States apply different material conditions to attract or restrict residence of certain types of migrants. But states can also make use of time as an instrument to design more welcoming or more restrictive policies. States can apply faster application procedures for desired migrants. Furthermore, time can be used in a more favourable way to attract desired migrants in regard to duration of residence, access to a form of permanent residence and protection against loss of residence. This contribution makes an analysis of how time is used as an instrument in shaping migration policy by the European Union (EU) legislator in the context of making migration more or less attractive. This analysis shows that two groups are treated more favourably in regard to the use of time in several aspects: EU citizens and economic- and knowledge-related third-country nationals. However, when it comes to the acquisition of permanent residence after a certain period of time, the welcoming policy towards economic- and knowledge-related migrants is no longer obvious.

In this article, we focus on how the education system can be used to promote equality in the context of changing people’s hearts and minds – values, morals and mindsets. The duties contained in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (‘Equality Act’) bind private and public schools, educators, learners, governing bodies and the state. The Equality Act calls on the state and all persons to promote substantive equality, but the relevant sections in the Equality Act have not been given effect yet, and are therefore currently not enforceable. We set out how the duty to promote equality should be concretised in the Equality Act to inter alia use the education system to promote equality in schools; in other words, how should an enforceable duty to promote equality in schools be fashioned in terms of the Equality Act. Should the relevant sections relating to the promotion of equality come into effect in their current form, enforcement of the promotion of equality will take the form of obliging schools to draft action plans and submit these to the South African Human Rights Commission. We deem this approach inadequate and therefore propose certain amendments to the Equality Act to allow for a more sensible monitoring of schools’ duty to promote equality. We explain how the duty to promote equality should then play out practically in the classroom to facilitate a change in learners’ hearts and minds.

The Argentine and the French civil codes have recently undergone substantial modifications to their contract law provisions. These novel statutes could serve as models for future B2B contract law reforms in Latin American jurisdictions and beyond, as former Argentine and French laws have done in the past. The authors offer a contribution that paves the way in that direction with a systematic comparative analysis. As a starting point, this article unveils the influence that the modern unified laws on contracts (UNIDROIT Principles on International Commercial Contracts (PICC) and United Nations Convention on Contracts for the International Sale of Goods of 1980 (CISG)) have in Argentina’s and France’s new contract law. It also highlights the most obvious similarities and differences in both sets of rules. This contribution goes beyond simple tertium comparisons; the authors analyse which of the two laws offers better, or more effective, rules to achieve the desired contract law functions in various matters. Readers are provided with the best rule or solution to address the problem in question and, as the authors hope, they should conclude that both models provide for a range of complementary solutions for modern contract law reforms.

This article points out that the UK Human Rights Act, 1998 does not have a clear provision guaranteeing a person’s right to a nationality. Instead, this right is buried in the European Court of Human Rights decisions of Smirnova v Russia, 2003 and Alpeyeva and Dzhalagoniya v. Russia, 2018. In these cases, the Court stretched the scope of Article 8 of the European Convention on Human Rights, 1953 on non-interference with private life by public authorities to extend to nationality. The humanitarian crisis arising from the Windrush Scandal was caused by the UK Government’s decision to destroy the Windrush Generation’s landing cards in the full knowledge that for many these slips of paper were the only evidence of their legitimate arrival in Britain between 1948 and 1971.
The kindling for this debacle was the ‘hostile environment policy’, later the ‘compliant environment policy’ that operated to formally strip British citizens of their right to a nationality in flagrant violation of international and domestic law. This article argues that the Human Rights Act, 1998 must be amended to include a very clear provision that guarantees in the UK a person’s right to a nationality as a portal to a person’s inalienable right to life. This balances the wide discretion of the Secretary of State under Section 4 of the Nationality, Immigration and Asylum Act, 2002 to deprive a person of their right to a nationality if they are deemed to have done something seriously prejudicial to the interests of the UK.
This article also strongly recommends that the Preamble to the UK Human Rights Act, 1998 as a de facto bill of rights, be amended to put into statutory language Independent Advisor Wendy Williams’ ‘unqualified apology’ recommendation in the Windrush Lessons Learned Report for the deaths, serious bodily and mental harm inflicted on the Windrush Generation. This type of statutory contrition is in line with those of countries that have carried out similar grievous institutional abuses and their pledge to prevent similar atrocities in the future. This article’s contribution to the scholarship on the Human Rights Act, 1998 is that the Windrush Generation Scandal, like African slavery and British colonization, has long-term intergenerational effects. As such, it is fundamentally important that there is a sharp, comprehensive and enforceable legal mechanism for safeguarding the rights and interests of citizens as well as settled migrants of ethnically non-British ancestry who are clearly vulnerable to bureaucratic impulses.

