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This article presents the findings of an in-depth comparative study of remand decision-making in youth courts in England & Wales and the Netherlands. Informed by qualitative empirical research, this article explores differences and similarities in remand decision-making and in the functions of remand in the administration of youth justice. A key finding is that in Dutch youth justice a paternalistic and interventionist perception of the ‘welfare principle’ seems to be an important informal driver of the (relatively) high youth remand rates, whereas in the English youth justice system the ‘welfare principle’ seems to function rather as a protective mechanism against an overzealous use of youth remand. Ultimately, the article explores how different legal traditions and ‘proximal processes’ might explain and shape cross-national differences in the use of remand for youth and identifies several areas for further inquiry that can potentially advance our broader international comparative understanding of youth remand practices.

In September 2012, the Dutch Supreme Court upheld a judgment of the Hague Court of Appeal that the eviction from basic shelter of a mother and her minor children, who did not have legal residence in the Netherlands, was unlawful. This ruling was instigated by a radically new interpretation of the European Social Charter’s personal scope and caused a major shift in Dutch policy.This article provides a case study into the legal reasoning adopted by the Court of Appeal and the Supreme Court. It argues that, instead of relying on legal doctrinal reasoning for justifying the outcome, both courts referred to factors that the general public relies on to assess people’s deservingness of welfare. This finding raises fundamental questions about the relationship between human rights law and deservingness; and calls, therefore, for further research into the relevance of deservingness criteria in judicial discourse.

While studies have drawn attention to the operationalization, and implementation challenges associated with the ECOWAS free movement protocol, our understanding of how different categories of migrants experience the protocol is far more limited. Drawing on data from interviews conducted with 23 ECOWAS migrants living or travelling to Ghana, immigration officials and a trade union representative, this paper examines the diversity of experiences of ECOWAS migrants in relation to the free movement protocol. The findings suggest that the experiences of ECOWAS nationals in areas such as awareness and knowledge of provisions in the protocol, border crossing, processes of acquiring residence and work permits and renewing permits, and rights of establishment differ remarkably by dimensions of social difference. The gender, social class and nationality of migrants are fundamental and shape the experiences of ECOWAS migrants in divergent ways. These findings have important implication for policies seeking to promote free movement in West Africa.

In the period 2014–2019, the Dutch authorities governed the duration of asylum procedures in order to control the influx of asylum seekers. They prioritised and accelerated cases with poor chances of success, while they deprioritised cases with good chances of success. This resulted in long asylum procedures for asylum seekers with a likelihood of success and short asylum procedures for those with a poor chance of success. This article contends that this Dutch policy is an illustration of ‘temporal governance’: a governmental strategy to control and discipline migrants by means of time. This form of governance is based on a detailed knowledge of processes of asylum procedures, which enables qualification, categorisation and differentiation between different groups of asylum seekers. The focus of this research is on how such temporal governance functions and how it relates to law. A traditional understanding of law and sovereign power entails that law legitimates and restricts power. Strikingly, temporal governance regulating the asylum procedure seems to have a different relationship to law. This article demonstrates that legal standards, in this case the standards of European Union legislation, provide Member States a large amount of room (temporal discretion) to apply temporal governance. Moreover, only a few limited legal remedies remain available, if the duration of the asylum procedure appears unlawful. Instead of limiting temporal governance, law provides ample opportunity for the acceleration and deceleration of asylum cases in order to delay due process of asylum seekers and deter others from arriving. We cannot prove that the Dutch government aimed at deprioritising and decelerating complex asylum cases and cases with good chances of success – which would have been unlawful. However, this was the net result of their chosen policy. We illustrate that instead of a legitimation and restriction of sovereign power to govern the asylum influx by means of time, law can function as a set of tactics to pursue policy aims by employing ‘temporal governance’.

How to determine whether mobile Union citizens have a right to social assistance? Research has shown how Western European Member States have made efforts to restrict Union citizens’ access to their welfare systems over the past decade, whereby lawful residence has increasingly become the linchpin for entitlement. Member States have responded strikingly differently, however, to the complex administrative puzzle of dealing with open borders, the ability to verify lawful residence and the right to social assistance over time. This article makes an analytical and empirical contribution to existing literature by asking how Member States adjust their welfare/migration administrations to fit the Union’s free movement regime and what implications this has for Union citizens. Based upon comparative case studies into the administration of social assistance rights in Germany, Austria and the Netherlands, the article develops a typology of three different models of administering Union citizens’ access to the welfare state: the form, signal and delegation models. Demonstrating how bureaucratic design impacts the stratification of social rights in the Member States in different ways, the article concludes that studying alternative administrative models offers important insights into the functioning of territorial welfare states in open border regimes.

Irregular migrants in Europe are increasingly subjected to state coercion, surveillance and spatial restrictions, such as containment, dispersal and forced transfers. Lawyers usually evaluate such practices in the light of human rights law, which only provides limited protection. For this reason, I propose an alternative normative framework to evaluate and assess coercive state practices towards irregular migrants: the concept of freedom as non-domination. In this article, I conceptualize non-domination from a rule of law perspective. To this end, I start from Lovett’s procedural account of arbitrariness; and complement this with Benton’s focus on unaccountable power and Palombella’s argument for ‘duality of law’. In the second part of this article, I apply this normative framework to coercive practices in shelters for irregular migrants in the Netherlands. This allows me to demonstrate the practical relevance and consequences of the theory. It discloses how the protection of freedom as non-domination, conceptualized from a rule of law perspective, sets more demanding criteria for the (courts of) law than the protection of human rights. At the same time, it does not require non-interference or elaborate positive obligations from the state. For irregular migrants, who do not have the right to reside in the territory, but who are entirely under the control of state power, non-domination as conceptualized in this paper provides, in my view, a necessary framework of review that ensures a kind of protection that is currently lacking.

