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The Belgian Constitution holds an obligation for governmental schools to organise RE in the recognised religions and in non-confessional ethics for all children of school age. While neither the Flemish nor the French Community legislator can thus abandon RE altogether, both legislators have recently taken initiatives, moving beyond the opt-out system, towards an opt-in system and a partial withdrawal of RE in governmental schools. After a brief description of the Belgian RE system and its historical roots, we scrutinise these evolutions. Although the Constitution does offer some room for manoeuvring, not everything goes: ending the possibility for students in governmental schools to opt for RE in any of the recognised religions or in non-denominational ethics altogether would, for instance, not be allowed. This is different from the perspective of human rights instruments such as the ECtHR, which permits, but does not require governmental schools to organise moral or religious education. Following the margin of appreciation doctrine of the ECtHR, the ECHR does not pose strict limits on governmental possibilities. It remains, however, to be seen whether the Flemish and French Community will manage to stay in line with the stricter regime of the Belgian Constitution.

The disproportionate use of remand detention (i.e. pre-trial detention) for vulnerable and marginalized youth is an issue of concern globally and demographic disparities in youth remand decision outcomes have been found in many jurisdictions, including England and the Netherlands. This article aims to explore and identify potential catalysts of disparity in the collective process of remand decision-making in youth courts. Drawing from Ulmer’s ‘inhabited institutions’ perspective, and the related ‘court community model’ and ‘focal concerns model’, and empirical findings from research in Dutch and English youth remand courts, this article suggests that several distinctive mechanisms and features of the youth remand decision-making process might function as catalysts of disparity. The findings indicate that the focus on ‘risk’ and ‘welfare needs’, the distinctive context defined by time constraints, limited information, shortages of readily available services, interdependency and interdisciplinary, and high stakes, combined with the profoundly human nature of courtroom workgroup decision-making, make the remand decision-making process in youth courts particularly prone to producing unwarranted disparities. Ultimately, informed by the theoretical perspectives and empirical findings, the article provides insights into how and why disparities might occur in youth remand decisions and offers suggestions for policy, practice and future research.

In this paper, we adopt an experimentalist approach to determining the content of international human rights for assessing national mandatory work programmes for recipients of social assistance (MWPs). This approach implies going back and forth between law and experience in order to determine the better way to secure human rights in an ever-changing environment. After having identified six criteria for evaluating MWPs in the soft case-law of international bodies, we confront this emerging international human rights framework with an empirical study on MWP practices in the Netherlands. This confrontation reveals that specific aspects of the capability for voice of working welfare recipients are absent in the human rights framework and that the framework is not gender-neutral. Including these aspects, we construct an experimentalist human-rights-based instrument that is suitable for evaluating national MWPs.

In the case law of the European Court of Human Rights (ECtHR) the right of States to control migration is firmly established despite strong indications that the effects of migration control are not racially neutral. In this article we attempt to understand how it is possible that the doctrine of sovereign migration control is not considered to breach the prohibition of racial discrimination. We argue that the ECtHR’s approach to migration and racial discrimination fits a pattern in the historical development of migration law whereby the right to travel, and the power of States to restrict this right, have been consistently defined in such a way as to protect the interests of the predominantly white population of today's global North. Hence, the ease with which the racialised impact of migration control is accepted as normal and compatible with the prohibition of racial discrimination is consistent with migration law's long history as part of colonial and postcolonial relations.

This contribution discusses the Dutch possibilities of collective redress in the domain of labour law. More specifically, it examines the legal options of bringing collective actions and obtaining collective redress in Dutch courts in labour cases, and elaborates on the relevant legal framework as well as the extent to which these opportunities have been used in practice. Findings imply that the Netherlands was among one of the first European countries to introduce a general collective action system. This general collective action regime allows unions and other interest groups to raise cases to protect workers’ rights, even outside the scope of collective labour agreements. Such a collective action regime, however, is not commonly used in practice. Nevertheless, as of January 2020 the admissibility criteria for this general collective redress mechanism have been expanded and it has become an ‘opt-out’ regime, without the need for individual workers to initiate individual follow-up proceedings in the event of a successful case. The latter could improve the effective enforcement of workers’ rights in practice and could provide an incentive for trade unions and other organisations that are active in the protection of workers’ rights to incite a collective action.

