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Tracing Transparency: Public Governance of Algorithms and the Experience of Contact Tracing Apps
(2022)
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)
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.
Turkey
(2020)
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.
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.
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.
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.
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.
Sovereignty, Technology and Governance after COVID-19: Legal Challenges in a Post-Pandemic Europe
(2022)
This book imagines how Europe might re-organise and re-group after the COVID-19 crisis by assessing its effectiveness when responding to it. For this purpose, it directs its focus on: i) sovereignty challenges; ii) technological challenges and iii) governance challenges. These three challenges do not present hermetic legal problems, they intersect and connect on many levels. The book shows this by examining the relationship between public and private power, and illustrating how the rise of technocratic authority is deeply connected to the choice of technological solutions. It illustrates how constitutional decisions taken during states of emergency give rise to private governance challenges related to cybersecurity and data protection. Experts from the fields of EU governance, data protection, and technology explore these questions to provide answers to how the EU might develop in the future.
It is an era of expansion for the International Organization for Migration (IOM), an increasingly influential actor in the global governance of migration. Bringing together leading experts in international law and international relations, this collection examines the dynamics and implications of IOM's expansion in a new way. Analyzing IOM as an international organization (IO), the book illuminates the practices, obligations and accountability of this powerful but controversial actor, advancing understanding of IOM itself and broader struggles for IO accountability. The contributions explore key, yet often under-researched, IOM activities including its role in humanitarian emergencies, internal displacement, data collection, ethical labour recruitment, and migrant detention. Offering recommendations for reforms rooted in empirical evidence and careful normative analysis, this is a vital resource for all those interested in the obligations and accountability of international organizations, and in the field of migration.
This working paper aims to examine the ‘displacement regime complex’, displacement referring to both internally and externally displaced persons, taking into account the competing roles of UNHCR and IOM in both spheres of activity. The title of the paper ‘Reform for protection’, aims to outline institutional reforms that aim to increase protection for the displaced, informed by binding universal human rights standards, and institutional principles relating to accountability and participation of most affected populations.
This report explores the refugee recognition regime in Niger. Quantitatively, Niger is the most important transit and refugee host country in West Africa. Niger is also at the forefront of debates on migration management in the region, as it is presented by International Organisations and states of the Global North as an alternative destination to the limited refugee protection in Libya and North Africa. Against the background of a relative dearth of literature on refugee recognition regimes (RRR) in (West) Africa and generally the Global South, this study draws on ethnographic field research and desk research to analyse the norms, institutions, modes of recognition, quality of recognition processes and of protection in Niger. This report’s research was completed in July 2021 and except a few data points, does not include any developments thereafter.
This paper explores the refugee recognition regime in Egypt, a major host of refugees in the Middle East and North Africa region and one of UNHCR’s largest refugee status determination operations. Although the situation of refugees in Egypt has been the subject of significant study, this paper seeks to address, through a desk-based study, the nature and performance of the refugee recognition regime in Egypt, in particular the norms, institutions, modes of recognition, quality of recognition processes and quality of protection that is available to refugees in Egypt. The main findings are detailed in this executive summary.
This report focuses primarily on the actions of the United Nations High Commissioner for Refugees (UNHCR) because of its central and contested role in refugee protection. Drawing on primary and secondary data, it reviews how UNHCR has developed a range of protection interventions, some non-ideal, in response to the actions of state and non-state actors who maintain a hostile environment for migrants with irregular status.
The concept of ‘continuing violation’ allows reviewing applications concerning effects of violations that started before a treaty came into a force with regard to a state that allegedly committed the violation. This article analyses how the UN Human Rights Committee has recently approached two communications concerning continuing violations that occurred in the 1930s and 1940s (K.K. and Others v Russia; F.A.J. and B.M.R.A. v Spain). It critiques the fact that the Committee has introduced an additional qualification to its case law on continuing violations, namely that it has no jurisdiction over the violations with continuing effect, when underlying violations happened in the ‘very distant past’. The article argues that communications raising violations of the families of forcibly disappeared persons – at least these brought by their children – should not be ruled inadmissible because of time constraint since the disappearances. Lastly, the article reveals a tacit influence of the European Court of Human Rights on the Committee in the analysed case law.
