A Transnational Human Rights Approach to Human Trafficking: Empowering the Powerless

Numerous legal texts and scholars use the term “transnational” to describe diverse legal concepts or phenomena the more traditional term “international” cannot fully or accurately capture. At least three different aspects are referred to or analyzed as transnational: the nature of the relevant cases, the operation of relevant legal systems, and the process of norm-making. First, many legal issues, including human rights cases, factually possess transnational features. Compare transborder human trafficking with a more traditional, textbook international human rights case such as discrimination against ethnic minorities in a certain state. The latter involves a state violating the human rights of its nationals within its territory, followed by an intervention of international law in a situation previously regarded as a “domestic matter.” In such cases, the main perpetrator is the state, the victims are the state’s own nationals, and human rights violations are committed within the state’s territory. A cross-border human trafficking case inverts this model: Continue reading

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

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

Wie sich Autorität rechtfertigt: Expertise und demokratische Mehrheiten haben nur begrenzte normative Kraft

Weit verbreitet ist zurzeit das Argument, liberale Demokratien befänden sich in einer Autoritätskrise. Was aber ist damit gemeint? Ganz grundsätzlich meint eine solche Krise, dass Autoritätsbeziehungen erodieren. Das heißt, autoritative Behauptungen werden von ihren Adressaten nicht mehr als bindend anerkannt. Dies ist der Fall, wenn etablierte Rechtfertigungen des Autoritätsanspruchs versagen oder infrage gestellt werden. Die derzeitige Autoritätskrise kann als eine solche verstanden werden, in zweifacher Hinsicht: als eine Krise der Autorität von Experten und als Krise einer spezifischen Form demokratischer Autorität, Continue reading

Tradition and Constitutional Rights Review

Critiques on human rights and comparative law often criticize that an obsession with the universal norm or the “Common Core” erases the diversity and specificity of the local contexts. It is at the same time doubtful, however, that an assertion of “Asian values” could serve as a justification for denying universal human rights to any extent. The ways that tradition or national culture comes into rights practice are more subtle and varied. A constitution is sometimes claimed as an embodiment or representation of national identity and tradition. In other occasions, tradition is challenged as a threat to constitutional rights and principles. This essay examines two illuminating cases adjudicated by the South Korean Constitutional Court Continue reading