With the Modernisation of the Code of Criminal Procedure, certain digital investigation powers will for the first time be given a specific statutory basis, such as the search of data carriers, open-source investigation and network searches. Nevertheless, considering the high degree of intrusiveness of such techniques, particularly with the right to privacy, it remains important to take note of the jurisprudence of the European Court of Human Rights, which continues to set minimum safeguards for the interference with private life. In this paper, we therefore conduct a brief overview of recent ECtHR case law concerning five types of digital investigation powers. We then consider the implications of this case law for the regulation of such powers in the draft Code of Criminal Procedure and for the Modernisation process more broadly.

This paper analyses the engagement of non-state actors (NSAs) in regional migration policy processes in the Economic Community of West African States (ECOWAS). It identifies four categories of NSAs...

In response to the 2015 migration ‘crisis’, the European Union intensified the externalisation of its migration policies, in particular through the EU Trust Funds for Syria and Africa, and the Facility for Refugees in Turkey. The legal construction of these financial measures is such that in many projects, normal implementation and public procurement procedures are not applied. This creates opportunities for clientelism. A limited number of actors (Europe’s ‘clients’) has emerged to implement European policies in third countries. This way of implementing externalisation projects will first be analysed in functionalist terms and in terms of path dependency. The paper will conclude by arguing that, in addition to such analyses, this way of implementing externalisation is to be understood as (a) expanding the scope of legitimate action of European states outside their territory; and (b) setting norms for international actors such as non-European states, international organisations and corporations.

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.

Over the past few decades, child sexual abuse (‘CSA’) has become recognized as a serious and major problem in modern societies. Consequently, a common denominator in modern government policy is that CSA must be criminalized and pro-actively enforced. However, if national authorities are to be able to enforce, knowledge about the abuse is essential. Yet the disclosing of information to the authorities is hampered by the hidden nature of the offence. According to the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (Lanzarote) and EU Directive 2011/93 on combating the sexual abuse and sexual exploitation of children, Member States should ‘encourage any person’ who knows about or suspects CSA to report this to the relevant authorities. To encourage such disclosure, several European governments have introduced mandatory reporting systems imposing a (non-criminal) duty on designated professionals to report information about or suspicions of CSA to the competent authorities.This article examines whether introducing a criminal duty to report CSA could be recommendable for the European Union or the Council of Europe in order to improve Member States’ knowledge of CSA and thus protect children more effectively against this type of violence. Using the outcomes of our recent study into the possibilities and impossibilities of extending the present Dutch criminal duty (aangifteplicht) to report rape, we argue that a criminal duty to report CSA is not recommendable as a means to encourage CSA disclosure by third parties.

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.

This article compares trade-union activity in support of the rights of domestic workers in the Netherlands, Germany and France. Even though trade-union membership among domestic workers is very low, trade unions have taken action to defend the rights of domestic workers in all of these countries. However, such actions have been only partial, and have not comprehensively included the needs and rights of all domestic workers. Comparing trade-union activity shows that actions in support of domestic workers have been encouraged by transnational advocacy in all three countries. While inclusive institutions have facilitated actions in France, in Germany and the Netherlands, trade-union actions have been constrained by the persistently “informal” characteristics of domestic work and by the hesitancy of trade unions to engage comprehensively with the issue of migrants’ rights.FrançaisUn plaidoyer inclusif ? Mobilisations syndicales pour les droits des travailleuses et travailleurs domestiques en Europe continentaleCet article compare l'activité syndicale en faveur des droits des travailleuses [1] domestiques aux Pays-Bas, en Allemagne et en France. Même si le nombre de travailleuses domestiques syndiquées y est très faible, les syndicats ont développé des actions pour défendre les droits de ces travailleuses dans ces trois pays. Toutefois, ces actions n'ont été que partielles et n'ont pas pris en compte de manière exhaustive les besoins et les droits de toutes les travailleuses domestiques. La comparaison de l'activité syndicale montre que les actions en faveur des travailleuses domestiques ont été encouragées par le plaidoyer transnational dans les trois pays. De plus, alors que des institutions inclusives ont facilité les actions en France, au contraire, en Allemagne et aux Pays-Bas, les actions syndicales ont été limitées par les caractéristiques "informelles" persistantes du travail domestique et par l'hésitation des syndicats à s'engager de manière globale dans la question des droits des migrants.

