There has been increasing attention both at national and international level to demands of reparations for historic injustices—colonialism, enslavement and the transatlantic chattel slave trade—and the role and relevance of international law in this context. A routinely identified legal obstacle to reparation demands is the doctrine of intertemporal law, which is generally interpreted to require past acts to be considered in the light of the law contemporary with them. This interpretation of the intertemporal doctrine has been contested more recently in international legal scholarship and practice, which both seek to instill an increased sense of ambiguity into the laws of the past, but crucially, this Article shows, these efforts do not extend this ambiguity to the doctrine of intertemporal law itself. This Article takes a closer look at the intertemporal doctrine and interrogates these varying interpretations. It analyses both conventional and critical international legal scholarship on the intertemporal doctrine in the context of reparation claims for historic injustices and contrasts them to the scholarly reception of the intertemporal doctrine in the past and selected cases from the International Court of Justice (“ICJ”), arguing that whilst an often–unquestioned static understanding of intertemporality prevails, more dynamic interpretations of the doctrine also exist. By building on these legal arguments that enshrine a less static relationship between past and present laws within the discipline of international law—including ICJ decisions, judges’ dissenting opinions, states’ arguments, and critical legal scholarship—the Article defends a potentially emancipatory interpretive approach to the doctrine that could reframe it so as to support, rather than hinder, reparation claims for historic injustices in international law.

The numerous scandals that have marred the world of football suggest that reform is badly needed. As governing bodies like FIFA and UEFA fail to make meaningful improvements, calls for public regulation are gaining ground. This article explores what the European Union (EU) could do to effect change. Although long hailed as a powerful sports regulator, there is a widespread feeling that the EU’s regulatory potential remains unfulfilled. The article argues that the Union is in a unique position to leave a positive mark on football governance if it decides to regulate the sport more extensively. Three options are outlined: increasing the intensity of scrutiny exercised under the internal market rules, changing the approach towards cooperation with football stakeholders, or enacting a European Sports Act. After examining the benefits and drawbacks of each route, it will be claimed that, on balance, the most promising avenue is EU legislation which sets out minimum governance standards as well as substantive requirements, including on human rights, gender equality, and athlete welfare. The conclusion will offer some reflections on what would need to happen for the proposal to materialize, discussing the role of advocacy coalitions and crises in bringing about regulatory change.

This Article looks critically at the extension of sovereign rights to natural resources into the ocean commons. It focuses specifically on the continental shelf. I first account for the novelty of the continental shelf claims and the legal regime set by United Nations Convention on the Law of the Sea (UNCLOS). Then, I look at the structure, scope, and practice of sovereign rights to natural resources and assess the consequences of their application to this legally constructed underwater resource domain attached to the territory of a coastal state. The overall argument of this Article is that in the current form, sovereign rights do not promote justice in the ocean commons. Three distinct problematic consequences from the perspective of justice are analyzed: Distributive inequality, unjust politics of resource sovereignty, and legal and economic reification of marine ecosystems. In the conclusion, I raise the question of the role of sovereignty in the global commons and how to restructure it so that it meets the demands of safeguarding the ocean commons as an environmental planetary domain. The Article argues for the possibility of rethinking sovereignty in terms of Earth Trusteeship of the global commons based on a normative concept of sovereignty as trusteeship of humanity and the environment recently proposed in the philosophy of international law.

The spread of disinformation, such as false and fabricated content, as amplified by the expansion of artificial intelligence systems, has captured the attention of policymakers on a global scale. However, addressing disinformation leads constitutional democracies towards questions about the scope of freedom of expression as the living core of a democratic society. If, on the one hand, this constitutional right has been considered a barrier to public authorities’ interferences to limit the circulation of disinformation, on the other hand, the spread of fabricated content and manipulative techniques, including deepfakes, has increasingly questioned liberal views. This constitutional challenge is further enriched by the role of online platforms which, by mediating speech in their online spaces, are essential tiles of a mosaic picturing the potential regulatory strategies and the limit of public enforcement to tackle disinformation. Within this framework, this work argues that the European constitutional approach to tackle disinformation has defined a unique model on a global scale. The European Union has developed a strategy that combines procedural safeguards, risk regulation, and co-regulation, as demonstrated by initiatives such as the Digital Services Act, the Strengthened Code of Practice on Disinformation, and the Artificial Intelligence Act. Positioned between liberal and illiberal models, the European approach proposes an alternative constitutional vision to address disinformation based on risk mitigation and the collaboration between public and private actors.

