The advance of reproductive technologies, like surrogacy arrangements, confronts courts with new demands and dilemmas. This contribution analyses the potential of EU law towards a better and more balanced reconciliation of work, private and family life when no national law applies. In two recent cases of the Court of Justice of the EU on leave for surrogacy mothers, the Advocates General Kokott and Wahl published diverging opinions on similar prejudicial questions of national courts. These opinions illustrate some difficulties in applying the EU concept of equality and interpreting the scope of relevant EU law on leaves. The Court followed a cautious approach, which is not surprising given the lack of consensus on surrogacy arrangements in the member states and their legal implications. Developments in society and technologies in relation to motherhood, fatherhood and parenthood give rise to new legal questions. However, the existing EU legal instruments in this field were not designed to address questions such as for example surrogacy leave for commissioning mothers and fathers. A modernisation of the EU instruments in the light of societal, technological and legal developments in the member states would provide an opportunity to remedy some gaps in the existing EU legal framework on reconciliation issues. In a society where participation in the labour market of both women and men is increasing and getting more balanced, the need to address care of children, older people and disabled people becomes more urgent.

This article compares the CEFL principles to Spanish civil law regarding the general rights and duties of spouses, matrimonial property agreements and matrimonial property rights, i.e., property relations between spouses, by detecting where the latter follows the common core or better law approach solution selected by the former.

The legal regulation of gender identity seems to be in a state of flux. This paper compares the German and Dutch legal systems with regard to the registration of a person’s sex, focusing on the possibility in both countries not to register a baby’s sex until it can be clearly determined. In both systems, it has thus become possible that a person has no specified gender for a considerable period of time. These persons may encounter various kinds of legal problems, since the two jurisdictions have not been adapted to accommodate them. In addition, two potential problems regarding private international law issues are discussed.

This contribution examines the extent to which a minor is involved in divorce-related judicial proceedings in the Netherlands and Germany. The discussion will concentrate exclusively on the rights of the minor to a special representative and to be heard in person. The purpose of this contribution is to identify the uncertainties and bottlenecks that arise in both legal systems.

In dit artikel argumenteer ik dat er twee mogelijke invullingen zijn voor het principe van constituerende macht. De eerste mogelijkheid is deze van de klassieke basisveronderstelling van de constitutionele democratie, namelijk dat de gemeenschap zelf vorm kan en moet geven aan de fundamentele regels die die gemeenschap beheersen. Hans Lindahl maakt een interessante analyse van deze traditionele invulling, die ik kritisch zal benaderen. Lindahl heeft immers zelf scherpe kritiek op de invulling die Antonio Negri aan het concept constituerende macht geeft. Mijn interpretatie gaat er echter van uit dat Negri een fundamenteel andere inhoud geeft aan het principe van constituerende macht, waarbij constituerende macht niet alleen wordt losgemaakt van het constitutionalisme, maar meer algemeen van elk rechtssysteem en zelfs van elke vorm van finaliteit. Deze argumentatie werpt een nieuw licht op het debat rond Negri’s theorie van constituerende macht, waarin diens meest fundamentele uitgangspunt vaak over het hoofd wordt gezien.

International criminal courts have made an important contribution to the development of international criminal law. Through case law, the courts have fine-tuned and modernized outdated concepts of international crimes and liability theories. In studying this practice, scholars have so far focused on the judicial interpretation of statutory and customary rules, thereby paying little attention to the rules’ application in individual cases. In this article, I reveal the limitations of this approach and illustrate how insights from casuistry can advance international criminal law discourse. In particular, I use the example of genocide to show that casuistic case law analyses can help scholars clarify the meaning of the law and appraise the application of substantive legal concepts in individual cases. Based on these observations, I argue that scholars should complement their current research with studies into the casuistry of international criminal law.

In this article I discuss one of the latest reports on the practice of drone warfare, the UN SRCT Drone Inquiry. I use the report to illustrate some of the specific forms of legal politics that surround drone warfare today. In the first place, I focus on the tension between the capacity of drones to target more precisely and the never-ending critique that drone warfare victimizes civilian populations. Secondly, I focus on the call for more objective legal rules that can be found in many debates on drone warfare.

An alleged ‘return to religion’ in contemporary western politics (and science) prompted the Trustees of the Hans Kelsen Institut to posthumously publish Kelsen’s critique of the concept of ‘secular religion’ advanced by his early student Eric Voegelin. This paper identifies, firstly, what concept of transcendence is targeted by Kelsen, and argues that his analysis leaves scope for other conceptions. It does so in two steps: it summarizes the arguments against ‘secular religion’ (section 2) and it gives an account of the differences between Voegelin’s and Schmitt’s conception of transcendence – both under attack from Kelsen (section 3). It then submits an alternative account of the relationship between politics and religion in Modernity, building on the concept of a ‘civil religion’ as found in Rousseau’s Social Contract. Giving a Rousseauist slant to Claude Lefort’s analysis of political theology (section 4) it concludes that a thin concept of transcendence is part and parcel of every, in particular a democratic, account of politics. It should be a stronghold against any resurgence of religion that feeds on hypostatized transcendence. In closing (section 5), it is argued that two key concepts in Kelsen’s legal philosophy may well be understood as paradigms of thin transcendence, namely ‘the people’ and ‘the Grundnorm’.

