Criminalizing Dissent in Post-Democratic Societies

Since his election in late 2018, commentators have expressed deep concern at the threat posed to democracy by Brazil’s far-right president, Jair Bolsonaro, including how his presidency will affect environmentalists, indigenous people and workers’ movements in Brazil and across Latin America. Among other things, Bolsonaro promised during his campaign for the presidency to banish political rivals from Brazil. Branding them ‘red outlaws’, he said that “Either they go overseas, or they go to jail”. The background to Bolsonaro’s election is now familiar. Promises to purge the state of a corrupt political class, to tackle violent crime, and fix a faltering economy are hallmarks of conservative-right rhetoric in the current conjuncture. Indeed, these issues featured in the Trump campaign in the United States, and to some degree in the run-up to Brexit in the United Kingdom. Both the Trump and Brexit campaigns also had antagonism to migrants as their centrepiece. Continue reading

‘Responsibility to Prosecute’? The Case of German Universal Jurisdiction, CIJA and the Arrest of Syrian Perpetrators

Arguably, more than any other global actor, Germany is at the forefront of issuing arrest warrants for atrocity crimes committed by the Syrian government in the wake of the Arab Spring. Three important observations can be made from Germany’s experience. First, it highlights the uniqueness of Germany’s universal jurisdiction as one based on a legal ‘responsibility to prosecute’. Second, it challenges prevailing preconceptions that accountability for core international crimes rests with one or two inter-state actors, such as the United Nations Security Council and the International Criminal Court. Continue reading

The EU under Transnational Law – A Pluralist Appraisal

The past decade has been one of the most turbulent times in the process of European integration. In this period, the European Union has risen to the stars and fallen back from the heavens. The beginning of the new millennium was marked by enviable achievements. The EU carried out a successful enlargement to the East. It adopted a single currency and experienced a boom in economic growth. The objective, laid down in the Lisbon strategy, was to make the EU “the most competitive and dynamic knowledge-based economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion.” This goal ought to have been met by 2020. However, the developments taking place since 2000 have made the attainment of this objective anything but possible. Rather than becoming the leading economy in the world, since 2009 the EU has been in permanent economic crisis. And, while the crisis has been tamed, it is far from resolved. Its consequences for the most affected member states in the South and in the East have been grave. They have shaken up the foundations of the well-ordered societies that these member states have at least tried or pretended to be. Continue reading

Can the European Union Save the Independent Judges?

By the time of the “big bang” accession in 2004, when ten new member states entered the European Union, it seemed that the fate of East-Central Europe was settled. From that time forward, these states were certified as democracies in good standing. But before the first decade was out on the accession, it became painfully clear that a consolidated democracy could come unraveled. Hungary’s constitutional system began imploding shortly after 2010 and in 2015 Poland began a short, sharp slide toward autocracy. In Hungary and Poland, parties with autocratically inclined leaders were voted into power. Both Viktor Orbán and Jarosław Kaczyński lied about their revolutionary ambitions before they were elected. Once in office, both began attacking judiciaries which were poised to hold them to account under the democratic constitutions they inherited. Continue reading

Climate Change, Migration and ‘Disappearing States’: The Case of Pacific Island Countries

Climate change is a material reality as much as it is a discursive one – and an extremely powerful one at that. Following the major scare story of global terrorism at the turn of this century, climate change seems to have become the new “Big Story”.1 The Pacific island countries (PICs), which face the threat of becoming entirely uninhabitable, have been positioned at the frontline of this discourse, as evidence of a changing climate and omen of a dystopian future of mass displacement. Indeed, the big story of climate change and mobility in the Pacific has been articulated through a narrative of climate refugees in need of legal recognition by the international community as they flee their sinking islands slowly swallowed up by unforgivable rising seas. Continue reading

Donald Trump as Global Constitutional Breaching Experiment

During the nearly 24 months since the inauguration of Donald Trump as President of the United States of America, it has become commonplace to observe that the actions of this President are ‘not normal’. Examples of his abnormal behaviour are numerous, but for a quick refresher consider the following (very incomplete) list. Calling the director of the National Parks Service to find photos of the inauguration to disprove media claims that President Obama’s inauguration had a larger audience. Launching an investigation into voter fraud over the election he won, without any actual evidence of voter fraud. Hanging up on the Australian Prime Minister because he did not like a pre-existing refugee agreement between the US and Australia. Pressuring the director of the FBI to stop investigating Michael Flynn for his undisclosed dealings with Russia and Turkey. Banning major media outlets from White House press briefings because he did not like the coverage he received from these organisations. Accusing President Obama Continue reading

Circumcision: Immigration, Religion, History, and Constitutional Identity in Germany and the U.S.

The great waves of global migration into and out of Europe such as those that preceded World War I, followed World War II, and again drew our attention in 2015 inevitably challenge the fixity or stability of a country’s constitutional identity. Whether official ideologies are those of assimilation, integration, pluralism, or multiculturalism seems not to matter; challenges will arise no matter. Constitutional identities are not just ensembles of laws and an accumulated national jurisprudence. They are grounded in cultural configurations that evolve over long periods of time but are, for the most part, taken for granted. Continue reading