This paper sheds light on the role of non-governmental/civil society organisations, as well as the United Nations High Commissioner for Refugees, in the externalisation of migration management in Tunisia and Egypt. These organisations are involved in migration-related activities, which, from the externalisation perspective, should prevent people from attempting the sea-crossing to Europe, thus immobilising them in North Africa. The paper is an ethnographic border regime analysis drawing on extensive fieldwork. It shows that European Union-externalisation is not a univocal and smooth process. Instead, externalisation is entangled in a complex network of actors and dynamics. Measures meant to support externalisation may produce effects contrary to those envisaged, whereas practices accomplishing externalisation goals may be in fact the result of internalisation. By analysing the various actors in their diverse practices and in their—sometimes conflictual—relationships, the paper also tries to minimise state-centrism and Euro-centrism in the study of externalisation.

Rituals are customarily muted into predictable and boring routines aimed to stabilise social orders and limit conflict. As a result, their magic lure recedes into the background, and the unexpected, disruptive and disordered elements are downplayed. Our collaborative contribution counters this move by foregrounding rituals of world politics as social practices with notable disordering effects. The collective discussion recovers the disruptive work of a range of rituals designed to sustain the sovereign exercise of violence and war. We do so through engaging a series of ‘world pictures' (Mitchell 2007). We show the worlding enacted in rituals such as colonial treaty-making, state commemoration, military/service dog training, cyber-security podcasts,algorithmically generated maps, the visit of Prince Harry to a joint NATO exercise and border ceremonies in India, respectively. We do so highlighting rituals’ immanent potential for disruption of existing orders, the fissures, failures and unforeseen repercussions. Reappraising the disordering role of ritual practices sheds light on the place of rituals in rearticulating the boundaries of the political. It emphasises the role of rituals in generating dissensus and re-divisions of the sensible rather than in imposing a consensus by policing the boundaries of the political, as Rancière might phrase it. Our images are essential to the account. They help disinterring the fundamentals and ambiguities of the current worldings of security, capturing the affective atmosphere of rituals.

This article shows the necessity of including policy concerns, in particular the need to keep signs available for competitors, when assessing a likelihood of confusion. In theAdidas/Marcacase, the CJEU ruled that the need to keep signs freely available for other economic operators cannot be a relevant factor in the infringement analysis. This is particularly problematic in relation to appealing signs such as stripe motifs. These signs not only serve as a source identifier, but also appeal to consumers and therefore give trademark owners an advantage over competitors on the market. In order to offer sufficient room for the concerns of trademark owners and competitors (and ultimately also consumers), it is essential to apply normative corrections not only in favour of trademark owners but also in favour of competitors. The current analysis of confusion in EU trademark law already contains a normative correction in favour of trademark owners. From an empirical perspective, the more distinctive the trademark, the less likely consumers are to be confused when confronted with a similar sign. The CJEU, however, assumes that consumers are more likely to be confused when confronted with signs that are similar to a highly distinctive trademark. In a trademark system where this normative correction is possible in favour of trademark owners, similar steps should be taken to give sufficient weight to the interests of competitors. In this light, this article concludes that theAdidas/Marcadecision should be overruled.

This article criticises the growing reliance on environmental and social (ES) policies by development finance institutions (DFIs), and the increasing use of corresponding accountability mechanisms to challenge development projects. The concept of juridification is used to explain this phenomenon and shows the crucial role of global civil society in expanding the reach of ES policies and accountability mechanisms. Linked to the competition between DFIs in the “marketplace” of international development finance, juridification also enables legal avoidance practices by the DFIs. The article shows that juridification in international development finance is “tragic” because the expansion of ES policies further marginalises the affected groups needing legal protection.

Free movement is intended to bring Europeans together. This article suggests it may have the opposite effect: it may drive them apart. The mechanism involved is sorting. This happens when people are free to choose where to live, and choose a community which matches their preferences. This match can come about in different ways, but the result of them all is that people of particular preferences are clustered together, leading to society being structured as a series of adjacent mono-cultures. It is not a large step to suggest that this arrangement is likely to cause alienation between the communities. The fact of sorting means that they have less in common than they did before. For Europe, if sorting happens, this would imply that polarization between states would increase and the governability of the EU would be threatened. Free movement may be less a mechanism of integration than one of disintegration.

This paper aims to contribute to The History of the Family by researching the historical relationship between family and state, and the roles that the concepts of 'race' and 'mixture' played. To this end, it analyzes the regulation of Chinese–Dutch marriages in the interwar period and Second World War in the Netherlands. It argues that the ways in which these interracial marriages were regulated were informed by colonial discourses on the Chinese as racialized others. This resulted in a systematic pattern of exclusion of Chinese migrants in the Netherlands, in which they were registered, fingerprinted, counted and deported. Part of these discourses focused on Chinese 'interracial' marriages with Dutch white women. This resulted in the 'regulation of mixture' in which state officials aimed to prevent such marriages, through migration law, document requirements and premarital counseling. During the war, these marriages were considered a 'racial shame' and relationships were broken up by arresting Chinese husbands before marriage. More research is needed to learn more about the extent of these practices and to know whether they were applied to racialized groups other than Chinese.