Zacharias Huber (1669-1732) evaluated in the revised Heedensdaegse Rechtsgeleertheyt arguments, hitherto unknown, which were brought forward in a case, pursued before the Court of Friesland and decided on December 14th 1718. The case dealt with the ownership of a box with gold, found on the beach of Schiermonnikoog in 1710 and which came from the ship De Witte Haas, shipwrecked off the coast in 1674. Newly found civil records show that Maria Wilree (1667-1729) from Amsterdam started the procedure to recover the box with gold, because it purportedly belonged to her father Dirck Wilree (1636-1674), director-general for the West India Company in Guinea and who died in the shipwrecking. She took legal action against Henrica Helmhout, regent of Schiermonnikoog and receiver of wrecks, and Gillis Vermeersch, representative of the West India Company. Only Vermeersch was successful in his argument, which he based on the instructions of the Company: it was forbidden to transport unregistered private goods. Such goods forfeited immediately to the Company. Consequently, Wilree claimed for the Company ownership and possession of the box with gold. Helmhout claimed to be the owner by prescription. Their arguments appear not to have been convincing.

It is a truth universally acknowledged (apologies to Jane Austen) that complex and fast-moving new biotechnologies inevitably outstrip legal regulation and ethical scrutiny. Surrogacy, the subject ...

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.

Claims by many experts on the connection between corruption and human rights, and especially the realization that corruption undermines the enjoyment of human rights, have led practitioners to advocate a human rights-based approach to corruption. However, it comes at a time where the global human rights movement is under assault, this contribution addresses the emerging localization discourse in human rights. Researchers and campaigners are adapting the international human rights system to local institutions and meanings in a process of “vernacularization”. This is by taking the needs of the community and the language that makes sense locally as the entry point of human rights advocacy. The question that arises is what role can the local understanding of human rights play? This contribution suggests answers to this question by using the African concept of ubuntu (humanness) to reinforce measures against corruption.

National authorities are often reluctant to arrange for a forensic medical examination or to grant important weight to forensic medical reports in asylum cases. They do not (fully) accept that a forensic medical report may change their initial assessment of the credibility of the applicant’s asylum account. They may argue that a physician cannot establish the context (date, location, perpetrator) in which the alleged ill-treatment has taken place or the cause of a specific scar or medical problem of the applicant. Moreover, they may contend that the physician concerned did not have the expertise to write a forensic medical report. This article examines how the European Court of Human Rights (ECtHR) and the Committee against Torture (CAT) have included forensic medical reports in their assessment of asylum cases and how they have dealt with the ‘context’, ‘causality’ and ‘expertise’ argument. It shows that these bodies do not accept that national authorities refrain from arranging a forensic medical examination or attach no or limited weight to a forensic medical report submitted by the applicant, just because the applicant has made inconsistent, incoherent or vague statements. They also do not accept general references to the ‘context’, ‘causality’ and ‘expertise’ argument. However, they have accepted these arguments in some individual cases, often without clear reasoning. The article concludes that the ECtHR and CAT could provide more guidance to national authorities concerning the role of forensic medical reports in asylum cases by explicitly weighing the seriousness of the credibility issues against the forensic medical report and by paying attention to the requirements for forensic medical reports laid down in the Istanbul Protocol.

