@article{Steininger, author = {Steininger, Silvia}, title = {Where is the l(ove)? Excavating law and labour in The Redress of Law}, series = {European Law Open}, volume = {2}, journal = {European Law Open}, number = {1}, publisher = {Cambridge University Press}, issn = {2752-6135}, doi = {10.1017/elo.2023.17}, pages = {151 -- 161}, abstract = {In his monograph The Redress of Law, Emilios Christodoulidis provides a sophisticated genealogical study of the emergence of total market thinking in Europe. With market constitutionalism having sidelined political constitutionalism, the potential of law to organise the political community is significantly restricted. By examining the commodification of labour, processes of bargaining, unemployment, and strikes, Christodoulidis demonstrates the destructive consequences of law in the service of market rationalities as well as its potential for strategic action to build collective identity in the EU (European Union). Yet, I argue that this book comes with two significant blind spots, namely a dated understanding of both law and labour. First of all, Christodoulidis's systems theoretical understanding of law is neglecting the material conditions that law continuously re-produces in the course of globalization. Secondly, his vision of labour remains rather traditional, focused on unionised, white, and male workers. Both elements are central pillars of his analysis but do not reflect the current reality of the 21st century. In this Article, I challenge his conceptualization by situating his work in recent research on the role of law and labour regulation in global capitalism.}, language = {en} } @article{Steininger, author = {Steininger, Silvia}, title = {Talks, Dinners, and Envelopes at Nightfall: The Politicization of Informality at the Bundesverfassungsgericht}, series = {German Law Journal}, volume = {24}, journal = {German Law Journal}, number = {8}, publisher = {Cambridge University Press}, issn = {2071-8322}, doi = {10.1017/glj.2023.72}, pages = {1300 -- 1322}, abstract = {The German Federal Constitutional Court (BVerfG) has for decades used informality to establish, build, and protect its authority. Yet, as the political landscape has shifted in recent years, in particular since the end of the Merkel-era Grand Coalition and the rise of the right-wing populist AfD, several longstanding informal practices and institutions have become politicized. Those concern extra-judicial activities of judges, regular informal meetings between the Court and the government, and privileged early access to the Court's press releases for certain journalists. This Article first introduces various forms of informality that the BVerfG employs in its internal self-administration and the judicial-legal culture in general, before tracing how, why, and by whom the three aforementioned practices of informality are challenged. Ultimately, this Article analyzes how the Court and its judges respond to the politicization of informality, and in particular how it triggered processes of formalization of judicial behavior and changes in institutional communication.}, language = {en} } @article{Palmiotto, author = {Palmiotto, Francesca}, title = {When Is a Decision Automated? A Taxonomy for a Fundamental Rights Analysis}, series = {German Law Journal}, volume = {25}, journal = {German Law Journal}, number = {2}, publisher = {Cambridge University Press}, issn = {2071-8322}, doi = {10.1017/glj.2023.112}, pages = {210 -- 236}, abstract = {This Article addresses the pressing issues surrounding the use of automated systems in public decision-making, specifically focusing on migration, asylum, and mobility. Drawing on empirical data, this Article examines the potential and limitations of the General Data Protection Regulation and the Artificial Intelligence Act in effectively addressing the challenges posed by automated decision-making (ADM). The Article argues that the current legal definitions and categorizations of ADM fail to capture the complexity and diversity of real-life applications where automated systems assist human decision-makers rather than replace them entirely. To bridge the gap between ADM in law and practice, this Article proposes to move beyond the concept of "automated decisions" and complement the legal protection in the GDPR and AI Act with a taxonomy that can inform a fundamental rights analysis. This taxonomy enhances our understanding of ADM and allows to identify the fundamental rights at stake and the sector-specific legislation applicable to ADM. The Article calls for empirical observations and input from experts in other areas of public law to enrich and refine the proposed taxonomy, thus ensuring clearer conceptual frameworks to safeguard individuals in our increasingly algorithmic society.