Schmitt’s essay ‘The Buribunks’ reflects some age-old problems, tensions and paradoxes of international legal theory, including Schmitt’s own treatment of the history of international law. Both Schmitt’s essay and international legal theory are unable to define their main subject in a fully coherent way. They oscillate between naturalism and positivism, facticity and normativity and between internal and external perspectives. However, the inability to define its main subject does not as such discredit international legal theory or Schmitt’s essay. On the contrary: it is the specific paradoxes and tensions that define what it is to engage in international legal reasoning, just as it is the endless going back and forth between opposite poles that makes the reader familiar with the strange character of the Buribunks.

As the Indian economy is slowly opening up after the COVID-19 lockdown, it seems like a number of states are overriding even the most basic human rights of their workers in the name of labour reforms.These moves have been criticised in a number of national and international spheres, as along with the Constitution of India, they are inconsistent with various international instruments. Under these circumstances, this article provides a comprehensive view of the changes that have been made and why they are inhumane and derogatory towards the worker communities, and suggests possible ways forward to remedy the atrocious situation. © Policy Press 2021

In discussions about the Greek debt crisis, the refugee crisis, and EU regional policy, appeals to solidarity are often made. European Union citizens and member states are asked to be solidary with Greece, with member states visited by large numbers of refugees, and with regions burdened instead of benefitted by the internal market. It is not so clear, however, what this appeal to solidarity is based on or in what way it differs from (and relates to) demands based on justice. This paper argues that normative theories of EU solidarity usually do not discriminate systematically between solidarity and justice or at least do not problematise the way in which these standards are related. The result is that EU crises cannot be analysed properly. In this paper, I explain why Kantian legal thought (Kant in The metaphysics of morals (revised edition). Cambridge University Press, Cambridge, 2017; Ripstein in Force and freedom: Kant’s legal and political philosophy, Harvard University Press, Cambridge, 2009; Rawls 1993) helps us understand the underlying issues more clearly.

The introduction of advanced new technologies is transforming the space industry. Artificial intelligence is offering unprecedented possibilities for space-related activities because it enables space objects to gain autonomy. The increasing autonomy level of space objects does not come without legal implications. The lack of human control challenges existing liability frameworks. This paper reviews the provisions of the Outer Space Treaty and the Liability Convention as the main legal documents introducing the legal grounds for attributing liability in case of damages caused by autonomous space objects. Looking at the limitations of these legal frameworks in what concerns the attribution of liability, this paper identifies the conditions that could cause a liability gap. The amendment of the Liability Convention, the concept of "international responsibility" introduced by Article VI of the Outer Space Treaty and several international law principles are analysed as potential solutions for preventing the liability gap and mitigating the risks posed by autonomous space objects.

This article discusses the politics of the Palestinian Youth Movement (PYM) – a contemporary social movement operating across a number of Arab and western countries. Unlike analysis on the Arab Uprisings which focused on the national dimension of youth activism, we explore how the PYM politics fosters and upholds an explicitly transnational anti-colonial and intersectional solidarity framework, which foregrounds a radical critique of conventional notions of self-determination based on state-framed human rights discourses and international law paradigms. The struggle becomes instead framed as an issue of justice, freedom and liberation from interlocking forms and hierarchies of oppression.\ud \ud KEYWORDS: Palestine, transnational social movements, intersectionality, human rights, anti-colonialism

National education policies often emerge from the global arena. These global policy norms hold the promise that reforms will produce similar education and development outcomes in different contexts. However, research on how and why global education reforms are practised ‘on the ground’ and with what effects is still scant. In this paper, we investigate how two global education agendas, namely Universal Primary Education (UPE) and Competency-Based Education (CBE), are enacted and re-contextualised in Uganda and Mexico. By drawing on data obtained from extensive field research in both countries, we explore how these global policies were translated into practice within their situated, professional, material and external contexts. Our research shows that in both cases the enactment of global policies differed widely from universal agendas. We, therefore, argue that global education norms in education can also reproduce existing inequalities or even lead to new forms of inequalities at the local level.

The role of the victim in the criminal trial process has evolved considerably in recent decades. On a European level, an important driver has been the EU Directive 2012/29/EU, according to which European countries are legally bound to afford certain rights to crime victims. In the Netherlands, the EU Directive has instigated several extensions of existing victims’ rights, and in the Code of Criminal Procedure a separate section has been devoted to the victim. The current study specifically addresses one of the victims’ rights, that is, the right to be legally represented. The Dutch government has financially invested in access to and specialization of victim lawyers in order to promote the realization of victims’ rights, specifically for victims of serious crimes and sex offences. The goal of the current study was to investigate the added value of victim lawyers and the extent to which they contribute to the fulfilment of victims’ rights in the criminal law process. A literature study was conducted to examine legislation pertaining to victims’ rights; a questionnaire study was conducted to investigate the perspective of victim lawyers ( n = 148); and interviews were conducted to examine the perspective of the police, Victim Support Netherlands, Public Prosecuting Service, and criminal courts ( n = 17). The results show that victim lawyers were important to the realization of victims’ rights. They were considered most necessary with respect to the right to claim compensation and with respect to the right to gain access to the case file. They were also required because victims’ rights have not yet been smoothly incorporated into legal practice. In addition, victim lawyers’ presence in the courtroom was considered important because it contributes to victims experiencing that they are taken seriously. It has been concluded that the support of victim lawyers is an important contribution to victim participation in criminal proceedings.