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 considers how empirical legal studies (ELS) and doctrinal legal research (DLR) interact. Rather than seeing them as competitors that are methodologically independent and static, it suggests that they are interdependent activities, which may each be changed by interaction with theother, and that this change brings both opportunities and threats. For ELS, the article argues that DLR should properly be understood as part of its theoretical framework, yet in practice little attention is given to doctrine in empirical work.Paying more attention to DLR and legal frames generally would help ELS meet the common criticism that it is undertheorised and excessively policy oriented. On the other hand, an embrace of legal thinking, particularly of critical legal thinking, might lead to loss of status for ELS in policy circles and mainstream social science. For DLR, ELS offers a chance for it to escape the threat of insular sterility and irrelevance and to participate in a founded commentary on the world. The risk, however, is that in tailoring legal analysis to what can be empirically researched legal scholars become less analytically ambitious and more safe, and their traditionally important role as a source of socially relevant critique is weakened. Inevitably, in offering different ways of moving to normative conclusions about the law, ELS and DLR pose challenges to each other, and meeting those challenges will require sometimes uncomfortable self-reflection.

In most legal orders, human germline modification is either prohibited or severely restricted. A recurring thought in these legal frameworks is that heritable genome editing would result in practices that are at odds with principles of human rights, such as dignity, justice, and equality. However, now that CRISPR is bringing heritable genome editing within human reach, the question has risen as to whether these human rights bans still make sense. The call is growing louder to lift the ban on heritable genome editing for therapeutic purposes as soon as the technology is safe for introduction in the clinic. This article critically examines these recent proposals from a human rights perspective. First, it examines the question as to how realistic the proposed distinction between the therapeutic and the nontherapeutic uses of human germline modification is in the CRISPR era. Second, it argues that these proposals rely on a one-dimensional understanding of the meaning of human rights for this issue. Finally, it suggests that this one-dimensional understanding paves the way for a regime of self-regulation by the scientific community that leaves little room for public debate on the question as to whether or how human germline modification fits in the long-term aspirations of society.

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.

This article assesses the Liberal and Fascist administrations’ shifting attitudes towards colonial concubinage during the years of the repression of the anti-colonial resistance in Italian Libya (1911–32). Also known asmabruchismo, concubinage in Libya closely resembled its counterpart in Italian Eastern Africa, as it involved middle- to upper-class Italian officers coercing colonised women into engaging in often exploitative intimate relationships. During the first 20 years of colonisation of the territory, the colony's military administration employed an ambiguous stance regarding the practice, condemning it discursively to ingratiate itself with the local elites while unofficially allowing it to provide safe sex to its officers. When the resistance was defeated in the early 1930s, and the Fascist administration began its demographic colonisation plans, colonial concubinage was prohibited as out of place in a racially segregated settler colony. This article employs an analysis of official archival sources to trace the regulatory framework that shaped the lives of the Libyan women and Italian officers engaged in concubinage in a shifting colonial society. The colonial administrations’’ regulatory efforts toward colonial concubinage testify to the crucial role that Libyan women and racially ‘‘mixed’’ relationships played in shaping categories of race, class, and gender relative to the Italian colonial context.

This article assesses the role that institutional concern for the possibility of interracial marriages played in the Italian Fascist party's internal debate regarding the legal status of Libyans in the second half of the 1930s. Following the end of the 'pacification' of the Libyan resistance in 1932, Governor Italo Balbo pushed for the region's demographic colonization and the legal inclusion of the colonial territory and its population within the metropole. In contrast, Fascist Party officials in Rome endorsed starker racial segregation in the colonies based on the racist ideology that permeated the regime after the declaration of the empire in 1936. The legal inclusion of Libyans within the metropolitan body politic touched upon the regime's most sensitive theme: the need to avoid any promiscuity that could interfere with the racial consciousness of Fascist Italy. This article analyses this dispute through the lens of interracial marriage and concubinage regulations, framing it into the definition of a normative standard of Italian whiteness through the racialization of the colonial Other.