As the international financial framework develops it has brought with it dynamic national legislative reforms. The article establishes how the domestication of the Financial Action Task Force (FATF) Recommendations directly affects national legislative processes as the FATF mandate does not have due regard to national legislative drafting processes when setting up obligations for domestication. The article tests the FATF Recommendations against conventional legislative drafting processes and identifies that, the proposed structures created by the FAFT do not conform to traditional legislative drafting processes. Due regard to functionality and efficacy is foregone for compliance. It presents the experience of three countries which have domesticated the FATF Recommendations and proves that the speed at which compliance is required leads to entropic legislative drafting practices which affects harmonisation of national legislation.

Regions and local governments play a very important role in the application of European law and in the implementation of European policies. The economic crisis of 2008 has accentuated territorial and social differentiation and highlighted the negative effects of globalization. This circumstance has created resentment among peripheral and marginal communities in the electoral results, but also a strong request for involvement, participation and sometimes independence from territories. These developments raise new questions about the relationship between the EU and the Regions and, more widely, about the role of subnational entities in the EU integration process, as they are the institutions nearest to citizens.
The aim of this article is to contribute to that debate by exploring the following research question: ‘is subnational differentiation positive or negative for European integration?’ Towards a possible answer, two perspectives are examined from a constitutional law approach. From the top down, it examines the attitude of the EU towards regional differentiation, from the origins of the EU integration process and its development until recent initiatives and proposals. From the bottom up, it analyses the role of subnational entities by presenting the Italian experience, through the reforms that have been approved over the years until the recent proposal for asymmetric regionalism. The aim is to understand whether regional differentiation still represents a positive element for the European integration process, considering the role that subnational entities play in many policies and the challenges described earlier.

This article addresses the question of whether the European Central Bank’s (ECB’s) involvement in banking supervision is compatible with its independent status as provided by the European Union’s (EU’s) primary law, specifically with reference to the principle of separation between the ECB’s monetary policy and supervisory powers. It is found that the Single Supervisory Mechanism (SSM) Regulation provides the ECB with a set of prerequisites in pursuit of its supervisory objectives under a high level of independence. However, the article argues that the current EU regulatory framework poses risks to the overall independence of the ECB. In particular, the principle of separation, as one of the mechanisms aimed at safeguarding the ECB’s independence, is not fully achieved. In addition, the boundaries and application of macro-prudential operation of the ECB in both the SSM and European Systemic Risk Board (ESRB) remain blurry and uncertain. The article concludes by suggesting that the only way to safeguard the independence of the ECB is by carefully revising the ECB’s competencies, which may require treaty amendment.

In this article, we investigate the moderating role of political sophistication on the vote for populist parties in Belgium. Building on the literature about the diverse determinants of populist party support, we investigate whether issue considerations and populism-related motivations play a bigger role in the electoral calculus of politically sophisticated voters.
Using data from the 2019 general elections in Belgium, we focus on the cases of Vlaams Belang (VB) and Parti du Travail de Belgique- Partij van de Arbeid (PTB-PVDA). We find evidence suggesting that political sophistication enhances the impact of populism-related motivations on populist party support, although the effects are contingent on the party. Moreover, we show that, for issue considerations, the moderation effect only comes into play for VB voters: the impact of anti-immigrant considerations is greater at increasing levels of political sophistication.

The International Law Commission, on completion of its work on the draft articles on prevention and punishment of crimes against humanity, recommended to the General Assembly the elaboration of a convention by the said Assembly or by an international conference of plenipotentiaries based on the said draft articles. The Sixth Committee of the United Nations General Assembly at the first opportunity only took note of the draft articles and postponed consideration of the recommendation to its next session. The resolution of the General Assembly, as recommended by the Sixth Committee, does not readily disclose the full extent of the debate, proposals and concerns expressed in the Sixth Committee that prevented the General Assembly from acting on the Commission’s recommendation. This article, in considering the cornucopia of views expressed by States, outlines a path to unlock the Sixth Committee’s potential to act, by proposing a separation of the organizational and substantive matters and future-proofing the further consideration of elaborating a convention through the adoption of a structured approach.

