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.

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.

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.

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.

In the rise of authoritarian trends in Hungary and in Poland, public broadcasters play a crucial role in supporting the political forces in power. There are many examples which show how public broadcasters influence public opinion by selective coverage and distorted remit. While the problem of media plurality is often commented upon from the perspective of fundamental rights or the rule of law, another relevant perspective is that of internal market and economic law. The article analyses how can one make sure that the use of public funds to support State media does not lead to the distortion of citizens’ rights to be informed. The article argues that the current EU State Aid framework allows the balance of Member States’ prerogatives in respect to media freedom and content with the risk of EU-imposed censure. The article analyses the place of media pluralism in EU law and demonstrates that media pluralism has been integrated within the internal market framework, including an analysis of recent amendments to the Audiovisual Media Services Directive. Then, it focuses on the relationship between media pluralism, public service broadcasting and EU State aid law.

The odious debt doctrine was envisaged by the Russian jurist Alexander Sack as an exception to the passing rule of a debt in case of state and government succession. An analysis of the practice indicates that this exception was often accompanied by some equitable solution. Although the 1983 Vienna Convention did not acknowledge the doctrine, the equitable distribution of assets and liabilities as a method of settling disputes may allow an application of the doctrine in disguise. This equitable method of settling could come into play if the doctrine found application beyond the strict boundaries of state succession. Such a step would imply the formalization of the doctrine in national legislation, with the result that a loan agreement tainted with odiousness would be illegal and unenforceable. Nevertheless, in common law countries, the laws of which usually govern financial transactions, a claim for recovering what transferred under an illegal contract could be denied based on public policy considerations. This denial of restitution would refrain these countries, traditionally sensitive to creditors’ rights, from acknowledging the doctrine in their legal systems. To overcome this impasse, the formalization of the doctrine should include an equitable approach based on the benefit for the population. This equitable approach would reflect the practice of state and government succession on which the doctrine is usually grounded.

Tactical litigation is a reality of the adversarial litigation framework that is currently in place. However, there is a difference between the tactical litigation of choosing a forum which may have more favorable law or be more convenient and choosing a forum with the intent to drive the opposing party to failure. The latter has been the issue with some of the tactical litigation that has occurred under the European Union’s framework of lis pendens. While the Recast Brussels I Regulation has alleviated some of those issues, it has not addressed all of them. While some scholars have argued that these issues of lis pendens may be answered by introducing the common law doctrine of forum non conveniens to these proceedings, that is not the case. This Article explores the pitfalls of lis pendens and forum non conveniens and ultimately finds that forum non conveniens is unable to solve the issues lis pendens creates in tactical litigation. Furthermore, the Article finds that forum non conveniens, inherently and acting as it should, has its own problems which echo lis pendens’ own issues in the European Union. Furthermore, forum non conveniens is simply incompatible with the policies the European Union implemented with lis pendens. Ultimately, forum non conveniens is unable to answer the problems lis pendens has created and solutions must be found from within the European Union’s own civil system.

In this paper, I will examine the legal standards of gender persecution and the evolving descriptor gender apartheid as a way to describe the status of women in Afghanistan. The paper also examines other complementary forms of legal accountability procedures to vindicate Afghan women’s rights and hold perpetrators accountable under crimes against humanity. Although the current locus of the paper is focused on Afghan women, it has larger implications for all other crimes of gender persecution.

The wide and deep participation into legislation is a crucial means for the CCP to govern the Chinese Party-state. This Article examines how the CCP as a legislating Party acts in the state legislation as well as in its own internal legislation and what influences the Party’s legislating behaviors bring to the socialist rule of law. By a positivist and typological survey, the Article divides the intra-party regulations into three kinds, namely the pure intra-party regulations, the state-parallel intra-party regulations as well as the supra-state intra-party regulations. On this basis, the Article further analyzes how different types of the intra-party regulations influence the state legislation and, ultimately, the socialist rule of law. Finally, this Article points out that the overexpansion of the intra-party regulations leads to the partisanization of the state legislation and the legalization of the Party legislation which renders the existing separation of the Party and the state feebler and the socialist rule of law could afford more pressures in a foreseeable future.