This article discusses the concept of misrecognition to analyse international legal ordering in the practice of colonial treatymaking. As critical interventions to the debate on recognition have made clear, recognition is about exclusion as much as it is about inclusion. The most obvious example is the nineteenth-century applications of the standard of civilisation, where the European Family of Nations introduced the criterion of ‘civilisation’, which excluded non-European entities as sovereigns and legitimised their colonisation. But at the same time colonial treaties included the ‘savage rulers’ as signatory powers, and thus legal persons within the international legal order that at once excluded them. This contribution to the Special Issue discusses these treatymaking practices as a practice of misrecognition; not because it misrecognises some natural, essential, or true identity of the indigenous entities, but as a misrecognition of the international order’s own conditions of possibility through practices that simultaneously constitute that order and undermine its constitutive conditions. A rereading of Hegel’s famous master–slave metaphor through the concept of misrecognition sheds light on the reversals and contradictions of the colonial legal enterprise and reveals the aporia of the contemporary international legal order by showing the void at its heart.

The consequences of a prolonged non-accession of the European Union to the European Convention on Human Rights following Opinion 2/13 of the Court of Justice of the European Union may very well affect the longer-term effectiveness and viability of the Convention system. This contribution gives a succinct analysis of the institutional link between the Convention system and the EU legal order, and of the more recent interaction between the two systems, arguing that both were on what seemed to be a collision course until recently. The author stresses the continued need for an institutionalised arrangement between both regional courts working in the same geographic area interpreting similar human rights standards.

Since the end of the Cold War, migration law and policy of the global North has been characterised by externalisation, privatisation and securitisation. These developments have been conceptualised as denying access to migrants and as politics of non-entrée. This article proposes to broaden the analysis, and to analyse unwanted migration as merely one form of international human mobility by relying on the concept of the global mobility infrastructure. The global mobility infrastructure consists of the physical structures, services and laws that enable some people to move across the globe with high speed, low risk, and at low cost. People who have no access to it travel slowly, with high risk and at high cost. Within the global mobility infrastructure, travellers benefit from advanced forms of international law. For the excluded, international law reflects and embodies their exclusion before, during and after their travel to the global North. Exclusion is based on nationality, race, class and gender. The notion of the global mobility infrastructure allows for questioning the way in which international law reproduces these forms of stratification.

Recent jurisprudence of the European Court of Justice (ECJ) marks a striking shift towards a more restrictive interpretation of EU citizens’ rights. The Court’s turnaround is not only highly relevant for practical debates about ‘Social Europe’ or ‘welfare migration’, but also enlightening from a more general, theoretical viewpoint. Several recent studies on the ECJ have argued that the Court is largely constrained by member state governments’ threats of legislative override and non-compliance. We show that an additional mechanism is necessary to explain the Court’s turnaround on citizenship. While the ECJ extended EU citizens’ rights even against strong opposition by member state governments, its recent shift reflects changes in the broader political context, i.e. the politicisation of free movement in the European Union (EU). The article theorizes Court responsiveness to politicisation and demonstrates empirically, how the Court’s jurisprudence corresponds with changing public debates about EU citizenship. Recent jurisprudence of the European Court of Justice (ECJ) marks a striking shift towards a more restrictive interpretation of EU citizens’ rights. The Court's turnaround is not only highly relevant for practical debates about ‘Social Europe’ or ‘welfare migration’, but also enlightening from a more general, theoretical viewpoint. Several recent studies on the ECJ have argued that the Court is largely constrained by member state governments’ threats of legislative override and non-compliance. We show that an additional mechanism is necessary to explain the Court's turnaround on citizenship. While the ECJ extended EU citizens’ rights even against strong opposition by member state governments, its recent shift reflects changes in the broader political context, i.e., the politicization of free movement in the European Union (EU). The article theorises Court responsiveness to politicization and demonstrates empirically, how the Court's jurisprudence corresponds with changing public debates about EU citizenship.

As the use of the Internet and online platforms grows, the scale of collecting and processing personal data and turnovers have increased correspondingly.1At the same time, public awareness about the Internet turning into a genuine profiling and advertisement machine, as well as a powerful surveillance instrument, grows. More people today are concerned about the ways in which public and private actors store and use private information. Many individuals note that they lose sight of the consequences once they give consent to the collection of their sometimes most intimate personal data. The Snowden revelations and the recent Facebook and Cambridge Analytica scandal have only reinforced this public awareness.Objections against these data processing practices cannot be explained as breaches of data protection or privacy regulation alone. In this Article, it is argued that recently passed regulations fail to solve the unease of data subjects as other, more fundamental values are at stake here. A different or complementary ethical and legal framework is needed to interpret this generally felt unease vis-à-vis current data practices and secondly to confront future developments on the data market. The concept of human dignity may be a helpful perspective in this respect. In the context of data processing, human dignity is generally interpreted in a quite specific manner, such as contributing to the empowerment and self-determination of autonomous individuals. It can be argued, however, that human dignity—in the context of the commodification and commoditization of online personal data—should be seen in a different, quite opposite, light. In sum, future regulation of privacy and data protection attention should shift towards more constraining dimensions of human dignity.