This article seeks to explore why, after significant financial investment and a history of nearly 50 years of civil society activity, there is a paucity of explicitly codified and consolidated indigenous theory that has emerged from peacebuilding practice in Northern Ireland. Methodologically, this apparent contradiction is explored, utilizing both empirical research (interviews with key peacebuilders) and the wide practitioner experience of the authors. It is argued that two complex dynamics have contributed to the subordination of local practice-based knowledge, namely, the professionalization of peace and the dominance of research over practice within academia. These two dynamics have played a mutually exacerbatory and significant role in creating barriers to constructing local peacebuilding theory. Phronesis, an Aristotelian term for practical knowledge, is explored to discover what insights it may contribute to both research, theory and practice in the field of peacebuilding, followed by examples of institutions demonstrating its value for practice–theory reflexivity. The article concludes with a call for peace research that validates and values practical knowledge. By doing so, the authors argue, new avenues for collaborative partnership between practitioners and academics can open up, which may play a constructive role in bridging practice–theory divides and, most importantly, contribute to building more effective and sustainable peacebuilding processes in Northern Ireland and in other conflict contexts.

In exploring alternatives to armed struggle, how do non-state armed groups embark on such complex internal discussions, and how do they reframe their worldview and strategy to persuade their militants to support such transition?
The article tackles this question by examining the internal processes of consensus-building that brought the most prominent militant organization in Northern Ireland – the Provisional Irish Republican Army (IRA) – from violent struggle for independence to non-violent political participation in the political system it had previously fought to expel.
The study relies on fieldwork and applied research through interviews, conducted in Northern Ireland and Ireland with key stakeholders, ranging from ex-prisoner leaders and former militants to politicians, official negotiators and civil society practitioners who work with various conflict parties on the ground. Historical literature and primary sources are also used, including Sinn Féin and IRA official documents. All primary sources are integrated with the theoretical literature on intra-group consensus-building and discursive reframing.
The analysis underscores the importance of discursive practices to ensure frame-shift in both the understanding of the conflict (consensus mobilization) and the means chosen to wage it (action mobilization). The case of the IRA further reveals the importance of preserving continuity with an organization’s core ideological pillars as a key mechanism to minimize chances of internal strife, along with enlisting credible supporters from the ‘militant constituency’ – such as former prisoners and/or militants with deep and personal involvement in the group’s armed struggle.

Non-violent struggle is a technique by which the population can restrict and sever the sources of power of their oppressors while mobilizing their own potentials into effective power. Female nakedness is one type of non-violent action that can be mobilized to facilitate women’s emancipation from gendered-cum-patriarchal oppression, violence and marginalization. A literature review indicates that female nakedness has been used for many centuries around the world to stop wars, ward off enemies, agitate for rights, prevent pests and increase harvests. Studies show that the effectiveness of non-violent struggle requires strategic planning and understanding of the dynamics involved. This article analyses the 1992 women’s nude protest in Kenya aimed at pushing for the release of political prisoners. This study investigates three questions: (1) In what ways was the 1992 women’s nude protest in Kenya a success? (2) What were the struggle’s flaws? (3) What strategic plans and/or dynamics of non-violent struggle could have been employed to make this protest more effective? The findings of this research indicate that: (1) The nude protest was partially a success because it secured the release of all political prisoners and nurtured democratization; (2) the struggle failed to embrace some strategic planning and/or the dynamics of non-violent struggle in addition to hunger strike and female nakedness; and (3) the protest could have been more successful if it embraced particular strategic plans and/or dynamics of non-violent struggle such as negotiation, power relations, prioritization of tactics and methods of non-violent struggle, access to critical material resources and clear monitoring and evaluation strategies.

This article reviews some of the key issues in transitional justice process and institutional design, based on my research and experience working and living in several post-conflict societies, and suggests that cultural and political variations in transitional justice design, practices, and processes are necessary to accomplish plural goals. The idea of process pluralism, derived from the more general fields of conflict resolution and ‘alternative dispute resolution’ in legal contexts, is an essential part of transitional justice, where multiple processes may occur simultaneously or in sequence over time (e.g. truth and reconciliation processes, with or without amnesty, prosecutions, lustration and/or more local legal and communitarian processes), depending on both individual and collective preferences and resources. Transitional justice is itself ‘in transition’ as iterative learning has developed from assessment of different processes in different contexts (post-military dictatorships, civil wars, and international and sub-national conflicts). This article draws on examples from Argentina’s and Chile’s emergence from post-military dictatorships to describe and analyze a plurality of processes, including more formal governmental processes, but also those formed by civil society groups at sub-national levels. This article suggests that ‘democracy development’ and legalistic ‘rule of law’ goals and institutional design may not necessarily be the only desiderata in transitional justice, where more than the ‘legal’ and ‘governmental’ is at stake for more peaceful human flourishing. To use an important concept from dispute resolution, the “forum must fit the fuss”, and there are many different kinds of ‘fusses’ to be dealt with in transitional justice, at different levels of society – more than legal and governmental but also social, cultural and reparative.

Online Dispute Resolution ODR) is the new frontier in dispute resolution process. There has been an overwhelming positive expectation on the way ODR will work globally and Africa is likely to join the evolving dispute resolution concept.
In recent years, technology has taken over virtually all aspects of our lives. This is from online shopping, online banking, online education, to online games, the list goes on and on.
Online dispute resolution has been used in e-mediation and turned out a great success for e-commerce. The emergence of ODR and its successes are notable in eBay, which boasts of resolving over 35 million disputes using its ODR services. Africa as a continent is a goldmine of technological exploration. The success of M-Pesa in East Africa, which uses technology in mobile money transfer is a testament to the advantages and great advancements the continent has made in its use of the vast population of youngsters. With a recommendation, for African legal practitioners to join the global movement.