“International Law is what international lawyers make of it”. Thus ends the new epilogue to the second edition of Martti Koskenniemi's From Apology to Utopia (hereinafter FATU), a seminal work on international law, originally published in 1989 and now republished in 2005. Shortly thereafter, he also notes the inherent situatedness of all international legal practice, citing Outi Korhonen, which has a decisive influence on how international lawyers practice their trade, whether they are formalists, antiformalists, positivists, pragmatists or naturalists. Finally, Koskenniemi notes that the main political point of FATU is an empirical one, that the system of international law has a structural bias, wherein it favors some outcomes or distributive choices over others, especially showing a bias against the South or the Third World.

In 1984, President Reagan signed a bill that created the Martin Luther King, Jr. Federal Holiday Commission. The Commission was charged with the responsibility of issuing guidelines for states and localities to follow in preparing their observances of Martin Luther King's birthday. The Commission's task would not be easy. Although King's birthday had come to symbolize the massive social movement that grew out of efforts of African-Americans to end the long history of racial oppression in America, the first official observance of the holiday would take place in the face of at least two disturbing obstacles: first, a constant, if not increasing, socioeconomic disparity between the races, and second, a hostile administration devoted to changing the path of civil rights reforms that some believe responsible for most of the movement's progress.

By its first request for a preliminary ruling, the German Constitutional Court aired its doubts about the lawfulness of the Outright Monetary Transactions (OMTs) program. In this article it is argued that the ECB's pledge in the summer of 2012 to do “whatever it takes” to safeguard the monetary policy transmission mechanism in all countries of the euro area by buying government bonds was generally compatible with EU law. However, it is argued that there is some potential for the ECB to infringe the Treaty on the Functioning of the European Union (TFEU) while acting according to this announcement. The peculiarity of the situation, the author argues, is that we might be dealing with a “self-fulfilling prophecy” in that the ECB announces a particular policy, which might not be compatible with EU law, but the act announced, will never take place because the political problem would have been resolved by the measure previously announced. The critical question in this scenario refers to how a court should react to such a situation. The author argues that a court in such a situation has to show the legal limits of the particular institution, but neither the ECJ nor the German Constitutional Court may replace the central banks' task to maintain financial stability. Finally, a comment is given on how the German Constitutional Court will react to the ECJ's decision in that case.

While "no means no" considers sex as consensual until someone says no, "yes means yes" defines sex only then as consensual when all parties have explicitly agreed. Consent is thus positively determined by the presence of a yes and no longer negatively determined by the absence of a no. "Yes means yes" thus not only sets the limit as to when sex becomes sexual violence, it also tells us how morally "correct" sex should look like. In the first part I will give an insight into debates about affirmative consent in the US and Germany. In the following, I will work out how affirmative consent misjudges the subjectifying functioning of sexual power relations. I will show that the understanding of affirmative consent is based on a gendered giver-receiver grammar of consent, which stabilizes heteronormative notions of female sexuality as passive and male sexuality as active. Based on the results of conversational analytical studies on sexual communication, I will argue that the politics of affirmative consent underestimates the internalization of heteronormative discourses in sexual subjects.

Should we use the language of international criminal law (ICL) to discuss, analyze, and address Western policies of migration control? Such policies have included or resulted in indefinite and inhumane detention, deportations, including through practices of push- and pull-backs and numerous deaths of migrants attempting to cross land or sea borders. And yet, recourse to ICL's conceptual and rhetorical apparatus, often reserved for “unimaginable atrocities,” may seem ill-fitting and an emotive stretch of doctrine. Drawing from international strategic litigation practice on Australian and European policies, this article examines whether the legal concept of crimes against humanity can apply to the deaths, detention, and deportation of migrants, as part and consequence of Western policies of migration control. As migration control policies involve increasingly sophisticated practices of outsourcing and responsibility avoidance, I further ask whether the tools ICL has developed to describe system criminality can trace individual liability against the distance created by such policies. I also inquire into the potential that the transnational nature of migration and the spreading of anti-migration policies have in activating the jurisdiction of courts and the prioritization of the role of the International Criminal Court. Finally, I consider the danger of fetishizing an international punitive approach, before offering some thoughts that aim to bridge a critical approach to international criminal law with its use in meaningful strategic litigation. Throughout the Article, I argue that applying the categories of ICL to Western policies of migration control can contribute to revealing both the potential and the limits of the regime and its institutions, as well as the structures of asymmetry and injustice present both in anti-migration policies and in international criminal law itself.