The current World Anti-doping Code can be characterised as a tough approach to doping. In this paper we investigate how the World Anti-Doping Agency (WADA) justifies this tough approach. To this end, WADA advances two justificatory arguments. It maintains, first, that protection of the spirit of sport warrants tough measures and, second, that athletes have voluntarily consented to the Code. We argue that in the way they are presented by WADA, neither of these arguments can withstand scrutiny. In the second part of the paper, we go on to show that these arguments are in fact ideological in nature. The specific aim of these arguments is not to be correct, but rather to distort social reality, because in this way they can be used to ward off any critical discussion of the Code. We conclude that WADA’s interest is to create a façade of justice, not in serving justice itself.

Asylum law functions through a dichotomy between an idealized notion of Europe as a site characterized by human rights, and non-European countries as sites of oppression. In most social sciences and humanities literature, this dichotomy is seen as legitimizing European dominance and exclusion of non-Europeans. However, it is the same dichotomy which is used by asylum seekers to claim inclusion through the grant of asylum. Focusing on the inclusive potential of this exclusive dichotomy allows us to explore the ambiguities inherent in the dichotomy. In asylum claims based on persecution on account of gender and sexuality, it becomes evident that not all human rights are considered equally fundamental. In many cases, asylum seekers are required to renounce human rights in order to prevent persecution, for example by complying with patriarchal family norms. Even where this requirement is rejected, asylum law illustrates the ambiguous relation between Europe and human rights.

This article argues that due to their position and task in society, legal professionals are confronted with specific difficulties connected to contemporary circumstances. To outline these circumstances, this article draws on the work of Ulrich Beck and Zygmunt Bauman and places both theories within the late modernity. Lawyers need to be able to deal with the difficulties late modernity poses and are therefore in need of appropriate knowledge and skills. Law schools should offer relevant schooling so that their students are equipped to deal with the difficulties confronting them in late modernity’s society. This article offers a first inquiry into the challenges that lawyers currently face, alongside anticipating alteration of academic law school programs by clarifying the challenges caused by two societal processes in late modernity, namely (1) the increase of technological possibilities and, simultaneously, the demystification of science; and (2) globalization. These processes lead to a complex society ruled by uncertainty that faces the challenge of allocating responsibility. In addition, some initial suggestions are presented regarding the conceivable adjustments to academic legal education in late modernity.

This article identifies two mistakes commonly made about the concept of punishment. First, confusion exists about when an analysis of punishment counts as retributive, and when as justificatorily neutral. In particular, a fair number of legal scholars claim to analyze punishment in a neutral way, but closer inspection shows that many of these definitions are not justificatorily neutral. Second, legal scholars tend to analyze the concept of punishment very restrictively, with a focus on the intention of the legislator. While there may be good reasons to restrict the scope of the concept of punishment in the legal arena, from a philosophical point of view, restrictive analysis is not fruitful. It is a bad starting point for critical evaluation, because it is perfectly possible for impositions generally experienced as punitive not to be classified as such. This is all the more troublesome given that these impositions often contain fewer safeguards than are offered in criminal law and that there is sometimes a taboo on the language game related to punishment. I argue that these problems can be overcome by embracing an inclusive, justificatorily neutral concept of punishment that takes the outward appearance of the harm inflicted as its starting point.

The central question in this article is whether an empirical-legal approach of victimhood and victim rights could offer a sufficient basis for proposals of legal reform of the legal system. In this article, we choose a normative-critical approach and raise some objections to the way in which part of such research is currently taking place in the Netherlands, on the basis of two examples of research in this field, one dealing with compelled apologies as a possible remedy within civil procedural law and the other with the victim’s right to be heard within the criminal legal procedure. In both cases, we argue, the strong focus on the measurable needs of victims can lead to a relatively instrumental view of the legal system. The legal system must then increasingly be tailored to the wishes and needs of victims. Within this legal-empirical, victim-oriented approach, there is little regard for the general normative principles of our present legal system, in which an equal and respectful treatment of each human being as a free and responsible legal subject is a central value. We argue that results of empirical-legal research should not too easily or too quickly be translated into proposals for legal reform, but first become part of a hermeneutical discussion about norms and legal principles, specific to the normative quality of legal science itself.

In this article I identify the principles of justice by which an economic union is to be constituted. For this purpose, I extend John Rawls’s constructivist theory of justice to economically integrated societies. With regard to the principles identified, I defend a twofold claim. First, the principles of economic union generated by this extended procedure of construction can serve as common points of reference for the subjects of an economic union. Second, these principles cannot come into conflict with similarly constructed prior principles of social justice and international justice.

Ambivalence about rights is well known: rights may both challenge existing injustices while simultaneously re-enforcing sovereign regulatory control over citizens. In this article, we focus on the paradox that potentially radical and transformative claims to rights are made at a site – civil society – that under liberal governmentality has increasingly become a site of government. By exploring the unionization of undocumented migrant domestic workers (MDWs) in the Netherlands, we aim to show how rights claims are shaped and controlled by civil society. Using the analytical category of (in)visibility, the case study discloses the dualistic role of the union. On the one hand, the union operated as a site of resistance supporting undocumented MDWs to make their rights claims. On the other hand, it operated as a site of government of the same undocumented MDWs by selectively promoting work-related rights claims and excluding more radical claims for the right to come and go.

