The COVID-19 pandemic has made it clear that even when using trusted legal tools, courts may run into challenging problems. Governments reacted to an unprecedented (at least in the context of post-WW2 era of fundamental rights) global crisis by adopting measures that drastically limited fundamental rights in order to protect the lives and health of many. Courts, of course, were entrusted with protecting fundamental rights against governmental overreach. The question was, how strict should the courts be when reviewing governmental acts. On the one hand, they could have relied on substantive proportionality assessment. This option, however was virtually ignored and most courts have opted for a deferential approach. This article analyzes both of these approaches, their strengths and weaknesses, but ultimately it argues that a third option - semiprocedural review - is the best way out of this judicial conundrum. Relying on comparative as well as theoretical arguments, it argues that semiprocedural review is the best way to deal with challenging empirical question - even under conditions of epistemological uncertainty.

Should theoretical discourse supporting state crimes be protected as free speech or prosecuted as atrocity speech? The relationship between Neo-Hobbesian Nazi collaborator Carl Schmitt and progressive Futurology founder Ossip Flechtheim provides a fascinating framework for exploring that question. In 1933, Schmitt rejected Flechtheim as a PhD student, on antisemitic grounds. Meanwhile, becoming Nazism’s “Crown Jurist,” he helped force Jewish lawyers, including Flechtheim, into exile. Post-war, Flechtheim, now on the US Nuremberg prosecution staff, arrested Schmitt. Through Flechtheim’s experience, this article explores how Schmitt’s prosecution, within a contemplated “Propaganda and Education Case” (PEC), might have determined how to treat atrocity-complicit academic propagandists. It chronicles how the PEC/Schmitt case collapsed when Flechtheim’s investigation was curtailed due to resource constraints, equivocal precedent, and prosecutor Robert Kempner’s botched interrogations. Nonetheless, Flechtheim contributed to the Ministries Trial conviction of propagandist Otto Dietrich. The article concludes by juxtaposing that case with Schmitt’s near-prosecution to contemplate norms for charging theorists laying needed groundwork for atrocity, via sufficiently proximate speech, even absent direct incitement. Such an international justice future would mirror immediate post-Cold War intellectual developments, which vindicated Flechtheim’s vision, not Schmitt’s. Exploring this topic is timely, as Russian academic discourse has enabled/fueled Ukraine’s invasion and related atrocities.

Legal rules aimed at compensation for the harm caused by a particular state, individual, or legal entity (for example, oil pollution of the sea due to a tanker accident) are well studied and constantly used in scientific literature and international law practice. Meanwhile, every year, the number of cases of harm when the particular guilty party cannot be established grows; this is why it is almost impossible to compensate for the harm caused. Such cases include collisions of satellites causing space debris; the consequences of climate change for agriculture, forestry, and the health of citizens; and the pollution of the World Ocean with plastic debris, ballast water, and abandoned nets.

There are more such cases at the national level. After studying acts of international environmental law, national legislation, and several examples from judicial practice, we show that compensation for the harm caused to life, health, or property in the absence of a particular harm-doer is difficult or impossible to prove. This is why actions that can prevent subjectless environmental harm are taken at the national level in certain countries by developing measures to mitigate and adapt to climate change, licensing space activities, and taking preventive measures against the formation of plastic debris and its pollution of the seas, etc. This trend should be continued, and the experience gained by certain states should be used in developing new acts of international environmental law. This will ensure the next step towards preventing environmental harm where it is impossible to establish the doer’s name.

This Article discusses the emerging strategic litigation practice in the European Union through the lens of participatory democracy. After situating such a practice both historically and conceptually within the specificities of the EU legal order, it explores whether and the extent to which strategic litigation, understood as an additional form of participation in the Union’s democratic life, may contribute to EU participatory democracy and under which conditions. It unveils that while strategic litigation carries the potential to enhance democratic participation in the EU, it also risks—due to limited judicial literacy and unequal access to justice—empowering those already powerful. For strategic litigation to unleash its democratic potential at scale, EU courts must—as required by the “Provisions on Democratic Principles” of the Treaty of Lisbon—ensure a participatory enabling environment capable of proactively catalyzing and facilitating the ability of ordinary citizens—as well as diffuse, under-resourced and traditionally overlooked groups—to be better able to contribute to the Union’s democratic life. Ultimately, no legal order worth of its name should rely on the heroism of its citizens and residents to keep its legal system in check.

