In her wide-ranging article, “An Imperial History of Race-Religion in International Law,” Rabiat Akande delves into the realms of history illustrating how the “race-religion” constellation became formative in current international law, specifically in Western discrimination toward minorities. As Akande writes, “the legacy of that past survives in the continuing interplay of the racial and religious othering of the non-Euro-Christian other.”1 This racialized-religious heritage, for instance, is evident in Western debates on the Hijab, Jewish circumcision (Brit Milah), and various other rituals practiced by religious minorities in the West. As a historian of the nineteenth century, in this essay I mainly focus on Akande's reconstruction of the historical aspect of the “race-religion” nexus. I begin by partially validating Akande's argument concerning the emergence of race-religion during the end of the nineteenth century, and by emphasizing Western racial discrimination against Islam and Judaism—the two “sister Semitic” religions. I then add what I see as important nuances that must be considered in the historical analysis of race-religion. Primarily, I illustrate how race-religion was “fluid” at times, allowing specific groups to “enter” Western civilization, while in other cases, race-religion was rigid, barring the inclusion of groups. Akande argues that the nineteenth century colonial expansion (in Africa, the Middle East, and India) dramatically contributed to the rise of the shared European categories of whiteness and Christianity. This emerging Western identity was antagonistic to the alleged “barbarism” of the non-whites and non-Christians. Nevertheless, further nineteenth-century inner-European contextualization is needed since the exclusion through race-religion also targeted, exactly at the time of this European imperial expansion, other “fellow Christian whites,” such as the Catholic Irish and Poles. It is not only “whiteness” per se that became prevalent, but a specific form of “whiteness” (e.g., Anglo-Saxon, Teutonic, Aryan) that was constantly reimagined and redefined.

Rabiat Akande's article, “An Imperial History of Race-Religion in International Law,” draws attention to the gap in frameworks of protection from religious discrimination, on the compelling rationale that much contemporary discrimination continues to work through racialization. And she provides a genealogy to show that this gap is not there by accident—it presupposes a specific set of histories that excluded the racialization of religion from protection, because such protection was devised to respond to some kinds of wrongs (especially those of concern to white Christians) rather than others. In this essay, I would like to draw out much more explicitly than she does Akande's momentous point that Jews—racialized by white Christian Europeans—once experienced and fought this very same protection gap. This story is of great historical interest in its own right, but it also redoubles the familiar lesson that colonialism never just ends. Instead, it endures in complex ways and facilitates ongoing cycles of suffering and unfreedom.

Race is a Western political project. Religious freedom is a Christian political project. The linkages between the two enabled European nations and their settlers across the globe to condemn natives, slaves, and non-European immigrants to inferior status, and in turn legalize control of their lands and bodies.1 The consequent race-religion systems of power and privilege, which inform Rabiat Akande's thesis, offer valuable insights into the racialized boundaries of contemporary Palestine-Israel discourse in the United States.2 Specifically, the racialization of Muslims and Arabs as terrorism supporters and presumptively anti-Semitic subjects them to censorship, harassment, and discrimination when they advocate for the human rights of Palestinians in Gaza and the West Bank. This essay argues that infringements on Muslims and Arabs’ dissenting speech and political activism is another way in which the racialization of religion produces a mutually constitutive form of discrimination.

At the heart of Rabiat Akande's inspiring article, “An Imperial History of Race-Religion in International Law,” is the problematization of international law as an enabler of the othering of “non-Euro-Christian” religions.1 Akande employs “the imperial history of international law” to demonstrate that “racial and religious othering were mutually co-constitutive in the colonial encounter.”2 She rightly points out that “the legacy of that past survives in the continuing interplay of the racial and religious of the non-Euro-Christian other.”3 The focus of my essay is the post-colonial/settler colony4 and post-apartheid state that is South Africa. I argue that despite its highly acclaimed Constitution,5 which values international law and human rights, colonial and apartheid legacies still exist in South Africa, and come in the form of subjugating minority religions in favor of Christianity. In particular, I focus on the failure of the South African government in 2024 to pass legislation that would legally recognize Muslim marriages despite a constitutional obligation to do so.6 I argue that the government's non-recognition of Muslim marriages for almost three decades is a result of South Africa's colonial and apartheid legacies. South Africa's international and constitutional obligations law should be at the heart of the South African government's realization of fundamental rights when dealing with matters pertaining to religious freedom, especially as they relate to Muslim marriages.