The continuing proliferation of transnational private regulatory governance challenges conceptions of legal authority, legitimacy and public regulation of economic activity. The pace at which these developments occur is set by a coalescence of multiple regime changes, predominantly in commercial law areas, but also in the field of internet governance, corporate law and labor law, where the rise to prominence of private actors has become a defining feature of the emerging transnational regulatory landscape. One of the most belabored fields, the transnational law merchant or, lex mercatoria, has gained the status of a poster child, as it represents a laboratory for the exploration of “private” contractual governance in a context, in which the assertion of public or private authority has itself become contentious. The ambiguity surrounding many forms of today's contractual governance in the transnational arena echoes that of the far-reaching transformation of public regulatory governance, which has been characteristic of Western welfare states over the last few decades. What is particularly remarkable, however, is the way in which the depictions of “private instruments” and “public interests” in the post-welfare state regulatory environment have given rise to a rise in importance of social norms, self-regulation and a general anti-state affect in the assessment of judicial enforcement or administration of contractual arrangements. A central challenge resulting from case studies such as the transnational law merchant is from which perspective we ought to adequately study and assess the justifications, which are being offered for a contractual governance model, which prioritizes and seeks to insulate “private” arrangements from their embeddedness in regulated market contexts, on both the national and transnational level.

The entry into force of the Lisbon Treaty has changed the framework and possibilities of the development of European Union (EU) criminal law. Gone is the long-lived and awkward cross-pillar character of EU criminal law, as mainly a third pillar EU ‘intergovernmental’ issue but also partly a first (EC) pillar question. The Lisbon Treaty marks a new era for the criminal law as it brings it within the core of the EU law project. Nevertheless, Article 10 of the transitional protocol as attached to the Lisbon Treaty stipulates a five-year transition period before former third pillar instruments will be treated in the same way as EU acts. This paper will focus on two issues in particular. The first question that will be addressed concerns what EU law principles drive or decide the EU's involvement in criminal law. After having identified these principles the second question is whether they should drive it and if so what implications will it have for the criminal law in the future.

In his famous talk “The Force of Law,” given at Cardozo Law School in 1989, Derrida linked his work with the Critical Legal Studies movement. This lecture signposted a change of direction in deconstruction. Early deconstruction had been criticized for formalism, aestheticism and scant recognition of political realities. Derrida's (in)famous statement that “there is nothing outside of the text,” was a rare philosophical sound-bite meaning that language, communication and social interaction cannot avoid, as commonly assumed, the uncertainties and ambiguities of the written text. But the aphorism was often misinterpreted to signify extreme idealism, disregard for the real world and literary and philosophical reductionism. But the “Force of Law” signified a clear turn towards political and ethical engagement, symbolized by the discussion of law and justice. After that talk, deconstruction became obsessed with questions of ethical responsibility, the meaning of friendship and the complex relationship with the other. Before his death, Derrida wrote a number of essays on contemporary political events. He denounced the Kosovo and Iraq wars and devoted a book to ‘rogue’ elements and states, in which he attacked the United States as the greatest rogue. Just before his untimely death in 2004, Derrida had become preoccupied with the concept of sovereignty at the basis of the tragedies and abuses of modernity. It is this political and ethical turn of deconstruction that I would like to address in the context of critical legal theory.