The gradual digitization of EU migration policies is turning external borders into AI-driven filters that limit access to fundamental rights for people from third countries according to risk indicators. An unshakeable confidence in the reliability of technological devices and their ability to predict the future behaviour of incoming foreigners is leading towards the datafication of EU external frontiers. What happens if the supposedly infallible algorithms are wrong? The article aims to understand the consequences of algorithmic errors on the lives of migrants, refugees and asylum seekers arriving in the European Union. This contribution investigates the socio-political implications of deploying data-driven solutions at the borders in an attempt to problematize the techno-solutionist approach of EU migratory policies and its fundamental rights impact on affected individuals.

Climate change stands as the paramount challenge confronting humanity in the contemporary era. Attempting to address the problem, the main sectors responsible for it have been subject to domestic or international policies and laws aimed at reducing greenhouse gas (GHG) emissions, except one: livestock. Given that animal-sourced food production contributes a large portion of GHG emissions, this Article aims to analyze the impacts that the exclusion of the livestock sector, in efforts to tackle climate change, would have on compliance with international treaties on the subject, especially the Paris Agreement. One conclusion reveals that state parties, by ignoring the sector, will violate several articles of the Agreement, which will likely lead to the failure of its main purpose of holding the increase in the global average temperature to well below 2°C.

Schengen integration has been home to different visions from the outset. In this vein, it owes much of its success to the fact that it has been both practical and symbolic in nature. However, this equilibrium of different visions has been upset following a series of crises. By prioritizing security considerations over alternative visions of Schengen, some Member States have reintroduced internal border controls on a quasi-permanent basis. Current reform proposals seek to address this situation but may be unable to revive the co-existence of the different visions underpinning the earlier phases of Schengen integration. Rather, as this investigation suggests, the reform that is currently being discussed would reaffirm the nature of Schengen integration as a pan-European security project. While this goes hand-in-hand with elements of supranational governance and coordination, it may impair the role of Schengen as an identity-creating project. This investigation analyzes the elements of the reforms discussed, presents them in the light of different visions of Schengen, and draws attention to possible constitutional limits of its reform.

By addressing the question “Are the roles and values of stakeholder participation qualitatively different for non-governmental organizations (NGOs) and national human rights institutions (NHRIs), and if so, how?” this article dissects stakeholder participation in UN human rights treaty body activities. First, it normatively posits that stakeholder participation in treaty body activities carries three values, which weigh differently based on the actor and the treaty body activity concerned: facilitating “bounded” national deliberations, promoting international deliberations on human rights treaty standards, and supplementing the treaty bodies’ fact-finding capacity. It offers concrete normative guidance for treaty bodies on their engagement with NGO and NHRI participation to maximize the benefits of these values. It then empirically analyzes their current practice in light of the above-mentioned normative guidance. This article contributes, first, to the theorization of stakeholder participation in treaty body activities, which has been discussed but only in generalized or fragmented ways in previous studies. Second, it supports the effectiveness and legitimacy of treaty bodies by endorsing their practice that is consistent with the guidance and finding space for improvement. Finally, it provides a rationale for establishing and strengthening NHRIs by showing that NHRI participation has unique roles distinct from those of NGOs.

Much work has been produced on the passport and on exceptional regimes of mobility, notably asylum or permanent immigration. There has, by contrast, been less research on that intermediary, ubiquitous legal device that is the visa, a fundamental manifestation of state discretion, a major source of arbitrariness, and a constant assertion of power over moving bodies. The visa is a manifestation of and is embedded in a deeper infrastructure of limited global mobility. Adopting a global and comparative perspective, this Article seeks to analyze the politics of the visa as the indispensable sesame of international travel but also as the ultimate manifestation of that infrastructure’s arbitrariness. The Article highlights an ideal type of the visa especially as it is deployed towards “at risk” categories, emphasizing the sort of performance it requires from applicants in adapting to the system’s demands as they are relayed by officials, corporations and, increasingly, algorithms and artificial intelligence. It will highlight the constraints of applying for the visa, its temporal frames, its assorted conditions, and its denial and possibilities of contestation thereof. The Article contends that, globally, the visa is the key legal infrastructure to channel systemic discrimination, frustrate professional and cultural opportunities, and keep families apart in ways that entrench class and racial divides.

As modern constitutions bind democratic legislation to entrenched norms, they are in tension with the democratic idea that laws should be open to revision by new majorities. Against a widespread view, constitutional norms cannot be considered to be “more democratic” than ordinary laws due to specific qualities of the constitution-making process. Rather, the higher-level law of constitutions can fulfil a specific function as it may provide standards that ensure that laws made by the majority can be justified to everyone. On that basis, I evaluate for different types of constitutional norms whether there are good reasons for constraining legislation. In particular, entrenching cultural traditions and economic policy is more problematic than guarantees of the democratic process and rights ensuring respect for individuals. In sum, a two-tiered law-making system has important values, but people engaging in constitution-making and constitutional interpretation should be wary that the constitutional form is not abused.