The promise of artificial intelligence (AI) is increasingly invoked to ‘revolutionize’ practices of global security governance, including in the domain of border control. Legal scholarship tends to confront these changes by foregrounding the rule of law challenges associated with nascent forms of governance by data, and by imposing new regulatory standards. Yet, little is known about how these algorithmic systems are already reconfiguring legal norms and processes, while generating novel security techniques and practices for knowing and governing “risk” before the border. Exploring these questions, this article makes three important contributions to the literature. On an empirical level, it provides an original socio-legal study of the processes constructing and implementing Cerberus – an AI-based risk-analysis platform deployed by the UK Home Office. This analysis provides unique insight into the institutional frictions, legal mediations and emergent governance formations involved in the introduction of this algorithmic bordering system. On a methodological level, the article directly engages with the focus on ‘legal infrastructures’ in this special issue. It uses an original approach (infra-legalities) which follows how legal and infrastructural elements are relationally and materially tied together in practice. Rather than trying to conceptually settle the relation between law and infrastructure – or qualifying law as a sui generis infrastructure – the article traces incipient modes of governmentality and regulatory ordering in which both legal and infrastructural elements are metabolized. In its account of Cerberus, the article analyzes this emergent composition as a dispositif of speculative suspicion. Finally, on a normative and political level, the article signals the significant stakes involved in this algorithmic enactment of risk. It shows how prevailing regulatory tropes revolving around ‘debiasing’ and retention of a ‘human in the loop’ offer a limited register of remedy, and work to amplify the reach of Cerberus. We conclude with reflections on critiquing algorithmic systems like Cerberus through the emergent infrastructural relations they enact.

Digital platforms and social media have expanded the ways in which individuals can exercise their right to freedom of expression and obtain and diffuse information. At the same time, they have become a principal means for haters to express and spread their hate in ways that would have been unthinkable some years ago. Responsive to the challenge, the EU has progressively developed a broad range of instruments and tools to counter online hate speech. This chapter discusses the key characteristics of the EU arrangements made to fight digital hate speech, shedding light on what is a multi-faceted and daunting regulatory task.

This Article examines how private economic actors mobilize EU law to pursue broader legal, political, economic, or societal ends. It studies the strategic nature of corporate litigation before the Court of Justice of the EU in the context of the EU Emissions Trading System, a prime illustration of neglected strategic climate litigation. Corporate cases against the ETS have so far fallen under the radar of scholarship focused on EU strategic climate litigation. Such underrepresentation is linked to a double bias in scholarship, favoring high-profile climate cases that advance public interest causes and progressive agendas. Applying a normatively open definition of strategic litigation and actor-centered methodological approach, the Article brings to light features of corporate strategic litigation in EU law which otherwise go unseen. It offers empirical observations into boundary-testing behavior by private economic actors and the notion of a private generalizable interest, untangling strategic climate litigation by private economic actors as overlooked proponents in Court. The Article finally distinguishes a selection of legal strategies through which corporate actors mobilize EU law, such as instances of coordinated litigation; futile and seemingly routine challenges initiated before the Court to test judicial waters; and the use of litigation as a political advocacy tool.

The European Union’s Digital Services Act (DSA) introduces a new regulatory approach to address the societal harms of online platforms: Systemic risk assessments. While a core component of the DSA, the regulation only outlines the standards and processes governing systemic risk assessments in broad strokes. It remains unclear what these systemic risk assesments will entail in practice. This Article develops a proposal of how systemic risk assessments should be implemented. It situates systemic risk assessments as a critical step toward platform accountability as they address societal harms, while existing approaches, such as remedy mechanisms, only protect user rights. Engaging with intangible harms and regulating speech and public discourse, risk assessments also entail significant challenges. Conventional reference points for content moderation regulation, such as terms and conditions, contractual freedom, fundamental rights and expertise, do not provide practical and legitimate bases to concretize risk assessment obligations. Public actors, such as the European Commission, should refrain from defining substantive standards, too, as they are directly bound by freedom of expression guarantees. Instead, the Article argues, the Commission should foster a procedural framework, a “virtuous loop,” which empowers civil society and allows it to specify and refine the standards governing systemic risks over time. Developing this framework, the Article explains how systemic risk assessment can fix “multistakeholderism,” and “multistakeholderism,” in turn, can help make systemic risk assessments work.