}, language = {en} } @article{PalmiottoOzkul, author = {Palmiotto, Francesca and Ozkul, Derya}, title = {Contesting automation: the NewTech Litigation Database}, series = {Forced Migration Review}, journal = {Forced Migration Review}, number = {73}, abstract = {Informed litigation is vital to uphold the rights of migrants subject to automated decision-making. This article introduces the NewTech Litigation Database, a tool for anyone seeking to contest the use of automated systems in migration and asylum processes.}, language = {en} } @article{PalmiottoGonzalez, author = {Palmiotto, Francesca and Gonz{\´a}lez, Natalia Men{\´e}ndez}, title = {Facial recognition technology, democracy and human rights}, series = {Computer Law \& Security Review}, volume = {50}, journal = {Computer Law \& Security Review}, publisher = {Elsevier}, issn = {0267-3649}, doi = {10.1016/j.clsr.2023.105857}, abstract = {On 4 July 2023, the Third Section of the European Court of Human Rights (ECtHR) delivered the first judgment on the compatibility of facial recognition technology with human rights in Glukhin v. Russia. The case concerned the use of facial recognition technology (FRT) against Mr Glukhin following his solo demonstration in the Moscow underground. The Court unanimously found a violation of Article 8 (right to respect for private life) and Article 10 (freedom of expression) of the European Convention of Human Rights (ECHR). Regarding FRT, the Court concluded that the use of highly intrusive technology is incompatible with the ideals and values of a democratic society governed by the rule of law. This case note analyses the judgment and shows its relevance in the current regulatory debate on Artificial Intelligence (AI) systems in Europe. Notwithstanding the importance of this decision, we argue that the Court has left crucial questions unanswered.}, language = {en} } @article{Gruev, author = {Gruev, Ivo}, title = {Responsive Judicial Review in Kelsenian Constitutional Courts: The Impeding Effects of Limited Standing and Formalism}, series = {Review of Central and East European Law}, volume = {48}, journal = {Review of Central and East European Law}, number = {3-4}, publisher = {Brill}, issn = {0925-9880}, doi = {10.1163/15730352-bja10085}, pages = {426 -- 444}, abstract = {This paper is concerned with the question of whether constitutional systems that have adopted the centralised, "Kelsenian", model of judicial review, which is prevalent in Eastern Europe, can engage in "responsive judicial review" (Dixon, 2023). It focuses on two features that can be associated with the constitutional courts created in this region after the end of communism, which, the paper argues, can significantly hamper their capacity to identify and counter democratic blockages. These are: (1) their limited standing rules that prioritise the access of political bodies to constitutional courts, and (2) the latter's commitment to formalism, which can prevent judges from engaging with the structural and contextual issues that are causing a democratic blockage.}, language = {en} } @article{DemirGuerselTheilen, author = {Demir-G{\"u}rsel, Esra and Theilen, Jens T.}, title = {Framing Europe in Human Rights, Framing Human Rights in Europe: Authoritarianism, Migration, and Climate Change in the Council of Europe}, series = {ESIL Reflections}, volume = {12}, journal = {ESIL Reflections}, number = {4}, language = {en} } @article{DemirGuersel, author = {Demir-G{\"u}rsel, Esra}, title = {Silvia von Steinsdorff, Ece G{\"o}ztepe, Maria Abad Andrade, and Felix Petersen. The Constitutional Court of Turkey - Between Legal and Political Reasoning. Baden-Baden, Nomos 2022, 720 Seiten, ISBN 978-3-8487-4632-3, € 149.-.}, series = {Zeitschrift f{\"u}r Rechtssoziologie}, volume = {43}, journal = {Zeitschrift f{\"u}r Rechtssoziologie}, number = {2}, issn = {2366-0392}, doi = {10.1515/zfrs-2023-1015}, pages = {386 -- 391}, language = {en} } @article{Auz, author = {Auz, Juan}, title = {The Political Ecology of Climate Remedies in Latin America and the Caribbean: Comparing Compliance between National and Inter-American Litigation}, series = {Journal of Human Rights Practice}, volume = {16}, journal = {Journal of Human Rights Practice}, number = {1}, publisher = {Oxford University Press}, issn = {1757-9627}, doi = {10.1093/jhuman/huad057}, pages = {182 -- 207}, abstract = {The climate crisis will continue to affect human and natural systems across Latin America and the Caribbean (LAC). Undoubtedly, this jeopardizes entire communities' enjoyment of human rights. In that context, the Inter-American Human Rights System (IAHRS) is expected to respond, particularly since its organs have jurisdiction to order remedies over most LAC countries, provided they determine a rights violation. Despite the growing number of domestic human rights-based climate cases in the region, the organs of the IAHRS have yet to adjudicate and order remedies in a case concerning the climate crisis. Against this backdrop, this article inquires how to understand climate remedies from a political ecology perspective to capture the LAC climate litigation experience. Additionally, the article asks what the challenges of implementing such remedies may be. To answer these questions, first, it compares the remedial approaches of domestic courts in six finally decided climate-related cases with those of the Inter-American Court of Human Rights (IACtHR) in 'anti-extractivist' cases. Second, it applies a political ecology lens to understand the elements that might hinder the implementation of the identified remedies. The article argues that the socioeconomic cost for States largely determines remedial compliance in domestic climate litigation and the IACtHR's anti-extractivist litigation. Ultimately, the aim is to anticipate the future of climate remedies and their effectiveness at the IACtHR based on present climate litigation in LAC.