Despite recent criminal law reforms to define rape through the lack of consent, practical questions remain about how to regulate different kinds of violations of sexual autonomy. Many common law scholars have found it eye-opening how much more extensive and easily accepted the protection of property rights is compared to the protection of sexual autonomy. But when the rationale of criminalization resides in human rights, such a comparison is alien; protecting human dignity appears separate from protecting instrumental property rights. Considering rape a subversion of our ownership rights to our bodies (the property model of rape) is rightly regarded as problematic. This article argues that comparing sexual crimes and property crimes is not predicated on the property model but rather on autonomy itself. Comparisons based on autonomy could help resolve practical dilemmas of consent-based rape laws while respecting human dignity and thus be fruitful research pursuits within a human rights tradition.

The application of the EU Charter of Fundamental Rights to the Member States has given rise both to a controversial phraseology and a controversial case-law. This paper offers a reconstruction of the constitutional intent and proposes a conceptualization in conformity with the structural function and the constitutional contemplation of the pouvoir constituent. As to the phraseological debate, it demonstrates that the Charter’s application to the Member States may occur by reason of either “implementation” or “interpretation” of EU law and the two strands are embraced but not synthetized by “scope” as a collective term. As to the substantive debate, it demonstrates that the CJEU’s case-law on “implementation” is not only amorphous but also inconsistent with the Charter’s constitutional mandate. The paper proposes a novel approach based on the notion that the application to the Member States is accessory to the supremacy of EU law. The paper’s argument is presented in the following steps. First, the paper presents the pristine rationale and constitutional function of the application to the Member State through its emergence and historical context. Second, it provides a taxonomy and critical overview of the CJEU’s amorphous case-law and presents the Court’s futile attempt to create a coherent doctrine that faithfully reproduces the constitutional contemplation behind the diagonal application and that reflects the division of competences between the EU and its Member States. Third, it sets out the proposed doctrine of “displacement.”

Targeted sanctions, namely asset freezes and travel bans, are no longer the province of foreign policy alone. They are increasingly often used by governments in response to crime, such as corruption, human rights abuse, cybercrime, drug trafficking, and transnational organized crime writ large. Such sanctions are imposed based on permissive evidential standards, such as that of “credible evidence” or “reasonable grounds to suspect.” Their advent has added a new layer to a multi-tier system of state responses to crime. First, there is the traditional approach of criminal prosecution and conviction based on the criminal standard of proof. Second, one rung below is non-conviction based asset forfeiture, a notionally civil confiscation of supposed proceeds of crime that eschews the need for compliance with a suite of criminal trial safeguards. At the third level of this hierarchy are crime-based targeted sanctions, which vest the state with the greatest latitude in dealing with suspected criminals. Based on a wide-ranging analysis of international practice, this article contends that not only are crime-based sanctions de facto a criminal justice tool, but also that a coherent set of principles is required to determine their relationship with other responses to criminal behavior.

Fundamental rights to positive state action are costly. An allocation in favor of one individual rightsholder always results in lower allocations in favor of others. The dominant approach in fundamental rights doctrine assumes these conflicts can be resolved judicially by balancing competing rights and other public needs. In practice, carrying out an in-depth balancing in resource allocation cases proves challenging but constitutional courts developed different strategies and concepts to deal with costly rights. The European Court of Human Rights applies a “wide” margin of appreciation and requires that positive state obligations do “not impose an impossible or disproportionate burden on the authorities.” Following the German Federal Constitutional Court, several constitutional courts have applied a concept known as the “proviso of the possible.” The proviso of the possible constrains positive rights and results in a wide margin of discretion granted to political authorities. This article attempts to investigate the specific meaning of the “proviso of the possible” in the context of European fundamental rights law by comparing it against alternative doctrinal concepts. The investigation aims to identify common legal principles and methods to deal with fundamental rights conflicts over scarce public resources.

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.

Legal rules aimed at compensation for the harm caused by a particular state, individual, or legal entity (for example, oil pollution of the sea due to a tanker accident) are well studied and constantly used in scientific literature and international law practice. Meanwhile, every year, the number of cases of harm when the particular guilty party cannot be established grows; this is why it is almost impossible to compensate for the harm caused. Such cases include collisions of satellites causing space debris; the consequences of climate change for agriculture, forestry, and the health of citizens; and the pollution of the World Ocean with plastic debris, ballast water, and abandoned nets.

There are more such cases at the national level. After studying acts of international environmental law, national legislation, and several examples from judicial practice, we show that compensation for the harm caused to life, health, or property in the absence of a particular harm-doer is difficult or impossible to prove. This is why actions that can prevent subjectless environmental harm are taken at the national level in certain countries by developing measures to mitigate and adapt to climate change, licensing space activities, and taking preventive measures against the formation of plastic debris and its pollution of the seas, etc. This trend should be continued, and the experience gained by certain states should be used in developing new acts of international environmental law. This will ensure the next step towards preventing environmental harm where it is impossible to establish the doer’s name.

By addressing the question “Are the roles and values of stakeholder participation qualitatively different for non-governmental organizations (NGOs) and national human rights institutions (NHRIs), and if so, how?” this article dissects stakeholder participation in UN human rights treaty body activities. First, it normatively posits that stakeholder participation in treaty body activities carries three values, which weigh differently based on the actor and the treaty body activity concerned: facilitating “bounded” national deliberations, promoting international deliberations on human rights treaty standards, and supplementing the treaty bodies’ fact-finding capacity. It offers concrete normative guidance for treaty bodies on their engagement with NGO and NHRI participation to maximize the benefits of these values. It then empirically analyzes their current practice in light of the above-mentioned normative guidance. This article contributes, first, to the theorization of stakeholder participation in treaty body activities, which has been discussed but only in generalized or fragmented ways in previous studies. Second, it supports the effectiveness and legitimacy of treaty bodies by endorsing their practice that is consistent with the guidance and finding space for improvement. Finally, it provides a rationale for establishing and strengthening NHRIs by showing that NHRI participation has unique roles distinct from those of NGOs.

The absolute implementation of the originator control principle (‘absolute originator control’) allows the EU Member States’ national intelligence services to block the access of the European Parliament to confidential information necessary for the effective exercise of joint parliamentary scrutiny at Europol. This research paper will demonstrate that this is a flawed practice in need of urgent reform, since it violates some of the basic tenets of EU constitutional law enshrined in Article 13 TEU and Article 9 TEU. This legal problem is reframed with the help of trust theory, which reveals that absolute originator control causes the Union to be confronted with a constitutional dilemma that is irresolvable in the EU legal order: the Union is revealed to be a trustee to two trustors – the EU Member States and the EU citizens; to protect the interests of one trustor, the Union would necessarily have to betray the trust of the other trustor.

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.

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.

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.

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.

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.