One of the most iconic and concrete encounters one can have with international law is to visit its institutional buildings. This article aims to shed light on the ambivalent aspirations reflected by the architectural design of the International Criminal Court in The Hague and the European Union buildings in Brussels. It provides a sightseeing tour through the architectural landscape of these two ‘legal capitals’ and explores the architectural embodiment of international law’s imaginaries through discussing three main issues: (1) the representation of values and needs; (2) embeddedness within the city; (3) audience expectations. It argues that the physical sites of institutional buildings and the public events that take place at these sites are not trivial to the practice of international law. These sites and the activities and interactions on their grounds (re)produce stories that affect our understanding of what international institutions are and what they mean to us. In particular in the international setting, where institutional legitimacy is not a given, the building’s architecture is an important means of communication. This article explores how the architectural design invites or discourages engagement and how it facilitates an encounter between the institutions and their multiple audiences.

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.

Ongoing discussions about autonomous weapons typically share concerns of losing control and the potentially destabilizing consequences for global security. To the extent that there is any consensus among states, academics, NGOs and other commentators involved in diplomatic efforts under the auspices of the UN Convention on Certain Conventional Weapons, it is grounded in the idea that all weapons should be subject to meaningful human control. This intuitively appealing concept immediately gained traction, although at a familiar legal-political cost: nobody knows what the concept actually means in practice. Although global discourses on policy and governance are typically infused with ambiguity, abstract concepts are of little use if they ignore the operational context that confronts the military in their application. This article places this intuitively appealing concept in context, and thus examines it in operational practice. Paying attention to this military practice is important as it demonstrates that meaningful human control is not the only, or the best, approach through which to characterize the human role and govern the challenges raised by autonomous weapons.

In 2017, the Dutch alternative dispute resolution (ADR) initiative e-Court handled 20,000 debt collection claims via an online arbitration procedure, and this number was expected to double in 2018. In September of that same year, the Chairman for the Council of the Judiciary, Frits Bakker, argued on the Day for the Judiciary that in the future most lawsuits can be handled automatically and that a robot judge could work fast, efficiently and cheaply. However, in January 2018, Frits Bakker seemed to have changed his mind and criticized e-Court for its lack of impartiality, lack of transparency, unlawfully denying people the right to a state Court, and for being a ‘robot judge’. Ultimately, all criticism boiled down to one issue: that the defendant’s right to a fair trial was not sufficiently protected in e-Court’s procedure. This accusation led to a huge media outcry, and as a result Courts were no longer willing to grant an exequatur to e-Court’s arbitral awards until the Supreme Court had given its approval. This forced e-Court to temporarily halt its services. Questions such as ‘is arbitration desirable in the case of bulk debt collection procedures?’ and ‘are arbitration agreements in standard terms of consumer contracts desirable?’ are relevant and important, but inherently political. In this article, we argue that the conclusion of the judiciary and media that e-Court’s procedure is in breach of the right to a fair trial is not substantiated by convincing legal arguments. Our aim is not to evaluate whether online arbitration is the best solution to the debt collection claim congestion of Courts in the Netherlands, but instead to assess e-Court’s procedure in the light of Article 6 of the European Convention of Human Rights. The conclusion is that e-Court’s procedure sufficiently guarantees the right to a fair trial and thus that the criticism expressed was of a political rather than legal nature.

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.

The European Court of Human Rights increasingly deals with migrants’ complaints about destitution in their host state under Article 3 of the European Convention on Human Rights (the prohibition of inhuman and degrading treatment). This case law has been criticized for not being consistent and/or for not providing migrants with enough protection. Based on a systematic case law search, in this article, I analyse Article 3 case law on migrants’ destitution from a new perspective: the concept of freedom as non-domination, as developed in (neo) republican theory. It will argue that, seen through this lens, many tendencies in the Court’s case law can be explained and constructed as consistent, and it is submitted that in this way the Court does provide migrants with important protection against unfreedom. Nevertheless, I also argue in the article that the case law could be improved in a number of ways in order to provide more effective and robust protection against domination.