}, language = {en} } @article{Baranowska, author = {Baranowska, Grażyna}, title = {Protecting the Good Name of the Nation as Memory Law}, series = {European Constitutional Law Review}, volume = {19}, journal = {European Constitutional Law Review}, number = {4}, publisher = {Cambridge University Press}, issn = {1574-0196}, doi = {10.1017/S1574019623000214}, pages = {623 -- 641}, abstract = {Memory laws - Protecting the good name of the nation - de facto memory laws - Prohibiting statements about the past - Article 301 of the Turkish Criminal Code - Protecting the good name of Poland and the Polish nation - Protecting the good name of the nation as de facto memory laws - Role of organisations in implementing the laws - Rule of law - Independence of the judiciary - European Court of Human Rights - Chilling effect - European memory politics}, language = {en} } @incollection{Welfens, author = {Welfens, Natalie}, title = {Resettlement}, series = {Flucht- und Fl{\"u}chtlingsforschung: Handbuch f{\"u}r Wissenschaft und Studium}, booktitle = {Flucht- und Fl{\"u}chtlingsforschung: Handbuch f{\"u}r Wissenschaft und Studium}, editor = {Scharrer, Tabea and Glorius, Birgit and Kleist, J. Olaf and Berlinghoff, Marcel}, publisher = {Nomos Verlagsgesellschaft mbH \& Co. KG}, isbn = {9783748921905}, doi = {10.5771/9783748921905}, publisher = {Hertie School}, pages = {489 -- 496}, language = {de} } @incollection{ZieglerVolou, author = {Ziegler, Katja S. and Volou, Aristi}, title = {Human rights and general principles: beyond the EU Charter of Fundamental Rights}, series = {Research Handbook on General Principles in EU Law}, booktitle = {Research Handbook on General Principles in EU Law}, editor = {Ziegler, Katja S. and Neuvonen, P{\"a}ivi J. and Moreno-Lax, Violeta}, publisher = {Edward Elgar Publishing}, isbn = {9781784712389}, doi = {10.4337/9781784712389.00027}, publisher = {Hertie School}, pages = {327 -- 349}, abstract = {This chapter discusses the dialectic relationship of general principles and the evolution of human rights in the EU legal order. Human (or fundamental) rights are of specific signifcance for general principles as an area of reference in a number of ways: in regard to the methodology of defining and identifying general principles; their link to constitutional values of the EU, the relationship between different sources of human rights in the EU; the relationship between unwritten general principles and a codified source; the specific, active and multidimensional dynamics of general principles in the context of fundamental rights; the relationship of general principles in the area of fundamental rights with their codification in the EU Charter on Fundamental Rights; and their possible continued relevance for courts in adjudicating human rights in the UK in post-Brexit.}, language = {en} } @incollection{KoeybaşıTurkut, author = {K{\"o}yba{\c{s}}{\i}, Serkan and Turkut, Emre}, title = {Turkey}, series = {The I·CONnect-Clough Center 2019 Global Review of Constitutional Law}, booktitle = {The I·CONnect-Clough Center 2019 Global Review of Constitutional Law}, editor = {Albert, Richard and Landau, David and Faraguna, Pietro and Drugda, Simon}, publisher = {Clough Center for the Study of Constitutional Democracy}, isbn = {978-0-692-15916-3}, publisher = {Hertie School}, pages = {358 -- 362}, language = {en} } @incollection{Turkut, author = {Turkut, Emre}, title = {The Turkish Post-Coup Emergency and European Responses: Shortcomings in the European System Revisited}, series = {European Yearbook on Human Rights 2022}, booktitle = {European Yearbook on Human Rights 2022}, editor = {Czech, Philip and Heschl, Lisa and Lukas, Karin and Nowak, Manfred and Oberleitner, Gerd}, publisher = {Intersentia}, isbn = {9781839703447}, doi = {10.1017/9781839703447.016}, publisher = {Hertie School}, pages = {445 -- 482}, abstract = {This contribution takes Turkey's use of the derogation mechanism in the aftermath of the failed military coup of 15 July 2016 as a springboard to critically address the operation and the fallacies of the contemporary European derogation regime. The assessment will reveal whether the European system of human rights protection has succeeded in adopting an adequate and viable approach that can counterbalance the increased leeway accorded to derogating states, and formulate safeguards to mitigate human rights abuses. The contribution concludes by providing a road map proposal for adequate oversight marked by rigorous scrutiny of derogation claims that can be described as a 'consultation and cooperation process'. This process would place the Secretary General of the Council of Europe in a more active and operationally focused position to influence state decisions, to counterbalance the increased leeway accorded to derogating states, and to formulate safeguards to mitigate human rights abuses.