Strategic Lawsuits Against Public Participation or SLAPPs are abusive lawsuits which have the purpose or effect of suppressing public participation. This Article considers the peculiarities of this form of “strategic litigation” and takes stock of developments in the European Union to combat SLAPPs, noting that while the adoption of an Anti-SLAPP Directive represents an example of effective legal mobilization and a major positive step towards safeguarding the rule of law in the EU, its limitations render it crucial that Member States treat the Directive as a foundation and build national legislation which is more robust in substance and more far-reaching in scope.

The absolute implementation of the originator control principle (‘absolute originator control’) allows the EU Member States’ national intelligence services to block the access of the European Parliament to confidential information necessary for the effective exercise of joint parliamentary scrutiny at Europol. This research paper will demonstrate that this is a flawed practice in need of urgent reform, since it violates some of the basic tenets of EU constitutional law enshrined in Article 13 TEU and Article 9 TEU. This legal problem is reframed with the help of trust theory, which reveals that absolute originator control causes the Union to be confronted with a constitutional dilemma that is irresolvable in the EU legal order: the Union is revealed to be a trustee to two trustors – the EU Member States and the EU citizens; to protect the interests of one trustor, the Union would necessarily have to betray the trust of the other trustor.

Rapid, unpredictable ecological changes and the resulting instability that are characteristic of the Anthropocene call for a re-examination of the role of law in governing interactions between humans and ecosystems and facilitating adaptation to ecological change. The scope and scale of environmental change we are experiencing seem to call for a regulatory approach, namely forms of law that are designed to pursue well-defined material objectives, often through instruction rules designed to guide behavior to line up with those objectives. Such forms of law have a crucial role to play. However, the negligence principle at the heart of civil liability law is also capable of absorbing and circulating information about environmental risk and means of addressing it, and of translating that information from empirical to normative terms. The grounding of negligence in domestic civil liability law could be a serious obstacle to its effectiveness given the global, Earth system-wide nature of environmental degradation. However, the negligence principle increasingly operates through networks that traverse jurisdictional boundaries, as well as the boundaries between social systems. I propose such a network approach to analyze interactions between the negligence principle and corporate due diligence obligations embedded in domestic legislation and international texts such as the United Nations Guiding Principles on Business and Human Rights (UNGPs). One important result would be the imposition of expanded epistemic obligations on firms, which would in turn require their serious engagement with domestic, international, and transnational environmental and sustainability norms.

Over the last few years, artificial intelligence (AI) technologies have become embedded in various domains of social life, prompting legislative efforts at both national and international levels. In the European Union (EU), this drive for legislation has been reflected in various legal instruments, notably the proposed AI Act, which is expected to become a global standard through the “Brussels Effect.” This Article argues that while the AI Act will likely produce a Brussels Effect of its own, such an outcome will be accompanied by a side effect that undermines the EU’s ambition to spread legislative text and values in AI governance. Since the AI Act follows EU product safety legislation, its provisions supply limited protection to some of the values the EU policy intends to protect, such as the protection of fundamental rights. These shortcomings are compounded by the EU’s active efforts to shape alternative instruments, such as the Council of Europe’s proposed convention on AI along the lines of the AI Act. As a result, the diffusion of the AI Act as a global standard will have consequences for the EU policy agenda on AI and the conceptualization of the Brussels Effect.

Both European Union law and the European Convention on Human Rights offer an opportunity structure for a broad array of interests to pursue their objectives through strategic litigation. The spectrum of rights that litigants can claim is sufficiently broad that no consensus has emerged on the general consequences of such litigation. While much research has emphasized European law as a resource for civil society groups, EU law in particular has also been identified as a boon for businesses who challenge cornerstones of coordinated capitalism. This paper sets out to provide a better empirical basis for a normative evaluation of the consequences of strategic litigation in European law by asking who engages in it and who does not. It draws on data from a large-scale survey among interest groups in eight European countries. While results show significant differences in country-level litigation rates, the focus of this analysis is on the impact of group characteristics on the choice of litigation as a strategy. The findings confirm that litigation requires specific resources but highlight that groups with a prior interest in European affairs and those with antagonistic relations to national authorities are the most likely to turn to strategic litigation based in European law.

We discuss the issue of bringing human trafficking and forced prostitution within the purview of Article 4 of the European Convention on Human Rights. The judgment of the European Court of Human Rights in Rantsev v. Cyprus and Russia marked a turning point by classifying forced prostitution through human trafficking under Article 4. However, in the judgment in S.M. v. Croatia, the ECtHR further reinforced its view that human trafficking and forced prostitution constitute a violation of Article 4.

