Examining the practices of i) the selection of judges, ii) panel composition and case assignment, and iii) judicial off-bench activities, the article argues that some Czech judges, most often court presidents and apex court judges, use informal judicial institutions as tools to increase their influence on judicial administration and the decision-making of courts. As a result, these judges have far greater influence than the formal account of their roles might suggest. The article explores the context which facilitated the informal rise of these “Superjudges”, asserting that the key factors were institutionally independent judiciaries with individually dependent judges, the absence of a shared understanding of fundamental constitutional concepts, and the underperformance of Czech legal academia. The article then contends that while Superjudges may contribute to an informed, effective, and politically independent functioning of the judiciary, they also risk eroding important divisions of power which, in turn, might compromise the integrity of the judicial process, undermine the authority of courts, and disconnect the content of the law from the general interest.

Faced with a changing geopolitical environment, the European Union has embarked on a legislative program to upgrade its unilateral trade instruments toolbox. By reforming existing instruments—for example, anti-dumping—and by adding new instruments to the European Commission’s toolbox (foreign subsidies instrument, international procurement instrument, anti-coercion instrument, and others), the EU legislature is significantly strengthening the position of the Commission in the governance of unilateral trade policy in the EU. This development raises accountability questions. By means of a comparative analysis of democratic accountability in unilateral trade policy in the United States and the EU, I describe this transformation of executive power in the EU and I argue that a further strengthening of democratic accountability mechanisms is needed to match the Commission’s growing responsibilities in this underexamined corner of EU trade policy.

The article discusses the role for systemic and particular deficiencies in EU criminal law. It does so by analyzing in depth that law as regards the European Arrest Warrant (EAW), but also across measures of EU criminal law that have not yet been explored under this light. While the attention of the literature has been mainly on the EAW and the way those deficiencies can led to refusing the execution of the warrant, a wider assessment reveals the existence of a latent law of the systemic and the particular in this field. The conclusions reveal that the understanding and application of systemic and particular deficiencies in EU criminal law have significant implications in terms of the principle of mutual trust and the complex interaction between different EU values.

Paul Kahn has offered a fascinating account of the role of political theology in the field of law, through an exploration of some core concepts of the discipline. This article explores the nature of Kahn’s undertaking through a comparison with Carl Schmitt. The conclusion is that, rather than actual theology, Kahn’s “political theology” is a valuable form of legal anthropology anchored in an exploration of our legal culture.

This article explores the extent to which key normative and institutional responses to the challenges raised by the digital age are compatible with, or interact with, changes in key features of the existing international human rights law (IHRL) framework. Furthermore, the article claims that the IHRL framework is already changing, partly due to its interaction with digital human rights. This moving normative landscape creates new opportunities for promoting human rights in the digital age, but might also raise new concerns about the political acceptability of IHRL. Following an introduction, Section B of the article will describe the development of digital human rights, using a “three generations” typology. Section C will explain how new developments in the field of digital human rights coincide with broader developments in IHRL, including: the extra-territorial application of human rights, obligations on governments to actively regulate private businesses and the erosion of normative boundaries separating specific human rights treaties from other parts of IHRL and international law. These two segments are followed by concluding remarks.

When establishing constitutional rules that regulate political parties, liberal democracies struggle between civil liberties—thus tolerating anti-democratic parties—and potential threats of democratic breakdown, which can be reduced by prosecuting and prohibiting anti-democratic parties. We suggest that liberal democracies must balance false positives and false negatives by combining ex ante and ex post regulatory mechanisms. By making use of a unique dataset of thirty-seven liberal democracies collected by the authors, we find empirical results consistent with our positive theory. An extensive review of the normative debate and case law provides additional qualitative support.