This contribution will contain an analysis of important European dynamics, particularly at this moment when it seems to be necessary to restart the process of a unified European identity, which was, in a way, compromised after the failure of the EU Constitution and the difficulty of giving effectiveness to democracy:

There is hardly a set of legal institutions that has more contributed to the creation of the common market than the fundamental freedoms enshrined in the Treaty of Rome. The expanding concepts of freedom of establishment and of free movement of goods, persons, services and capital have, during the thirty years since the European Court of Justice\'s (ECJ) decision in \”Dassonville\”, by far become the Community\'s most effective deregulatory instruments. The driving force behind this development has been the case law of the Court. This case law has, on an initially slim basis in the Treaty, established the fundamental freedoms as the central element of a \“new legal order\” which has direct effect, results in the automatic inapplicability of incompatible national law and which can be invoked by every citizen in national administrative or judicial proceedings. Furthermore, it is enforced not only by Community institutions but also by EU-citizens acting as \“private public attorneys\” when bringing claims under European law against Member States for damages resulting from violations of the Treaty.

A new movement has come to legal science. It strikes self-awareness into the minds of all jurists who falsely believe their deeds fully consistent with their ideals. It pierces and destroys these delusions and undertakes now, in light of new, less modest ideals, to justify our constant activity to ourselves: the creation of law. Yet, no matter how audibly our movement is simultaneously heralded in various fields, it still lacks unity and awareness of its power. Therefore, we venture an attempt here to summon all its best forces into unity: an attempt that deliberately ignores everything that separates discrete writers from one another, a unity that does not expect itself to be the system of any one person, nor the program of all of them, and therefore acts on its own responsibility.

From Apology to Utopia is a disturbing reading experience. I first came across Martti Koskenniemi's book of 1989 during research for my thesis on Hans Kelsen. In his monograph “Das Problem der Souveränität”, published immediately after the First World War, Kelsen attempted to destroy the central doctrinal pillars of the nineteenth century German international law discourse by exposing the ideological nature of its central doctrines, such as the concept of the sovereign will of the state, autolimitation and consent. 70 years later, the analytical programme of From Apology to Utopia deconstructed international law by exposing the inherent “political” nature of international legal discourse, interpreted as an argumentative practice. Exposing the unstable discursive boundaries between politics and international law is the central objective of this monograph. Martti Koskenniemi portrays international legal doctrine as an inherently contradictory and repetitive argumentative routine that is incapable of producing meaningful “legal” results. International lawyers somewhat tragically feel compelled to engage in this Sisyphean routine in order to maintain their professional identity.

Driven by the need to address the immediate public health threats of the COVID-19 pandemic, this has seen a rise of the technocratic mode of governance around the world. A technocratic approach is evidence-based and relies upon the guidance of experts to respond to the public health crisis. The rise of technocracy reflects a utilitarian calculus that seeks to preserve the greater good. Taiwan’s pandemic response exemplifies the strengths and weaknesses of this type of governance. Based on an analysis of the relevant case law of the Taiwan Constitutional Court, legislation, and political developments this Article takes a legal-historical look and traces the current technocratic approach—defined for this Article as an experts-driven and procedural-driven process—which is a hallmark of Taiwan’s pandemic response. Examining Taiwan’s pandemic response through a human rights lens sheds light on a more complex relationship between the collective right to health and life, and the individual rights to health, work, privacy, and liberty during the pandemic.

This study examines how the climate litigation approach builds pathways to face climate emergency. In light of recent jurisdictional developments, this article underlines the links between legislation, litigation, and public policies to trace ways, progress and obstacles to face it. Those emergent dynamics contribute to build a lasting and sustainable climate change legal regime. Intertwining the different climate disputes in the world and the progress made through the elaboration of different climate laws allow to have a panoramic visibility on this new mode of climate governance which appears in filigree today all over the world and especially in France.