Currently, the Council of the European Union is negotiating the European Commission’s recent proposal on cross-border mobility. This paper provides an overall assessment based on the proposal’s central pillars: freedom of establishment and protection of the interests of creditors, shareholders, and employees. The proposed directive meets a real necessity for regulation on a European level and pursues an ambitious agenda. While the general approach is excellent, there is room for improvement on some issues of importance.

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.

This article demonstrates that the role of the European Commission in the area of asylum policy is characterised by an imbalance between politicisation and rationality. Politicisation of the role of the Commission is especially visible in its proposals for border procedures in the New Pact on Migration and Asylum. We show that the efficiency and effectiveness of these proposals are not supported by evidence or a thorough assessment of past EU action, as required by Better Regulation. The result is that they fail to address the structural problems that exist with regard to the implementation and application of EU law at external borders. The broken balance between politicisation and rationality in the legislative process leads to a prioritisation of security over freedom and justice. We argue that it needs to be compensated by a stronger role of the judiciary.

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.

© 2021, The Author(s), under exclusive licence to Springer Nature B.V. part of Springer Nature.This article evaluates and (re)conceptualizes the notion of causation in international criminal law by using insights from legal theory and domestic criminal law. The article draws a distinction between empirical and normative causality and shows that in international case law emphasis has thus far been on empirical causality, whilst the meaning normative causality remains rather undefined and elusive. This is unfortunate, since normative causality is particularly important in international crimes cases, where the empirical linkage with the crimes is often remote and therefore uncertain. In an attempt to outline was normative causality means in relation to international crimes, the article draws upon legal theory and domestic criminal law to identify several factors that can be used to establish normative causation, in particular taking into account the specific nature of international crimes (as system criminality that is committed by groups), and the remote involvement of accused in such crimes.

The central question in this article is whether an empirical-legal approach to victimhood and victim rights could offer a sufficient basis for proposals for 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, on the basis of two examples of research in this field, one dealing with compelled apologies as a remedy within civil law and the other with the victim impact statement within criminal law. 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 liberal democratic legal systems, 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 character of law and legal science.

The Scania peninsula in the southwest of present-day Sweden was one of the most important trading centres of medieval northern Europe because of the presence of vast amounts of herring which attracted large numbers of fishermen and traders. Behind the beach of Scania, the latter had, by region or city, their own, legally autonomous trade settlements, the so-called vittes. Initially, these were seasonal trading colonies that were used for the duration of the fair. In the late Middle Ages the vittes developed into miniature towns, small reflections of the traders’ Hanseatic hometowns. The presence on this small peninsula (c. 50 km2) of many fishermen and merchants who did business together and came from different places could easily lead to tension and conflict.What was the relationship between the spatial arrangement of the vittes at Scania, their urban representative—the so-called Vögte or governors—and the conflicts that arose between merchants in the various vittes? This question is addressed by focusing on the vittes of the Zuiderzee towns, which have hardly received attention even though they represented about half of their total number. How were the merchants from these towns represented at Scania? To what extent did the respective overlords interfere? What did the trend towards territorialization at Scania mean for the representation of the various merchant communities and their towns? It will be argued that the Vögte can be compared with consuls while the vittes can be understood as urban colonies that are comparable in several respects to the funduqs and fondacos along the Mediterranean and to the early-modern European trading posts on the coasts of Africa and Asia.

Within international law, the prohibition of aggression has the status of a peremptory norm that is of pivotal interest to the international community as a whole. The concept of aggression forms one of the bases for the exercise of the exceptional powers of the Security Council and since a few years the International Criminal Court has jurisdiction as to the crime of aggression. The importance attached to the prohibition of aggression, however, is not matched by a clear definition or by a frequent use of the concept by international political and judicial bodies. This infrequent use of the concept of aggression stands in sharp contrast to the willingness of States to use the concept as a tool to discredit their political enemies. The Eritrea-Ethiopia conflict largely follows this pattern. While both States extensively accused each other of having committed acts of aggression, the Security Council refrained from using the concept at all. The Eritrea-Ethiopia Claims Commission dealt with the aggression complaints but construed the prohibition of aggression very narrowly and approached the responsibility for violations of the jus ad bellum as a purely bilateral question and not as an issue that concerns the international community as a whole.