International trade law has long been the site of a battle over who or what the state can represent. Today, that battle is taking a new form. While for decades the WTO was considered a centerpiece of the international economic order, the policy landscape is now awash with claims that the US should abandon WTO disciplines, critiques of the WTO as the vehicle for a coherent neoliberalism, and concerns about the implications of trade law for domestic industry, democratic participation, climate action, and national security. While I am a long-standing critic of trade law’s excesses, I don’t see that sudden shift as a cause for celebration. In order to understand why, I argue that it is necessary to pay careful attention to the different forms the battle for the state at the WTO has taken. This article explores the conditions and stakes of three key moments in that battle – the negotiation of the GATT and the era of decolonization, the end of the Cold War and the creation of the WTO, and the recent transformations caused by the decline of US power, the rise of China, and the systemic shock of climate change. I conclude that we cannot automatically apply critiques developed in earlier eras to the current situation.

European States have adopted policies to push back not only against migrants fleeing across the Mediterranean Sea but also against those individuals and NGOs who act in solidarity with them. This article seeks to demonstrate how the activities of maritime NGOs in solidarity with migrants may be protected from States’ interferences within the framework of international human rights law. In a novel inquiry, we submit that both monitoring as the gathering of information and even search and rescue operations may be considered forms of the freedom of expression. Furthermore, as State measures, ranging from intimidation to criminalization, undoubtedly serve to counter migration to Europe, we argue that Article 18 ECHR may be violated if the interferences’ ulterior purpose is exposed. By showing solidarity, at times we also express ideas. Think of those who hid Jewish people during the Nazi regime, the NGOs who organized private aircrafts to save Afghans after the Taliban’s takeover, and those who today go to the Ukrainian border to collect people fleeing the war. This article is based on the authors’ conviction that human rights law must adapt to remain viable in the face of unprecedented human rights challenges and the resourceful civic actions to meet them.

The two widely used dichotomies of floor/ceiling and centralization/decentralization often fail to capture the full interactions of rights in multilevel constitutional systems such as the EU or the US. This article offers a comprehensive yet straightforward classification linking rights to the division of power between the center and component states. The typology comprises three overarching categories: plurality, partial and full centrality. These categories are broken down into further subcategories and illustrated through comparative examples from the EU and the US. The typology reveals mezzanine structural levels which go unnoticed when analysis is confined to existing dichotomies. The purpose of the typology is, first, to facilitate more accurate comparisons of the EU and the US’s composite systems and make commonalities and divergences easier to identify. Second, through the ensuing clarity, it aids the normative inquiry into what level of government—the center or the state—is better suited to regulate different types of rights and to what extent. Thirdly, it reconnects the EU-US comparison with comparative constitutionalism’s Aristotelian pedigree of utilizing robust categorization as a necessary cognitive tool for maintaining rationally ordered analyses.

Meta, formerly the Facebook Company, faces immense pressure from users, governments, and civil society to act transparently and with accountability. Responding to such calls, in 2018, it announced plans to create an independent oversight body to review content decisions. Such a forum is now in place in the form of the Oversight Board. To Meta’s credit, the speed at which the Oversight Board has been established is remarkable. Within two years, a global consultation process was completed with input obtained from users as well as experts, the regulatory infrastructure for the Oversight Board built, its members selected, and the first decisions of the Board already rendered in January 2021. With its institutional structure in place, and plenty of resources to tap into, the Oversight Board could have a real effect on how some transnational disputes are resolved. Thus, the Oversight Board may very well be setting the direction for how tech companies in particular, and multinational corporations in general, go about providing grievance mechanisms to individuals who their actions adversely affect. Through a study of the Oversight Board, this article considers whether we are witnessing the birth of a special type of “transnational hybrid adjudication” that could have a systemic impact on international law, or an experiment with limited relevance.