While there is growing evidence that employers hold substantial market power and that workers suffer from worsened working conditions as a result, interventions against employer conduct through EU competition law remain limited. A possible reason for this reserved approach is the predominance of consumer welfare as the objective of the law. To be sure, harm inflicted on workers by employers may under certain circumstances translate also into harm to downstream consumers. But in other cases the effect on consumers may be neutral or even positive. Against this background, this Article offers two lines of argument for EU competition law to recognize harm suffered by workers from restricted competition between employers as a form of harm relevant in itself. First, the Article argues that harm to any market counterparty, including workers, is a sufficient condition for intervention. Second, in the alternative, the Article argues that at least harm to individuals at the edges of supply chains, that is final consumers as well as workers, warrants action. In any case, EU competition law should not be more Catholic than the Pope: The pursuit of consumer welfare, as an objective borrowed from U.S. antitrust, should not lead to less intervention against employer conduct than we see in the United States.

This Article analyzes the role played by international actors, indigenous peoples, and independent lawyers as guardians of democracy in a context where democratic backsliding, abusive judicial review, and institutional takeover has taken place. Using the Guatemalan 2023 electoral process as a case study, this Article sheds new light on authoritarian constitutional practices, evidenced through the judgments of the Guatemalan Constitutional Court and activities of its Criminal Prosecutor’s Office. This Article also considers how foreign governments, international organizations, indigenous peoples, and independent lawyers came to play a guardianship role in the face of the decline of core institutions of constitutional democracy. Techniques such as transnational sanctions, judicial challenges, diplomatic “shaming,” and protest movements were successful in upholding constitutional democracy by discouraging attempts by the courts and government officials to derail the transition of power and annul the electoral results. This Article analyzes how and why these techniques had an impact in the Guatemalan context and extracts lessons and insights, both positive and negative, for dealing with abusive constitutional practices in theory and in practice.

EU law is over-constitutionalized. Advanced a decade ago by Dieter Grimm, this thesis seems like a truism that requires neither proof nor refutation. This Article follows a different intuition: What if Grimm was wrong? Breaking with an orthodoxy of EU law, the article puts the over-constitutionalization thesis to the test. It reveals that Grimm’s claims are questionable at a theoretical, analytical, and normative level. Grimm departs from the premise that any constitution faces the task of striking a balance between stability and flexibility at the level of the constitutional text and between law and politics on the institutional plane. According to Grimm, this balance is disturbed at the EU level, an analysis which appears plausible at first sight. However, in both respects—Treaty text and institutional practice—there is a mismatch between Grimm’s theory and reality. While he overestimates the Treaties’ rigidity in substance and procedure, he underestimates the rise of judicial responsiveness and legislative activity. These analytical shortcomings taint Grimm’s normative proposal. Disregarding the institutional practice, he suggests scaling back the Treaties to their genuinely constitutional contents. Drawing on Luxembourg’s increasing responsiveness to the Union legislature this Article advances an alternative way forward by further calibrating the Court’s jurisprudence.

Many constitutional courts use balancing in constitutional right adjudication. However, critics argue that balancing is an (self-)empowerment of the courts and a tool of judicial activism. It is claimed that constitutional courts are increasingly using this technique when ruling against the legislature, for example when striking down laws. This study empirically examines the status of balancing in the case law of the German Federal Constitutional Court. It demonstrates that text-as-data methods can be used to analyze judicial reasoning by using word embeddings to measure the use of balancing language. It is shown that the use of balancing language increased during the first fifty years of the court’s existence. Since then, there has been a decline. The court also tends not to use more balancing language in decisions overturning laws. This evidence challenges the critique’s assumption that balancing is a tool of judicial activism.

The development of brain-reading technologies has raised expectations that it will finally be possible to detect lies. However, the existence of these new technologies has also raised fears that the authorities might use them to read people’s minds without their consent and obtain evidence that could be used against them in criminal proceedings, a scenario that raises questions about possible violations of the right against self-incrimination. The aim of this Article is to analyze whether the obtaining of incriminating information through the non-consensual use of brain-reading technologies can violate the right against self-incrimination under its traditional interpretation, according to which the scope of application of this right includes only “testimonial evidence,” thus excluding “real or physical evidence.”

The twenty-first century has witnessed the global resurgence of constituent power—the power to make a constitution—in both academic debate and the practice of constitutional adjudication and design. Comparative constitutional law scholarship on this power has largely focused on democratic settings. Little academic attention has been paid to the constiuent power in socialist regimes. To fill in this gap, this Article explores the design and practice of the constituent power in both former and current socialist regimes. It identifies three paradigms of the socialist constituent power. In the revolutionary paradigm, the power is used at the founding moment after a communist revolution to establish the legal foundation for a socialist state. In the Soviet, post-revolutionary paradigm, constitutent power is a power of the ordinary legislature used for the replacement of an existing by another socialist constitution. In the contemporary reformist paradigm, the socialist constituent power is still vested in an ordinary legislature but its design and practice integrate ideals and practices of democratic constituent power, including public engagement in constitutional reforms, as the consequence of the people’s struggle for their constituent power and the global diffusion of the idea of the popular constituent power. The reformist paradigm is illustrated by a case-study of Vietnam, using original resources. This study has implications for understanding the Soviet legacies and contemporary dynamics of constituent power in the socialist regimes, and for the comparative study of constituent power.