}, language = {en} } @incollection{SherwoodLemayCostello, author = {Sherwood, Angela and Lemay, Isabelle and Costello, Cathryn}, title = {IOM's Immigration Detention Practices and Policies: Human Rights, Positive Obligations and Humanitarian Duties}, series = {IOM Unbound?: Obligations and Accountability of the International Organization for Migration in an Era of Expansion}, booktitle = {IOM Unbound?: Obligations and Accountability of the International Organization for Migration in an Era of Expansion}, editor = {Bradley, Megan and Costello, Cathryn and Sherwood, Angela}, publisher = {Cambridge University Press}, isbn = {9781009184175}, doi = {10.1017/9781009184175.016}, publisher = {Hertie School}, pages = {360 -- 396}, abstract = {This chapter analyses IOM's practices and policies on immigration detention from the 1990s to date, spanning a period of significant change in its approaches to detention. The chapter first distills pertinent international human rights law (IHRL) on migration-related detention, and then examines IOM's normative statements concerning detention. It shows that while IOM generally emphasises international legal standards, it also tends to stress states' 'prerogative' to detain, frame alternatives to detention (ATDs) as a desirable option rather than a legal obligation, and weave an operational role for itself, notably through assisted voluntary returns (AVRs). The chapter then interrogates IOM's involvement in detention through four case studies. These reveal not only IOM's changing role regarding detention, but its enduring part in a global system whereby powerful states and regions seek to contain protection seekers 'elsewhere.' The chapter concludes that, without constitutional and institutional change to ensure it meets its positive human rights obligations, and deeper critical reflection on its humanitarian duties, IOM's practice risks expanding and legitimating detention.}, language = {en} } @article{WelfensBonjour, author = {Welfens, Natalie and Bonjour, Saskia}, title = {Seeking Legitimacy Through Knowledge Production: The Politics of Monitoring and Evaluation of the EU Trust Fund for Africa}, series = {JCMS: Journal of Common Market Studies}, volume = {61}, journal = {JCMS: Journal of Common Market Studies}, number = {4}, publisher = {Wiley}, issn = {0021-9886}, doi = {10.1111/jcms.13434}, pages = {951 -- 969}, abstract = {Monitoring and evaluation (M\&E) is a form of expert knowledge that is central to migration governance. This article analyses M\&E of the EU Trust Fund for Africa (EUTF), created in 2015 to 'fight the root causes of migration'. Combining institutionalist accounts with practice theory, we examine whether M\&E knowledge production served the instrumental purpose of assessing policy impact or mainly legitimated particular policy actors and positions. We find that M\&E did not produce evidence on whether the EUTF met its objectives. However, in the context of the EU's multiple crises, M\&E knowledge production served to seek legitimacy not only for the EUTF, but also for the further fusion of development and migration policies, and for the EU as a competent and transparent actor. Our analysis highlights that knowledge use and knowledge production are connected, and that M\&E knowledge politics allow for the legitimation of both actors and policies.}, language = {en} } @article{Turkut, author = {Turkut, Emre}, title = {Emergency Powers, Constitutional (Self-)Restraint and Judicial Politics: the Turkish Constitutional Court During the COVID-19 Pandemic}, series = {Jus Cogens}, volume = {4}, journal = {Jus Cogens}, issn = {2524-3977}, doi = {10.1007/s42439-022-00064-7}, pages = {263 -- 284}, abstract = {This paper investigates the Turkish Constitutional Court (TCC)'s treatment of legal challenges brought against Turkey's legal responses to the COVID-19 pandemic. Drawing on a detailed examination of the TCC's institutional features, political origins and jurisprudential trajectory, and taking three politically salient judgments of the TCC concerning Turkey's executive-dominated pandemic control as the point of departure, the paper argues that the TCC chose to exercise judicial restraint both in protecting fundamental rights and reviewing pandemic policies of the executive. It also argues that the TCC's judicial restraint during the pandemic was simply the re-manifestation of its 'play-it-safe' strategy — a judicial stance the TCC willingly adopted in the aftermath of the 2016 attempted coup despite possessing strong constitutional powers of judicial review, and its established attitude of assertive scrutiny in the past. From a more theoretical perspective, the analysis also explores how the passive role to which the TCC is consigned in an increasingly authoritarian regime since the 2016 failed coup relates to the global phenomenon of judicialization of authoritarian politics.