In the summer of 2021 deliberate actions by the Belarusian state authorities led to a huge increase of people irregularly crossing the border from Belarus to Poland. Instead of addressing this humanitarian crisis, the Polish government responded with actions that were in violation of its international obligations and domestic law. Among these measures was carrying out “pushbacks” and grounding them in Polish domestic law. “Pushbacks” are the practice of returning people to the border without assessing their individual situation. The formalization of those practices in 2021 was done within two legal frameworks; one interim and one permanent. They continue to function in parallel while containing different provisions. This article assesses the two frameworks’ compatibility with domestic and international law and concludes that they both violate domestic and international rules. In the context of EU law, the article demonstrates the incompatibility of the two frameworks with the so-called Asylum Procedures Directive and Return Directive. The article urther argues that the pushbacks violate the European Convention of Human Rights and would not fall within the exceptions to the prohibition of collective expulsions.
The paper analyses how the European Court of Human Rights (ECtHR or the Court) assesses evidence when states conceal border practices, such as pushbacks, comparing the Court’s approach in those cases to that in enforced disappearance cases. In both types of cases, states deny that the conduct – which would have violated human rights – has taken place and provide neither the applicants nor the Court with evidence. While surface examination of the relevant case law could suggest that the ECtHR shifts the burden of proof in the same way in both sets of cases, I demonstrate that the Court expects applicants in covert border enforcement cases to provide stronger evidence, which is then labelled as prima facie evidence. I argue that the burden of proof should be shifted in the same way in both scenarios, as the position of the victims and the availability of evidence is strikingly similar.
This report discusses the evolution of the refugee recognition regime (RRR) in Kenya, chiefly over the period of 2000-2020. It highlights the government’s responses towards refugee protection, its bifurcated approach towards refugees based on where they reside, the challenges faced by protection seekers in the recognition process, and the shifts in responsibility between the government and UNHCR. The report is based on extensive desk-based research as well as original fieldwork, including interviews and focus group discussions with adult asylum seekers and refugees, as well as officers involved in refugee status determination (RSD) processes. The research targeted refugees and asylum seekers from the top four recognised nationalities in Kenya in the 20-year period: Somalis, South Sudanese, Ethiopians, and Congolese from the Democratic Republic of Congo (DRC).
This paper explores the refugee recognition regime in Jordan, the country hosting the second highest number of refugees per capita in the world. Against the background of a relative dearth of literature on refugee recognition regimes – in Jordan and more widely – this desk-based study analyses the norms, institutions, modes of recognition, quality of recognition processes, and quality of protection of the Jordanian refugee recognition regime. It focuses on the four key national ‘cohorts’ – Iraqis, Sudanese, Syrians and Yemenis.
Lebanon is one of the most important countries to understand the dynamics of the refugee recognition regime. It has received a large number of displaced people, and since the arrival of Syrians, it has been the highest per capita refugee-hosting country in the world. It is, therefore, crucial to understand how displaced persons are received, how their asylum applications are assessed, and how their protection needs are met in the country. This report describes Lebanon’s refugee recognition regime and assesses UNHCR’s quality of recognition process and the quality of protection for asylum seekers and refugees. It provides an overview of existing legislation and brings together original insights from legal aid organisations, UNHCR staff, and asylum seekers and refugees. The report, outlined in seven sections, first gives an overview of the existing literature and then explains the methods.
This report examines South Africa’s refugee recognition regime which is typified by an individualised refugee status determination (RSD) system that sets it quite apart from other major refugee-hosting countries in Africa, whose major mode of refugee recognition is group-based. The report focuses on a twenty-year period (1998-2018) highlighting the various areas of contestation within the refugee protection space and South Africa’s adherence to its obligations, under both domestic and international law. Although extensive work has been carried out regarding the quality of RSD process in South Africa, gaps are still evident with respect to the refugee recognition institutions and their relational dynamics and how this impacts the refugee recognition regime and refugee protection generally. The report is based on desk research and original fieldwork in South Africa among various elites working in the refugee protection area as well as refugees and asylum seekers in South Africa drawn from three nationalities: Somalis, Ethiopians and Congolese from the Democratic Republic of Congo (DRC).
The closure of the Greek-Macedonian border on 8 March 2016 entailed systematic pushbacks. The largest operation occurred on 14-15 March 2016, when more than 1500 refugees were summarily returned from North Macedonia to Greece. The complaint of AA and others v North Macedonia addressed this large-scale pushback operation. However, instead of condemning these pushbacks, the European Court of Human Rights expanded the exception from the prohibition of collective expulsions created in the case of ND and NT v Spain and found the applicants culpable of circumventing legal pathways, ignoring that these were clearly not available in practice. Thereby, the Court reproduces exclusionary reasoning that has shaped the European Convention on Human Rights since its inception.