require a human content moderator to review every content moderation decision on request? And should it?

22. Februar 2024

The DSA’s Trusted Flaggers

One of the most-publicized innovations brought about by the Digital Services Act (DSA or Regulation) is the ‘institutionalization’ of a regime emerged and consolidated for a decade already through voluntary programs introduced by the major online platforms: trusted flaggers. This blogpost provides an overview of the relevant provisions, procedures, and actors. It argues that, ultimately, the DSA’s much-hailed trusted flagger regime is unlikely to have groundbreaking effects on content moderation in Europe.

22. Februar 2024

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Will the DSA have the Brussels Effect?

The Digital Services Act (DSA) is a comprehensive effort by the European Union (EU) to regulate digital services. Many on-lookers in Europe and beyond its borders wonder about whether the DSA will influence activities outside of Europe via a “Brussels Effect.” In this contribution, we argue that when it comes to extraterritorial spill-over effects of the DSA that are driven by economic incentives or de facto standardisation and private ordering.

21. Februar 2024

Human Rights Outsourcing and Reliance on User Activism in the DSA

Article 14(4) of the Digital Services Act (DSA) places an obligation on providers of intermediary services, including online platforms hosting user-generated content (see Article 3(g) DSA), to apply content moderation systems in “a diligent, objective and proportionate manner.” Against this background, the approach taken in Article 14(4) DSA raises complex questions. Does the possibility of imposing fundamental rights obligations on intermediaries, such as online platforms, exempt the state power from the noble task of preventing inroads into fundamental rights itself? Can the legislator legitimately outsource the obligation to safeguard fundamental rights to private parties?

21. Februar 2024

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Towards a Digital Constitution

The DSA exemplifies the EU's efforts to create a fairer, more responsible digital environment. Through the DSA, the EU appears to be advancing a process of constitutionalisation of Internet governance, as an important milestone in the evolving landscape of “digital constitutionalism”, aiming to establish a unified framework of rights, principles, and governance norms for the digital space, while also contributing to the development of new governance structures and regulatory bodies dedicated to effectively safeguarding fundamental rights online.

20. Februar 2024