}, language = {en} } @phdthesis{Auz, author = {Auz, Juan}, title = {Dissecting the Inter-American Human Rights System in the Age of Climate Change}, school = {Hertie School}, abstract = {This dissertation examines, from a socio-legal approach, the implications of the climate crisis on the adjudicative functions of the Inter-American Human Rights System (IAHRS). In particular, it focuses on three general aspects of the adjudicative building blocks: access to the climate litigation process, interpretation of the relevant legal norms, and the design and impact of the remedies awarded. To that end, this dissertation comprises six papers addressing one or more of said general aspects. The first paper is about accessing the phenomenon of climate litigation itself. Mapping the legal opportunity structures of Latin America and the Caribbean (LAC) reveals how human rights-based climate litigation is developing. The multiplication of cases and the inchoate successes are partly explained by the IAHRS's legal standards in the applicant's arguments. However, it contrasts such development by laying bare potential barriers arising from the region's extractivist economies and hyper-presidential constitutional designs. The second and third papers situate the IAHRS in the scholarly descriptions of international human rights and environmental law. It argues that the IAHRS is a relatively progressive space for protecting human rights because of its constant interaction with marginalised communities in LAC. The resultant interpretation of human rights can be crucial in a climate litigation case in the IAHRS. However, filling in the details for the content of the right to a healthy environment and extraterritorial obligations is still pending. The fourth, fifth and sixth papers discuss the tensions between climate litigation and justice in Global South jurisdictions, such as LAC. They explore why climate justice dimensions might be at odds with the results of a successful climate ruling that orders a State to remedy a plaintiff when such a State did not contribute meaningfully to generating and perpetuating the climate crisis in the first place. This tension is transposed to the IAHRS while adding the difficulty of non-compliance with systemic remedial orders. The papers explore how the organs of the IAHRS could address these tensions and reimagine remedies for the climate crisis.}, language = {en} } @article{Wriedt, author = {Wriedt, Vera}, title = {Rezension: The Prohibition of Collective Expulsion in International Law}, series = {Kritische Justiz}, volume = {54}, journal = {Kritische Justiz}, number = {2}, publisher = {Nomos Verlag}, issn = {0023-4834}, doi = {10.5771/0023-4834-2021-2-247}, pages = {255 -- 259}, language = {de} } @article{Galand, author = {Galand, Alexandre Skander}, title = {The Nature of the Rome Statute of the International Criminal Court (and its Amended Jurisdictional Scheme)}, series = {Journal of International Criminal Justice}, volume = {17}, journal = {Journal of International Criminal Justice}, number = {5}, issn = {1478-1387}, doi = {10.1093/jicj/mqz051}, pages = {933 -- 956}, abstract = {This article shows that in the 20 years following the adoption of the Rome Statute of the International Criminal Court its nature has surfed on three waves. Building upon the Court's case law on the principle of legality and the immunity of state officials from non-party states, it shows that the Statute was initially conceived to be of universal nature, transcending the interests of all states. However, following a series of pushbacks, the Court revised this case law to rightly acknowledge that its Statute is first of all a multilateral treaty regulating the conduct committed in the territory and by nationals of its states parties. Yet, this second wave maintained the potential for the Statute to be universally applicable when the Court's jurisdiction is based on ad hoc declarations of acceptance or Security Council referrals. However, the journey to amend the Statute to define the crime of aggression and new war crimes might have made the prospects for universal application dependent upon universal ratification. This article argues that this third wave certainly evinces a novel shift towards state consent, but that direct and indirect forms of consent can still premise the Court's jurisdiction over situations concerning states which have not ratified the Statute or its amendments.}, language = {en} }