The Africa Caribbean Pacific–European Union (ACP-EU) Development and Trade Cooperation Relationship is currently regulated by the Cotonou Partnership Agreement. This agreement, which has been described as “the only one of its kind in the world” is based on the three pillars of politics, trade, and development between the EU and its Member States on the one hand and a group of developing countries on the other.

On 19 January 2010 the European Court of Justice (ECJ) was asked to rule on the application and scope of the general principle of non-discrimination under Community law. In Kücükdeveci the Court had the opportunity to clarify a number of questions concerning the principle of non-discrimination and the application of Directive 2000/78 that had remained unanswered after the famous Mangold judgment and subsequent case law. The case was particularly apt to clarify the scope of Mangold, as it concerned a similar factual situation, albeit after the implementation period of Directive 2000/78 had expired. Consequently, many issues addressed in that judgment arose anew. The Court had to deal with the relationship between Directive 2000/78 and the general principle of non-discrimination on the grounds of age, the possibility of justifying differential treatment on the basis of national social and employment policies, the extent of the doctrine of indirect effect, and the direct horizontal effect of directives.

With considerable regularity, the established and functioning scientific apparatus is able to reshape itself, to confirm or change its course and the respective lenses of observation through the rationalization of themes, trends and through the identification of individuals and groups of scholars who are being associated with these developments. This exercise, leaving its traces in conferences, edited volumes and the formation of scientific associations, is largely centred around the formulation, assessment and defence of scholarly projects and tasks. The importance of such undertakings lies, however, in their ability to never let the forces of institutionalization, formalization and bureaucratization take the upper hand over the continuing diversity and curiosity that reigns beneath their surface. The awarding of academic honours and prizes themselves are part of the institutionalization of scholarly projects, but they come with the calming realization that, despite all the festivity, it is clear to everyone that there is no one who deserves the prize. There is in fact no prize recipient. What remains is the constantly nagging doubt whether curiosity and critical inquiry still govern our search, whether ears and eyes continue to be open.

In the early Nineties the Hague Conference on International Private Law on initiative of the United States started negotiations on a Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (the “Hague Convention“). In October 1999 the Special Commission on duty presented a preliminary text, which was drafted quite closely to the European Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (the “Brussels Convention“). The latter was concluded between the then 6 Member States of the EEC in Brussels in 1968 and amended several times on occasion of the entry of new Member States. In 2000, after the Treaty of Amsterdam altered the legal basis for judicial co-operation in civil matters in Europe, it was transformed into an EC Regulation (the “Brussels I Regulation”).

From 16–27 April 2007, the UN Forum on Forests (“UNFF”) gathered in New York for its 7th session (“UNFF7”). After two weeks of intense and difficult negotiations, in the early hours of 28 April, UNFF adopted three documents. The main document was the “Non-legally binding instrument on sustainable forest management of all types of forests” (the “Instrument”), which was adopted by the General Assembly by resolution on 17 December 2007.

Frontex has become one of the major players in European external border management. As its powers and resources have increased, so have the challenges surrounding its compliance with fundamental rights. A major concern continues to be how to ensure legal accountability for fundamental rights violations that occur in the context of its activities. While Member States can be held accountable before their own national courts and before international courts, neither of these options are available in relation to Frontex. But it can be brought before the Court of Justice of the European Union to account for the conformity of its conduct with EU law. This Article explores the potential of the EU action for damages to offer a remedy for fundamental rights violations committed by Frontex. It identifies where public liability law falls short of providing a remedy for fundamental rights violations committed by EU bodies, explores the possibilities to close that gap, and assesses the implications this has for Frontex’s liability. The Article argues that the action for damages may be the means to close the accountability gap in the specific case of Frontex, but also more generally in circumstances where EU administration is delivered in the form of informal or factual conduct. If it is to fulfill that role, the CJEU would have to lower the threshold for EU liability where fundamental rights are concerned.