Purpose This study aims to analyse the effects of the Presidential Powers (Temporal Measures), amendment to the Money Laundering and Proceeds of Crime Act to include legal practitioners under the list of designated non-financial business and professions. Design/methodology/approach The study is a textual analysis of anti-money laundering legislation [anti-money laundering (AML) legislation] within the context of legal practice in Zimbabwe. Findings The amendment put Zimbabwe on the international standard in the fight against money laundering, as legal practitioners have become a soft target for money laundering. Despite its noble aim, in Zimbabwe there is anecdotal evidence that the AML legislation turns lawyers into watchdogs or law enforcement agents. On the contrary, the amendment prevents lawyers from falling to the mercy of organised criminals and money launderers. Furthermore, there is a dearth of empirical research that can demystify the impact of some of the provisions of this law on contested issues, such as legal professional privilege. Research limitations/implications This study aims to outline the rationale for anti-money laundering policy and law. This study will analyse how the issue has been approached in other jurisdictions such as England and Wales. The paper will then try to establish coherent principles in the prevention of money laundering. This study will also suggest a number of recommendations as to how Zimbabwe could approach some of the issues while still considering the need to balance competing influences of legal privilege and money laundering regulations. Practical implications The paper will bring this issue to the fore and initiate an informed debate, as well as provide practical talking points for legal practitioners to embrace the AML regime and to engage policymakers on the issues that need reform. Originality/value This paper provides the first in depth analysis of the money laundering legislation in the legal fraternity in Zimbabwe and goes to offer practical tips and entry points on the application of the regulations or for advocacy towards any reform as might be needed.

This article discusses the legal concept of the person against the background of technological developments. Emerging technologies are offering radical ways to transform the biological and physical aspects of life. Several legal scholars claim that the technological artificialization of human life also calls for a more artificial, disembodied account of the natural person in law. According to them, the legal distinction between natural persons (human legal subjects) and artificial persons (non-human legal subjects, such as corporations) is becoming diluted and increasingly redundant. This article argues that, in an era of growing technological and postmodern disembodiment, the traditional legal distinction between natural and artificial persons remains important, albeit in a different form. An examination of the legal concept of the person in biomedical law suggests that law's category of the natural person still has its merits, not justdespitethese technological developments, but, remarkably enough, alsobecauseof them.

In the face of restrictive migration policies, migration brokers in emigration countries sell services that are meant to facilitate departure projects. Not all aspiring migrants who give money to migration brokers are able to travel. This article asks how aspiring migrants in Anglophone Cameroon understand and deal with the potential for deceit by migration brokers. The analysis is based on sixteen months of fieldwork conducted between 2007 and 2013, predominantly in the town of Buea. By studying the social effects of European migration management through the lens of norms and values in a place of departure, the article argues that migration brokers cannot be understood exclusively as actors who are instrumental for the realization of migration trajectories. In a context where European migration management frustrates aspirations for global citizenship, migration brokers are also dealers in hopes for global belonging. Relations of trust between brokers and aspiring migrants are articulated through local terms such as 'dokimen', 'feymen' and 'big men'. The article's two case studies examine relations between migration brokers and aspiring migrants within a broad social framework that includes family dynamics, as well as with a temporal perspective that stretches beyond the initial moment of failed departure. Resume: Face aux politiques de migration restrictives, des intermediaires de la migration vendent des services destines a faciliter les projets de depart dans les pays d'emigration. Les candidats au depart qui versent de l'argent a des intermediaires de migration n'ont pas tous la possibilite de voyager. Cet article s'interroge sur la maniere dont les candidats au depart au Cameroun anglophone comprennent et gerent la possibilite d'etre trompes par les intermediaires de la migration. L'analyse s'appuie sur seize mois de travaux menes sur le terrain entre 2007 et 2013, principalement dans la ville de Buea. En etudiant les effets sociaux de la gestion de la migration europeenne sous l'angle des normes et des valeurs dans un lieu de depart, l'article soutient qu'on ne peut pas comprendre les intermediaires de la migration exclusivement en tant qu'acteurs dont le role est instrumental pour la realisation de trajectoires de migration. Dans un contexte ou la gestion de la migration europeenne frustre les aspirations a une citoyennete mondiale, les intermediaires de la migration sont aussi des marchands d'espoir d'appartenance mondiale. Les relations de confiance entre les intermediaires et les candidats au depart s'expriment a travers des termes locaux tels que « dokimen », « feymen » et « big men ». Les deux etudes de cas de l'article exami9nent les relations entre les intermediaires de la migration et des candidats au depart dans un large cadre social qui inclut la dynamique familiale, ainsi que sous une perspective temporelle qui va au-dela du moment initial de l'echec du depart.

In this article, we explore the extent to which a dignitarian ethic can effectively shape regulatory policy in the area of biomedical practices which involve the use of human embryos. Drawing on the comparison of how Italy and Germany deliberated the ways in which assisted reproductive technologies and human embryo stem cell research should be governed, we explore the conditions that affect the potential of a dignitarian ethic to effectively shape countries’ policy on these issues. We argue that two factors substantially affect its success. The first factor is the position of dignitarianism in the country’s bioethical landscape, that is, whether it is the dominant bioethical perspective or competes with other perspectives for regulatory relevance. The second factor is the willingness of the regulators to strike compromises with their opponents if dignitarianism is not the main bioethical perspective and competes with other ethical perspectives for regulatory relevance. Building on our analysis, we conclude by drawing three general patterns of the relationships between countries’ bioethical configurations and their regulatory policy.