The concept of a systemic fundamental rights violation refers to a particular set of violations that are both widespread and embedded, so their reoccurrence may be assumed to be likely. It takes on at least two distinctive roles in EU asylum law and policy. One role is linked with the functioning of the principle of mutual trust, a principle that obliges Member States to recognise each others’ systems and decisions, presuming them to be legal, apart from exceptional cases. In this context, the principle sets the standard from when the presumption of legality is rebutted. In its conceptualisation and application, it is in tension with European human rights law, and, for a period, set up frictions between the CJEU (in NS/ME and Opinion 2/13) and the ECtHR (in MSS and Tarakhel). This tale of judicial frictions is not merely of historical interest. Its legacy is, we conclude, a thin concept of systemic breach, characterised by an over-individualized approach to assessing the human rights risks. The second role for the concept of systemic violations relates to embedded violations, including at the EU’s external borders. We demonstrate the utility of this other invocation, in particular as systemic breaches often signal deeper rule of law issues both within particular national systems and embedded within the Common European Asylum System (CEAS). We illustrate that the CEAS itself brings about systemic human rights violations. Identifying and responding to the “systemic” in asylum increasingly relates to the credibility of the EU as a Union based on the respect for fundamental rights and the rule of law.

The article thematizes the relevance of Paul Kahn’s conception of political sacrifice for contemporary constitutional studies. Kahn’s approach to political sacrifice is compared with another extremely influential theory of sacrifice, René Girard’s theory of sacrifice. The main aim is to show why Kahn’s view of sacrifice in constitutional orders escapes the logic of victimization that affects Girard’s seminal work, and it provides a better understanding of a political conception of modern constitutional orders. In the final section, the article shows that although Kahn’s version of political sacrifice is seen as the embodiment of the principle of sovereignty, it can be expanded beyond it.

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 discusses existing WTO rules on subsidies and state enterprises, relevant caselaw and reform prospects in light of key geopolitical developments and changes in the global economy emerging in the aftermath of the Covid-19 pandemic. Following a general introduction, the Article critically analyzes present WTO rules on industrial subsidies, focusing inter alia on the new problems raised by activist industrial policies pursued by global trading powers, foreign subsidization, the climate change shock and environmental exigencies. It then shifts attention to the application of WTO rules on subsidies to the state sector and the increasing demands for new international trade rules on non-subsidies measures to address the negative spillover effects on trade from government influence on state-owned enterprises (SOEs). With respect to each of these matters, the Article first clarifies the terms of the problem in relation to existing WTO rules and caselaw, and next examines the question of how, and to what extent, “deeper” free trade agreements (FTAs)—those that experts designate as models for WTO reforms on the matter—establish new rules that permit to adequately address the trade concerns raised by SOEs’ commercial and financial activities. Based on this multi-layered analysis, the article concludes by examining prospects of reform of WTO rules on state interventionism.

In 2021, the German and Namibian governments published a Joint Declaration as a result of their negotiations on reparations. Ovaherero and Nama representatives strongly criticized the violation of their participation rights during the negotiations and the reproduction of colonial racism. In 2023, a lawsuit was filed with the Namibian High Court. This litigation could become a milestone in the history of legal struggles for reparations for colonial crimes worldwide. In addition to the litigation, several United Nations Special Rapporteurs were contacted and published their joint communication in April 2023, essentially confirming the lack of effective participation and the obligation to grant reparations.

This Article gives an overview of the most important historical events during German colonial rule and the most significant efforts to legally come to terms with it since 2006. It analyzes the main legal issues in this context: Have the acts committed by German colonial troops violated the laws in force at the time? Is the current application of the doctrine of intertemporal law by the governments a reproduction of racism? Might it be a new act of racism? What challenges and limits do courts face when they attempt to retrospectively reconstruct legal systems and legal norms in force 100 years ago? Does the German state have a legal obligation to enter into negotiations over reparations? What participation rights do affected communities have in processes of legal reappraisal of colonialism?

In view of the growing demands for reparations worldwide, it is timely to deal with the underlying legal issues in an exemplary manner. The legal intervention of the German-Namibian reappraisal could set a precedent. The Article aims at establishing minimum legal standards for reparations processes for colonial crimes worldwide.