South Africa is known historically for racial apartheid when people were classified as white, Indian, Colored, or Black/Native.1 Indians, Coloreds, and Blacks were discriminated against and denied rights afforded to whites. One example was the right to vote, which was withheld from anyone not classified as white.2 What is less well known is that other forms of discrimination also existed, including religion, culture, gender, and sexual orientation. These discriminations manifested in religious marriage laws. They also intersected in the domain of marriage through race and religion, resulting in what Rabiat Akande describes as “mutually imbricated religious and racial othering.”3 Akande's observation that “Euro-Christian foundations of the legal regime of religious liberty” excluded minority religions from legal protections in colonial settler situations resonates in South Africa.4 Apartheid South Africa adopted a colonial European Christianized approach to marriage, namely, the voluntary union of one man to one woman for the duration of the marriage.5 This definition of marriage was embedded within South Africa's common law and entrenched values of heteronormativity and monogamy, both of which are inherent in a Christian understanding of marriage. Consequently, same-sex marriages were excluded from legal protection.6 Similarly, customary marriages and Muslim, Hindu, and Jewish marriages were not legally recognized because they were potentially polygynous, which in South Africa was deemed immoral and contrary to the colonial and apartheid era notions of public policy.7 This essay focuses on the legal implications of Hindu marriages not being legally recognized in South Africa, and especially the disparate effect that this has on women. The essay thus adds a gendered dimension to Akande's arguments about religious discrimination.

Rabiat Akande's article, “An Imperial History of Race-Religion in International Law,” persuasively demonstrates the interplay of racial and religious discrimination both historically and today, and argues that this race-religious nexus is not now adequately addressed by international law.1 Featured in the article is a historical account of the early colonial-era practices and patterns of thought that regarded people indigenous to the Americas and Africa as inferior in significant part due to their non-Christian religious practices and identities. The article's assessment of contemporary international law as it relates to the “race-religious othering” provides important insights into the shortcomings of formal international legal sources and their application. That assessment, however, sidelines or even downplays relevant developments that can provide hope for the victims of that othering, developments that include the adoption of the UN Declaration on the Rights of Indigenous Peoples (“the Declaration” or “the UN Indigenous Rights Declaration”).2 Akande's article summarily dismisses the significance of the Declaration with cursory questioning of its impact and legal character. This essay responds to Akande's treatment of the Declaration and overall sidelining of relevant developments internationally concerning Indigenous peoples.

Next Generation EU, specifically its Recovery and Resilience Facility (RRF), has been a groundbreaking new experiment for the EU. From the speed of the reaction at the EU level with an agreement between leaders a few weeks after the COVID-19 crisis erupted, the size of the instrument (being the largest EU fund ever created), to the RRF's design features (including the performance nature of the instrument, its leverage on reforms, and its method of financing), it is a fundamentally novel EU instrument. Aimed at both recovery and resilience, it first led to a firm common response to a simultaneous economic downturn across the EU, ensuring rapid macroeconomic stabilization and preservation of public investment levels, in contrast with previous crises. It has also planted the seeds of a significant increase in the resilience of the EU economy by fostering the implementation of major structural reforms in line with the common priorities of the EU. Lessons about absorption capacity, incentives, flexibility, and governance will all advance future program design in the EU and beyond.

In April 2020, President of the European Commission Ursula von der Leyen called for a “Marshall Plan for Europe.”1 Almost a year after her appeal, the European Union implemented the recovery and resilience program Next Generation EU (NGEU). NGEU, we show, shares several features with the Marshall Plan, including size, redistributive allocation, conditional grantmaking, and the pursuit of a distinct political agenda. But the new Marshall Plan also differs from the old. NGEU is financed through common EU debt rather than an infusion of funds from the United States. Marshall aid was disbursed almost entirely as grants, while NGEU funds consist of a mix of grants and loans. Further, NGEU is unprecedented in distributing grants in exchange for post-austerity and climate-friendly reforms and investments, rather than budget cuts. This alternative model, we argue, can serve as a template for international financial institutions such as the International Monetary Fund (IMF) and the World Bank.

This contribution will analyze the significance and legacy of Next Generation EU (NGEU). It will start by providing a snapshot of the state of the EU's Economic and Monetary Union (EMU) before the pandemic struck in 2020. It will then map out NGEU's likely legacy, arguing that NGEU may change the way the EU raises and spends revenues in the future. The essay will finish by reflecting on how NGEU may change our interpretation of important elements of EMU and affect the ongoing debate about the future of fiscal integration within the EU.

Since 2009, the European Union has undergone a succession of crises. It is even said to be in a sort of permacrisis: the financial crisis; the debt and euro crisis; the migration crisis; the rule of law crisis afflicting some of its member states; the process of withdrawal of the UK from the Union; the pandemic crisis; and the war in Ukraine.

This essay argues that the Court of Justice of the European Union's (CJEU) insertion of a federal homogeneity clause into the EU's primary law is an (ahistorical) and dysfunctional “legal transplant” that does not correspond to the state of European integration. It has its place in specific state constitutional systems, which needed or need an axiological backing of their foundational order, but cannot adequately organize the interaction between the EU and member states. In post-war Germany, value constitutionalism had an important stabilizing effect on society. It contributed to the symbolic reproduction of a society that needed new patterns of orientation after the horror of National Socialism. The insertion of such a clause into the basic order of the EU is taken out of context and brings with it dysfunctional and opportunistic results.