This article takes the reader inside four border security fairs in Europe and North America to examine the knowledge practices of border security professionals. Building on the border security as practice research agenda, the analysis focuses on the production, circulation, and consumption of scarce forms of knowledge. To explore situated knowledge of border security practices, I develop an approach to multi-sited event ethnography to observe and interpret knowledge that may be hard to access at the security fairs. The analysis focuses on mechanisms for disseminating and distributing scarce forms of knowledge, technological materializations of situated knowledge, expressions of transversal knowledge of security problems, how masculinities structure knowledge in gendered ways, and how unease is expressed through imagined futures in order to anticipate emergent solutions to proposed security problems. The article concludes by reflecting on the contradictions at play at fairs and how to address such contradictions through alternative knowledges and practices.

In current debate, it is frequently argued that EU law requires or facilitates the implementation of ‘downturn-austerity’, that is, spending cuts, wage deflation, and tax increases during an economic downturn. More specifically, this ‘thesis of the constitutionalization of downturn- austerity in Europe’ has two dimensions: a (narrow) normative and a (broader) causal one. The former holds that downturn-austerity is a legal obligation under EU law; the latter assumes that the European constitutional framework effects downturn-austerity without neces- sarily claiming a legal obligation. I will argue that the former is incorrect, and yet shapes the hegemonic understanding of EU law. I will maintain that the normative constitutionalization thesis should be understood as an ideological communication, which aims to cloak the significant distributive effects of the crisis measures with an unwar- ranted aura of legal necessity, political coherence, and academic legitimacy.

This chapter analyses the politics of ‘mixedness’ in a Dutch colonial and metropolitan context. We describe the colonial context of the racial categories used in Caribbean colonies and the Dutch East Indies (now Indonesia) and how multiracialized individuals were positioned within these racial hierarchies. Phenotype and gender were central to these hierarchies. We demonstrate that the political and social constructions of multiracialized categories during colonialism was not a reflection of the transcendence of racism, but rather a potent sign of a deeply uneven distribution of legal status and opportunities along racial lines. We demonstrate how these colonial racialized categories were translated after decolonization to fit in the supposedly ‘non-racial’ metropolitan context in which historically, religion and nationality had been used as markers of difference. Looking at the present, we analyse the shift over time of markers of difference: from religion to nationality (including dual nationality) to the ‘allochthone-autochthone’ binary, and finally ‘people with a migration background’. Given the often hierarchical and essentialist nature of top-down politics of classification in the past and present, the authors question the morality of defining and counting ‘mixed relationships’ and their offspring. Even if there would be room for self-definition, the question remains who is counting and why.

This article discusses how the Western imaginary that the market and intimacy are separate and hostile spheres affects some women’s migratory projects in Italy. It traces the place and meaning of this trope within contemporary feminist and sex workers rights’ activists debates on prostitution. Drawing from ethnographic research, it shows how migrant women prevail in and navigate jobs that transgress this normative separation–care and sex work–resulting in their positioning as ‘intimate Others’ or ‘risky tenants’. It argues that addressing women’s predicaments requires tackling the intersecting structures of inequality moulding the conditions under which they perform and exchange labour.

Carrier sanctions are penalties given to transport companies if they carry improperly documented passengers. While the literature on carrier sanctions grapples primarily with comparative legal and normative questions surrounding asylum-seeking and democratic accountability, the empirical material covering the implementation of carrier sanctions is more limited. None of the literature to date has examined the statistical trends in the enforcement of carrier sanctions by European states. This article fills this gap and provides the first comparative analysis of statistics on the yearly number and costs of carrier sanctions. Through a new dataset on the implementation of carrier sanctions in 10 European countries between 2000–2014, the data reveal a puzzling variation in carrier sanction implementation over time, with wide variation among states, due in part to the un-reliability of the data. These variations are discussed in the context of current legal, political, and migratory trends in Europe.

While ideas on ‘earned citizenship’ have been around in discussions on the coexistence of freedom of movement and nationally-bounded welfare states in the European Union, both the concept and the process it entails have hardly been explored in connection to EU (case) law. This contribution identifies earned citizenship as a technique of government in the broader political strategy of neoliberal communitarianism, requiring Union citizens to ‘earn’ access to the welfare system through an emphasis on their individual responsibility to fulfil the economic, social and cultural conditions of membership. Analysing economically inactive Union citizens’ access to social assistance benefits, it argues that earned citizenship has been visible since the Court’s early citizenship jurisprudence, but has been reconstructed with the recentDano-line of case law.

This article argues that the existing balancing tools in EU trademark law are not sufficient to prevent the misappropriation of signs. The present article considers whether the threshold for assuming acquired distinctiveness in EU trademark law is too low. In this context, the threshold for assuming acquired distinctiveness is viewed from a legal, economic and psychological perspective. It is argued that the threshold for assuming acquired distinctiveness is not efficient enough and should therefore be applied more restrictively. The study also reveals that this instrument may create dysfunctional incentives and may in fact make it attractive for traders to invest in descriptive, cultural and non-traditional signs, because trademark owners can impact these signs acquiring distinctiveness and invest as needed until they acquire control of their preferred sign. In order to guarantee that these signs remain in the public domain, adopting an outright exclusion is necessary for descriptive, cultural and non-traditional signs that cannot be overcome through acquiring distinctiveness in consequence of use in trade.