This article explores the systemic impact of digitalization on the use of force regime. It identifies two types of impact: (i) legal uncertainty; and (ii) the replacement of international law. The article discusses legal uncertainty in relation to the content of the rules on the use of force and their application to digital uses of force as well as in relation to the facts that underpin digital uses of force. It then goes on to discuss the replacement of international law as a regulatory tool of the use of force by considering the impact of digitalization on the creation of customary law, legal personhood, and international law’s regulatory modality. The article’s findings are not limited to the impact of digitalization on the use of force regime but extend to international law in general.

This article explores the use of the systemic criterion in the European Court of Justice’s (ECJ) case law on judicial independence under Article 19(1)(2) Treaty on European Union (TEU). It starts from the observation that ever since the Portuguese Judges judgment, the case law has moved towards a more abstract and general assessment of issues of judicial independence. Yet, despite that evolution, the Court—perhaps surprisingly—only rarely uses the systemic criterion in its judgments. There are only two strands of case law to be found, neither of which tell us much about how the Court understands the notion of “systemic” in this field. This article argues that this criterion nevertheless has an important role to play in the case law on judicial independence and that the Court should explicitly limit the finding of a violation of Article 19(1)(2) TEU to those issues that have a systemic impact on the functioning of the domestic judiciary. By limiting the effects of Article 19(1)(2) TEU in such a way, the Court would strike a balance between the protection of the independence of the domestic judiciary, which is crucial for the proper functioning of the European Union (EU), and respect for the autonomy of the Member States as to the organization of their judiciary.

This Article considers how the ranking of states, as perpetuated by the international legal order, may play a role in the considerations of those targeted by global naming and shaming campaigns. To do so, it examines Qatar’s response to being shamed in the lead up to and during the 2022 FIFA Men’s World Cup. Drawing from international relations literature on status and adopting a critical approach to unpack the prevalence of the hierarchal structuring of states in the contemporary international legal order, the Article claims that the practice of shaming, as a human rights enforcement strategy, inevitably pushes target states to question their status within the international legal community. This could, counterproductively, lead to negative outcomes for the rights of the very individuals these campaigns seek to protect. Furthermore, the Article sketches out a theoretical argument for why certain states may consider the enactment of cosmetic legal reforms to be an attractive strategy for countering a global shaming campaign.

This Article critically analyzes seven elements of the Biden administration trade policy: (1) buy American; (2) tariffs; (3) World Trade Organization; (4) free trade agreements; (5) China; (6) technology; and (7) Russia. Although President Biden has made a clean break from Trump policies in many areas, this is not the case when it comes to international trade. Regretfully, Biden has chosen to keep in place most of the failed trade policies of his predecessor—the Trump tariffs and the China trade war. It is not too late to shift ground, to negotiate mutual abolition of the Trump tariffs, to open free trade negotiations with the EU and UK, to join the Comprehensive and Progressive Trans-Pacific Partnership, to adopt a multilateral strategy with allies to check Chinese trade excesses, and to reengage with the World Trade Organization. Topping the list of needed reforms of the multilateral trading system are: (1) subsidies; (2) state-owned enterprises; and (3) forced technology transfer. These are best addressed through a WTO plurilateral agreement and/or preferential trade agreements. The Biden administration should prioritize these urgent reforms. Rather than promoting “free” trade and multilateral trade reforms, the Biden administration continues its predecessor’s nationalistic policies so that trade serves domestic political ends. Such state intervention in trade policy consists of the strategic use of tariffs, subsidies, “buy American” rules, and regional trade arrangements without regard to the rules of the multilateral trading system. These new policies represent a decisive retreat from globalization and openness to trade.

The Congress, directed by the Biden administration, has adopted a far-reaching industrial policy in the form of four laws that subsidize key sectors of the U.S. economy: American Rescue Plan Act ($40 billion); Infrastructure and Jobs Act ($1.2 trillion); Inflation Reduction Act ($369 billion); and Chips Act ($252.7 billion). This subsidization coupled with “buy American” protectionism constitute a departure from the free trade ideal that has characterized U.S. policy since the end of World War II.