We explain human trafficking and forced prostitution both theoretically and through a number of international legal acts. We then explain Article 4 of the Convention and provide a comprehensive analysis of the material and procedural guarantees against human trafficking and forced prostitution. We also comment on the positive obligations that the ECtHR set for Member States. The authors believe that, despite numerous criticisms, the ECtHR’s position is correct and that both human trafficking and forced prostitution violate the principles of democratic society. Therefore, victims must enjoy the protection afforded by Article 4 of the Human Rights Convention and other conventions if their life situation falls within their scope.

CJEU case law has long emphasized the autonomy of the EU legal order, recently triggering the foreclosure of intra-EU investment arbitration. Though academic discourse has treated this as a European peculiarity, autonomy is not unfamiliar to international law as an inherent attribute of all international organizations (IOs). This Article traces how the CJEU employed this as the basis for the development of a legal principle of significant constitutional role in safeguarding the EU’s jurisdictional integrity. First, It considers the EU conception of autonomy on the basis of two identified dimensions of IOs’ autonomy under international law. Political autonomy characterizes the scope of an IO’s powers and its independent legal personality. Institutional autonomy denotes its (im)permeability to external norms. Second, the Article examines autonomy’s different normative status under international and EU law as a legal notion and a constitutional principle, respectively. Rather than viewing the latter as an EU invention, it amounts to a Pygmalian judicial creation—the CJEU drew inspiration from a notion of international law and adapted it within the Union framework. The Article justifies these adaptations by reference to international law in light of the EU’s institutional-judicial architecture and the intertwining of autonomy with, inter alia, Article 2 TEU values.

Whenever a person intends to cross a border, citizenship de facto determines—more than any other status—whether that person can enter the territory of another state. Yet, despite its ubiquity and centrality within global mobility infrastructures, the exact mechanisms through which citizenship shapes human movement on the planetary scale remain surprisingly ambiguous. This Article examines the multifaceted ways in which citizenship operates as an organizing principle within the complex of rules and norms governing transnational human mobility, including how the increasing acceptance of dual nationality status and the emergence of citizenship-by-investment schemes reverberate throughout the legal infrastructure and create new pathways for elite mobility. Using citizenship as an exploratory lens, the Article thereby seeks to theoretically complement and nuance existing scholarship in migration and mobility studies, arguing that physical space remains the dominant structure for human mobility. As we show, legal infrastructures reconfigure access to human mobility in ways that simultaneously fragment and compress physical space as it pertains to transnational movement.

Nudging is a policy tool that steers people’s behavior through noncoercive psychological pushes. This has consequences for people’s lives to varying degrees. For example, the nudge of a sticker of a fly in a urinal encourages peeing inside a urinal, while an organ donation default brings people to agree to donating their organs after their decease. Governments do not yet systematically examine which nudges have to be subjected to all safeguards of the rule of law—for example, parliamentary control, judicial review, or compliance with legal principles such as proportionality. This article argues that a legal doctrine is necessary to carry out this examination. Moreover, it contributes to the development of such a doctrine, using the approach of the European Court of Human Rights as a source of inspiration. The doctrine consists of a “de minimis” principle for nudges: Public institutions only need to ensure that a nudge complies with rule of law safeguards when the nudge has substantial consequences. In addition, the doctrine includes a criterion to determine which nudges have such substantial consequences. In particular, it is argued that a nudge should be subjected to at least some safeguards when it has a serious effect on people’s autonomy.

Despite the shock provoked by the Snowden revelations, mass surveillance is still a reality in the EU. However, over the past few years, it has been possible to observe a gradual constitutionalization of these practices. This Article maps the ongoing process of progressively defining the constitutional limits and societal affordances of mass surveillance in the EU by focusing on the three main actors who contribute to it. First, this Article presents civil society as the propeller of this trend. Civil society not only advocated for a ban on general surveillance systems in the aftermath of the Snowden revelations, but also promoted a series of strategic litigations to challenge state surveillance practices at national and EU levels. Second, it analyses CJEU case law as the main constitutionalizing engine of this process. The Court pragmatically ascertained that an absolute prohibition of mass surveillance did not appear to be a realistic solution and put significant effort into actively defining the legal boundaries of these practices by striving to find an equilibrium between Member State interests and citizens’ fundamental rights. Third, it considers the approaches taken by national legislators to be a slowing factor. States are still reluctant to incorporate the constitutional standards progressively developed by courts despite the now significant body of judicially created parameters in the field.