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The Blind Men and the Elephant: An Empirical Analysis of the Social Sciences in International Law
(2024)
What is the role of the social sciences in international law? This article maps how international law interacts with the social sciences, including its concepts, findings, methods, and epistemologies. It provides a first encompassing genealogy of social science references in six renowned international law journals, including the American, Asian, European, Leiden, and Nordic Journal of International Law as well as the British International and Comparative Law Quarterly, by using a corpus linguistic approach that encompasses more than 15,000 documents from 1907 to 2022. Moreover, it explores how structural factors related to the institutionalization and funding of certain strands of social science-inspired international law scholarship have influenced regional and temporal patterns in Europe, Germany, and Australia.
Building on feminist and postcolonial theoretical approaches across International Relations (IR) and security studies, this Special Issue advances an emerging research agenda within EU studies by shedding light on the gendered and racialised logics of EU security and their links to colonial histories and practices. Together, the contributions to this Special Issue demonstrate how EU security is intrinsically connected to and constituted by histories of colonialism, racism and patriarchy. At the same time, they also highlight how the colonial, racialised and gendered dynamics that underpin EU security and that are mobilised by the EU, its institutions and member states are always complex and shifting. Importantly, they do so by decentring our analysis of EU security moving our focus often away from the EU and towards different, somewhat unexpected sites and geographical locations of EU security. The current war in Ukraine underwrites the need for more historical, contextual and decentred work on EU security, while also highlighting the necessity to reflect on dominant practices of knowledge production and the experiences of people living in and with war through a feminist and postcolonial lens
4.2 Interdisciplinarity
(2024)
As a field of practice, international human rights law (IHRL) is in constant motion. The four books under review explore the legal, political, and civic dynamics that continuously shape and reshape this vibrant area of law. In this Essay, I underscore two important trends in contemporary IHRL scholarship that these books highlight. First, these works share a strong emphasis on agency, understood as human action that makes a difference in the world, be it the agency of individuals, domestic civil society organizations, transnational organizations, or courts. Highlighting agency, rather than overarching political, economic, and social structures, in turn shifts the attention from human rights law and doctrine “in the books” to an understanding of human rights law as a purposive and dynamic practice.
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.
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.
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.
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.
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.
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.
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
Resettlement
(2023)