For strategic litigation, the existence of independent judicial institutions is a prerequisite. In this Article, based on the case of Poland, I analyze what happens when some domestic judicial institutions are weakened and how this affects the ability of different stakeholders to engage in strategic litigation. I argue that strategic litigation was an important tool used by civil society and crucial for countering democratic backsliding in Poland in 2015–2023. In addition to traditional actors involved in strategic litigation in Poland, new ones have joined—such as the Human Rights Commissioner (the “Ombudsman”) or increased their involvement—such as corporate actors. Also, the prosecution office, controlled by the populist government, became active in litigation conducted by right-wing NGOs. Paradoxically, the rule of law crisis also resulted in the popularization of strategic litigation before the Court of Justice of the European Union and some domestic courts, which began to apply the Constitution directly.

The aim of this Article is to present a general and nonexhaustive overview of the legal infrastructures that configure cross-border movement in Latin America. It draws on the mobility approach, regime interaction, and—legal—infrastructural studies, which, together, provide a tentative analytical framework for the legal infrastructuring processes that we observe around border regulation in Latin America, an, arguably, understudied but core mobility hotspot. We present—in the form of several vignettes—different outcomes of infrastucturing processes which either enable or impede cross border mobility. This approach reveals the dynamic nature of law surrounding mobility and its apparent contradictions and unintended consequences. It concludes that the shift to an infrastructural account of the law can help us gain a more holistic and, therefore, more realistic understanding of how the law works over time, how it infrastructures crossborder mobility beyond and sometimes against states’ intentions and expectations, and how people on the move have more agency than the snapshot image of—forced—migration law conveys.

This article discusses a currently hypothetical, but increasingly more likely, situation where Article 7(2) TEU is activated against more than one backsliding Member State at the same time. To prevent the offending Member States from teaming up to block the sanction mechanism, an extension of the exclusion from voting in Article 354 TFEU beyond “the Member State in question” is likely to be considered by the CJEU. However, such a use of this mechanism is contrary to the effet utile of Article 7 TEU, if interpreted in the context of trust. This interdisciplinary study uses insights from trust theory to demonstrate that the outcome will inevitably be further distrust and fragmentation between the EU and its Member States. This is why Article 7(2) TEU is not meant to be (and ought not to be) used against more than one Member State at the same time in this manner. This impression is reinforced considering that the existing legal solutions for implementing the extension of the exclusion from voting under Article 354 TFEU violate general principles of EU law and will therefore cause further distrust and fragmentation.

In an international social rights debate disproportionately focused on English-speaking countries, redundant emphasis has been placed on justiciability. While constitutionalization does challenge stable relations between powers, especially in the post-colonial and developing world, solid insights for a workable interpretative method can be derived from continental Europe, where the difficulties typically associated with justiciability have long been settled. The constitutions of Italy, Germany, and Portugal take socioeconomic democracy seriously, tempering socialist claims and refuting libertarian stances, and have managed to spur a legitimate judicial increment of substantive equality. Through a threefold comparison, this paper describes the peculiarities of these fundamental texts across the spectrum of possible constitutional design choices, and draws from comparative constitutional caselaw to highlight a cross-national convergence on a set of interpretative standards. These blend together a strong safeguard of legislative discretion with justiciable minimal guarantees, and a value-assertive orientation of balancing coextensive with the integrationist function of constitutionalized social and economic rights.