Public revenues, who decides on them, and their justification and legitimation are among the oldest constitutional issues of all. In the EU, member states ultimately control the scope of European policy and the independence of the European level via the EU's budget. This can be interpreted either as a bug or as a feature. The European Parliament reflects representation without taxation, as it has no taxation powers, and the EU does not have budgetary autonomy.

As the European Union (EU) was slowly re-emerging from the COVID-19 pandemic, it faced another unprecedented shock: Russia's large-scale military invasion of Ukraine. In responding to Russia's invasion, however, the EU was able to build on the legal and policy measures that it had developed to address the COVID-19 pandemic. In particular, NextGenerationEU (NGEU) and the use of common debt provided a template that the EU could use to mobilize financial resources to support Ukraine against Russia's aggression.

One significant dimension of the Next Generation EU program (NGEU) is its role in the broader context of the transition toward a low-carbon and environmentally sustainable economy and, specifically, in the global competition among major jurisdictions to become leaders in the key green industrial sectors.

The claim that states have an unfettered sovereign right to control their borders and exclude non-citizens from their territory is accepted everywhere without contestation. Yet it is anything but a self-evident truth. While taken for granted today, the assumption that control over migration is the “last bastion of sovereignty” represents a radical departure from the norm of freedom of movement (for some, not others, namely, white, “civilized,” Christian men) that defined international law's earlier approach. What avenues for reform, resistance, and recalibration open when we revisit the legal foundations and contemporary consequences of the dominant understanding according to which states have near-absolute authority to regulate migration as an incident of sovereignty? In the spirit of asking big questions and addressing topics of lasting relevance, this symposium seeks to problematize the view that each state has unfettered discretion to control its territory and decide who it admits “upon such conditions as it may see fit to prescribe.”1 With a surge of nationalist-populist anger and anti-immigrant sentiment rising across the globe and the corresponding shrinking of rights and protections afforded to those on the move, there is added urgency to challenge the view readily expressed in public debate that migration is an “existential threat to be managed with the full and legally unregulated power of the sovereign state.”2 This view has emboldened governments, operating alone or in concert, to invest unprecedented amounts of resources, political capital, and institutional capacity to “take back control” over borders and migration—as the Brexit slogan memorably put it. With voters across the globe naming immigration a top concern, governments are recalibrating their policies in an increasingly restrictive direction, shutting the gates of admission to would-be migrants and asylum seekers.3 The deep-seated assumption that states have inherent power over migration provides legal cover for such acts, despite the immense human toll, erosion of rights, and denial of the basic protection and dignity of those who are caught in the increasingly sweeping dragnet of ever-expanding borders and migration control regimes.4 Laws, regulations, and declarations about the urgency to “sort out the border management situation to ensure that the porous borders are addressed in a way that protects the sovereignty of our state” are nowadays proclaimed as a matter of course by public authorities in established democracies as well as autocracies, spanning the gamut from former imperial powers to post-colonial states.5 Exploring what has been forgotten or pushed underground with the triumph of the dominant understanding that states have an inherent sovereign right to control their borders—a view so prevalent that we rarely notice how it impairs our ability to imagine alternatives—is the kernel of this inquiry.

“We all think about immigration . . . as the state asks us to think about it and, ultimately, as it thinks about it itself.” This aphorism of the sociologist Abdelmalek Sayad seems to speak to lawyers and, in particular, international lawyers who are accustomed to thinking of immigration as a mere question of sovereignty. I contend that this internalization of sovereignty by the legal profession is a pure mystification. I call for acknowledging the duality of sovereignty as a Janus with two faces. This metaphor illuminates the ontological ambivalence of the border that can be viewed as either a passage or a wall depending on the viewpoint.

A discussion of the state's “right to exclude” requires that we have at our disposal unambiguous understandings of what constitutes the state, who constitute its subjects/citizens, and who constitute aliens.1 This, however, is not the case. In fact, the reverse is more true: particular notions of the state, of subjects/citizens, and of aliens are the outcome of (among other things) practices of migration regulation. This essay interrogates two understandings of the state that characterize much scholarship on migration, including legal scholarship. First, the assumption of the salience of state borders, of citizens/subjects, and of aliens understood in national terms; second, the assumption—often condensed in invocations of the Westphalian state—that the authority to control migration across these putative borders is a longstanding and non-contentious element of state sovereignty. In such approaches, the state is simply there. It matters little what prefix—national, colonial, imperial, modern, and so forth—we affix to it. Such views are premised on the notion that the practices of governance and the institutions of the state have a fidelity to, can be deduced from, and simply reflect a set of principles. In my view, rather than understand the state as merely translating a set of principles into practice, we are better served by focusing on practices to examine how they interpret and remake principles in particular historical conjunctures.

The development of human rights law is generally presented as a story of progress. This progress is an evolution from an “old” legal regime that did not recognize individual rights to a “new” law (starting with the 1948 Universal Declaration of Human Rights (UDHR)) that anointed all individuals as possessors of internationally recognized rights against their states. Further, the definition of these rights has supposedly expanded over time, adding elements of complementary protection and extraterritorial application.