International criminal courts (ICCs) have made a decisive contribution to the clarification of international criminal law. By interpreting generally formulated rules, the courts have elucidated the meaning of international crimes and modes of liability. However, in applying the law to individual cases, they have not always explained the interplay between general rules and case-specific facts sufficiently. In particular, the courts have often not made clear on which facts their findings are based and have not linked these facts to the applicable legal standards in a systematic way, thus creating uncertainty about the law's precise meaning and scope. This article shows how a casuistic model of judicial reasoning can help to dispel this uncertainty. In particular, it demonstrates how ICCs can use casuistic reasoning techniques to clarify the interplay between law and facts and to explain their decisions in a more transparent and structured way.

Border procedures have so far received little attention in the legal literature dealing with European asylum law. Literature on immigration detention in Europe has also neglected the use of detention in border procedures. This is remarkable because one of the reasons that Member States resort to border procedures can be traced back to the centrality of territorial presence within the modern State for the enjoyment of rights. The triangular relationship between an application for international protection, refusal of entry, and a deprivation of liberty has remained imprecise. This indeterminacy has had important repercussions for the way in which the right to liberty has been protected at the borders of Europe. However, the way in which the Recast Asylum Procedures Directive circumscribes Member States' use of this procedure is unprecedented. This article uses the Dutch implementation of the Asylum Procedures Directive in order to unpack the above-mentioned triangular relationship between an application for international protection, refusal of entry, and a deprivation of liberty. It will show that European Union regulation in this area is distinctive because it entails recognition of the fact that, when it comes to the enforcement of migration control, individual rights are at stake.

This chapter introduces the theme of the volume, populism and international law, as well as its chapters. It does so by first discussing the Dutch political reality with its increasingly populist tendencies that was on the minds of the Editors when deciding to devote a volume to this theme. Subsequently, it explores briefly the many faces of populism and the different manifestations of the relationship between populism and international law. Rather than taking the so-called populist backlash against globalisation, international law and governance, at face value, this volume aims to dig deeper beyond mere ‘backlash’ rhetoric and wonders ‘what backlash are we talking about, really?’ While populism is contextual and contingent on the society in which it rises and its relationship with international law and institutions thus has differed likewise, this chapter’s historical reflections assist in our examination of what we find so dangerous about populism and problematic in its relationship with international law. It concludes by introducing the chapters individually and to some degree in relation to each other.

It is often held that free movement within the European Union and the expansion of social rights of mobile citizens by the European Court of Justice place national welfare states under pressure, potentially leading to welfare retrenchment. Yet thorough empirical investigation of this claim has been surprisingly limited. In this article, we distinguish three possible responses to such pressures: ‘embedding’, the inclusion of Union citizens in the welfare system; ‘quarantining’, restrictive measures excluding mobile Union citizens; and ‘retrenchment’, general cutbacks in benefit programmes. Through a longitudinal comparative case study of generous non-contributory welfare benefits in Denmark and the Netherlands, we find general welfare retrenchment in response to Europeanisation strikingly limited. Instead, welfare states remain resilient by creatively quarantining mobile Union citizens from the coverage of social benefits. Legal cultures and degrees of politicization are important factors, shaping the pathways towards these creative but exclusionary responses.

Why is the fight against financial crimes such a central task for the EU? The EU has a strong interest to counter financial crimes and fraud against the EU budget as those crimes—so the EU legislator's claim is—hamper the trust in the market and undermine consumer confidence to engage in internal market transactions. In this Article, we aim to discuss the establishment of the European Public Prosecutor Office as a federal agent and the effects of this agent for establishing a robust EU financial crimes regime. Comparisons with the US system of US Attorneys—federal prosecutors—will be drawn to show that this institution has been quite effective at enhancing the protection of US financial market. The Article will then discuss to what extent the EU can, and should, learn from the American experience. We are particularly interested in the strong security focus in the EU and its consequences when it ventures into the area of financial crimes.

This special issue aims to investigate the regulatory challenges facing the EU with regard to security governance in the broad area of the fight against financial crimes and by adopting a wider outlook on how to map and understand these phenomena in their salient contexts. In recent years, security as a key word can be witnessed as increasingly penetrating policies on a national, international, and supranational level. This development is also visible in EU policies, inter alia in the EU's policy concerning the area of freedom, security, and justice (AFSJ). Coupling the word security to the concept of governance in the somewhat thought-provoking phrase “security governance” prominently cements its position in the entirety of processes and mechanisms that steer people as well as corporations or markets. Security in the EU internal context concerns to a great extent the fight against terrorism and its financing as well as the policing of EU borders. Security in this regard concerns the structure of EU law and how it can be justified at the macro-level.

After witnessing an incident, police officers may write their report collaboratively. We examined how collaboration influences the amount and accuracy of information in police reports. Eighty-six police officers participated, in pairs, in a live training scenario. Officers wrote a report about the incident, either with their partner or individually. Reports by two officers working together (collaborative performance) contained less information than reports by two officers working individually (nominal performance), with no difference in accuracy. After the first report, officers who had worked individually wrote a collaborative report. Police officers who recorded their own memories prior to collaboration included less incorrect information in the collaborative report than police officers who wrote a collaborative report immediately after the incident. Finally, content-focused retrieval strategies (acknowledge, repeat, rephrase, elaborate) during the officers’ discussion positively predicted the amount of information in collaborative reports. Practical recommendations for the police and suggestions for further research are provided.