© The Contributors 2021.‘EU legality’ in EU migration and asylum laws can be considered as a double-edged sword. This chapter describes how, on the one hand, the CJEU, by the mere application of general principles of EU law, offered in its case-law important criteria strengthening the rights and legal protection of third-country nationals while, on the other hand, more recent developments show that the EU legislator, but also the CJEU, almost artificially excludes migration laws or decisions from the legal framework of the EU. It will be argued that developments of ‘re-nationalization’, the application of mutual trust, and the externalization of EU asylum and migration policies, challenge the applicability of general principles of EU legality, including the protection of fundamental rights and the right to effective judicial protection.

In 1970 the first Netherlands Yearbook of International Law (NYIL) was published. The current Volume is No. 50, which means that the Yearbook has now been with us for half a century. The current General Editors decided not to let this moment pass unnoticed, and have devoted this entire Volume to an analysis of the phenomenon of Yearbooks in international law as such. Indeed, not many academic disciplines have Yearbooks, so why do we? What is the added value of having a Yearbook alongside the abundance of international law journals, regular monographs and edited volumes that are produced each year? Does the existence of Yearbooks tell us something about who we are, or who we think we are, or what we have to contribute to the world?

This chapter addresses the involvement of academic research on international migration law in the political project of the global North to impose its view concerning international migration law on the global South. The purportedly well-established principle of international law that states have the right exclude foreigners has its origins in the US Supreme Court’s Chinese Exclusion case law. The doctrine holding that the right of exclusion is inherent in state sovereignty developed there has been adopted and transformed by the European Court of Human Rights. In order to show the continuing relevance of the Chinese Exclusion doctrine, I will analyse a rather everyday judgment of the European Court about boat people (J.R. et autres v Grèce 2018). This will be contrasted with a judgment about boat people from the global South, issued by the Papua New Guinea (PNG) Supreme Court of Justice (Namah v Pato 2016). I will then show how the PNG judgment, and law from the global South more generally, is sidelined in academic work, while Strasbourg judgments are treated as embodying the state of international law (even when they are being criticised). I will analyse this as an act of power erasing sources of international migration law from the global South. I will close by showing that this erasure can be, and actually is being resisted within the discipline of international law.

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.

This article offers a legal-ethical analysis of recent UK and Dutch proposals to regulate surrogacy proactively through a national system of pre-conception authorization of surrogacy agreements. Within such a system, authorities are already before conception called upon to examine and assess contractual arrangements between the intending parents and the prospective surrogate mother. This regulatory approach is presented by its advocates as a win-win for all parties involved; as bringing family law in line with the changed social reality of creating families; and as maintaining a non-permissive approach toward commercial surrogacy. In this article, we critically examine these claims. Our analysis suggests that the proposed systems may result in the facilitation of surrogacy practices with commercial, commodifying and exploitative dimensions. Moreover, although these frameworks are presented as merely regulating something that is already taking place, they silently introduce a radically new and, as we shall argue, highly problematic legal-ethical approach to surrogacy.

This edited volume presents a collection of stories that experiment with different ways of looking at international law. By using different literary lenses –namely, storytelling, the novel, the drama, the collage, the self-portrait, and the museum-- the authors shed light on elements of international law that usually remain unseen or unheard and expose the limits of what international law can do. We inquire into who the storytellers of international law are, the stages on which they tell their stories, and who are absent in these tales. We present it as a collection: a set of different essays that more or less deal with the same subject matter. Alternatively, we would like to call it a potpourri of stories, since the diversity of topics and approaches is eclectic and unconventional. By placing multiple perspectives alongside each other we aim to compare and contrast, to allow for second thoughts, and to rediscover. In doing so, we engage with the ambiguities of international law’s characters and spaces, and with the worldviews they reflect and worlds they create.