This Article offers a first comparative analysis of the evolution of U.S. corporate personhood doctrine and the “freedom to conduct a business” under Article 16 of the EU Charter of Fundamental Rights. It argues that, over the past fifty years, the Supreme Court of the United States (SCOTUS) and the Court of Justice of the European Union (CJEU) have both contributed to the rise of neoliberalism by using these legal doctrines to shield market mechanisms from democratic intervention. While SCOTUS has expanded and deepened corporate personhood, granting new and more powerful protections under free speech and religious freedom to corporations, the CJEU has similarly interpreted the “freedom to conduct a business” to weaken labor protections and different market regulations. This unexpected convergence contrasts with the CJEU’s ostensibly social mission and underscores the dangers of an uncritical expansion of Article 16. But despite this shared goal, this Article highlights the divergence in the approaches of SCOTUS and the CJEU through insights from comparative political economy. Differences in legal mobilization, the role of courts in political disputes, and the political economy of industrial relations have shaped each doctrine’s development. These findings are useful for legal reformers developing different strategies to curb corporate power in both jurisdictions.

The right to rehabilitation for prisoners is a fundamental human right recognized under international standards, imposing a positive obligation on states to ensure its fulfilment. This Article undertakes an in-depth examination of prisoners’ rehabilitation through both micro and macro lenses, examining individual experiences alongside broader societal impacts. Drawing on insights from scholars like Edgardo Rotman and Amanda Ploch, contrasting rehabilitation models are explored, highlighting tensions between institutional discipline and individual empowerment. At the macro level, rehabilitation addresses socio-economic inequalities and collective benefits, yet may overlook individual dignity from a human rights perspective. In contrast, Rotman’s humanistic model emphasizes personal insight, dialogue, and prisoners’ intrinsic rights at the micro level, fostering empowerment and a sense of responsibility. A dual perspective—from macro policy indicators to micro-level prisoner experiences—is crucial for a nuanced evaluation of rehabilitation efficacy. This exploration underscores the need for effective execution and resource allocation to uphold principles of human dignity and ensure the right to rehabilitation becomes a tangible reality for every individual within the criminal justice system.

It has become fashionable to attack the international investment system, even for former advocates such as the United States Trade Representative. This Article demonstrates a way forward of how the system may be saved—but not the way its proponents propagate. Because of the uncertainty of an economic justification, a rule of law legitimation is mostly advanced in defense of the international investment system. However, in an investment context, even the rule of law can be too much of a good thing, namely when in conflict with democracy. The Article elaborates how best to reconcile investment protection, rule of law, and democratic government, and concludes that only a thin understanding of the rule of law is acceptable on the international plane from the vantage point of democratic theory. Following from this, the Article advocates for a re-calibration of the standard of review and identifies proportionality testing as the setting screw of choice.

This Article advocates for conceptualizing law as a design science, with a comprehensive approach that integrates formal, explanatory, and design dimensions of legal knowledge. By embracing the empirical aspects of legal scholarship, this perspective challenges the traditional image of lawyers as solely reliant on linguistic constructs. Instead, it positions them as social engineers capable of shaping legal norms and interpretations in alignment with societal needs. Through analysis and illustration of its application in diverse factual contexts, the Article underscores the necessity for this evolution in contemporary legal scholarship, particularly as teleological interpretation gains prominence in legal practice.

Given its role as a legal instrument not only to try superiors but also to prevent both them and their subordinates from committing grave international crimes, the correct understanding and proper application of the doctrine of superior responsibility is of paramount importance. This article aims to illuminate specific and some controversial aspects of the third element of the doctrine—the failure to adopt necessary and reasonable measures—and obtain a clearer and more comprehensive understanding on the superiors’ duties, its limits and main prerequisites under the doctrine. For this purpose, an interdisciplinary study was conducted to investigate whether basic principles and business aspects of corporate governance and compliance management may be applied for a better understanding and refinement of the doctrine. The underlying analysis in corporate governance and compliance covers American (U.S.), German, and international standards.

This Article argues that to protect public debate, which is vital for democratic societies, it is crucial for courts in EU Member States to apply the freedom of expression standards established by the European Court of Human Rights (ECtHR) when adjudicating cases, particularly in the context of Strategic Lawsuits Against Public Participation (SLAPPs). The Article examines whether the obligation to protect the freedom of expression extends to the non-enforcement of judgments that could have a chilling effect on public debate, and explores the legal implications within the framework of the EU’s mutual recognition regime. By analyzing the Real Madrid v. Le Monde case, the Article highlights the importance of safeguarding free speech and public debate, praising the European Court of Justice (ECJ) for providing clear guidance on when non-enforcement is necessary to prevent the suppression of the public debate. The Article concludes by emphasizing the evolving role of the ECJ in balancing mutual trust among Member States with the protection of fundamental rights, especially in light of the EU’s ongoing integration and its potential accession to the ECtHR.