Most post-Soviet States have introduced penal responsibility for crimes against humanity, either explicitly or under alternative headings. As a rule, their respective criminal laws are modelled after relevant provisions of the Draft Code of Crimes against the Peace and Security of Mankind or the Rome Statute of the International Criminal Court. The International Law Commission’s adoption of the Draft Articles on Prevention and Punishment of Crimes Against Humanity represents an appropriate occasion for post-Soviet States that have not yet penalized crimes against humanity to bring their criminal laws into fuller conformity with customary international criminal law.

The international community has been engaged with the topic of crimes against humanity since the International Law Commission (ILC) began work on it in 2013, with a view to draft articles for a future convention. Between 2013 and 2019, 86 States as well as several entities and subregional groups made comments on the ILC’s work at the United Nations Sixth Committee or through written comments to the ILC. This article is the culmination of the Whitney R. Harris World Law Institute’s work cataloguing and analysing States’ comments by assigning each statement to one of five categories – strong positive, positive, neutral, negative, and strong negative – examining both specific words and the general tenor of the comments. This article analyses the development of States’ reactions to the ILC’s work over time, as well as specific issues that frequently arose, observing that there is a pattern of growing support from States to use the ILC’s Draft Articles on Prevention and Punishment of Crimes Against Humanity as the basis for a new convention.

Few legal theorists today would argue that the domain of law exists in isolation from other normative spheres governing society, notably from the domain of ‘politics’. Nevertheless, the implicit norm that judges should not act ‘politically’ remains influential and widespread in the debates surrounding controversial court cases. This article aims to square these two observations. Taking the Miller v. Secretary of State and Urgenda cases as illustrative case studies, the article demonstrates that what it means for judges to adjudicate cases ‘apolitically’ is itself a matter of controversy. In reflecting on their own constitutional role, courts are forced to take a stance on substantive questions of political philosophy. Nevertheless, that does not mean that the ‘norm of judicial apoliticality’ should therefore be rejected. The norm’s coherence lies in its intersocial function: its role in declaring certain modes of judicial interpretation and intervention legitimate (‘legal’/‘judicial’) or illegitimate (‘political’).

This article examines the tension between the constitutional obligation of judges to uphold rules of positive law and possibly conflicting standards of conduct arising from professional-ethical values. The theoretical analysis will be illustrated by the case of Hungary, an EU member state experiencing rule of law challenges since 2010 and where the 2018-2019 criminalization of homelessness exemplifies the studied tension. Inspired by the theories of Philip Selznick and Martin Krygier, rule of law will be viewed as a value that requires progressive realization and context-specific implementation. By contextualizing the relevant Hungarian constitutional framework with the content of the judicial code of ethics and judicial practice, it will be shown how the legitimate space for Hungarian judges to distance themselves from legislation possibly in conflict with rule of law values is reduced. Theoretical suggestions for addressing such rule of law regressions will be made.

The aim of the present study is to examine recent developments concerning the European Public Prosecutor’s Office (EPPO), focusing on the conflict between the EU and the Member States not participating in the enhanced cooperation setting up the Prosecutor’s Office. To provide an overall picture about EPPO’s future operational relations, the study first presents the EPPO’s future cooperation with other EU bodies and draws some critical conclusions. Based on these reflections, the study aims to discuss the EU’s alleged intention and strategy to cope with and solve the problem of non-participating Member States, assessing the probable role of the Prosecutor’s Office and other related EU bodies, institutions and legal measures in this struggle, while also considering recent declarations of the leaders of EU institutions.

The CJEU published its much-awaited preliminary ruling in Case C-263/18 - Nederlands Uitgeversverbond and Groep Algemene Uitgevers (the Tom Kabinet case) in December 2019. Our paper aims to introduce the Tom Kabinet ruling and discuss its direct and indirect consequences in copyright law. The Tom Kabinet ruling has seriously limited (in fact, outruled) the resale of lawfully acquired e-books. It left various questions unanswered, and thus missed the opportunity to provide for clarity and consistency in digital copyright law. Our analysis addresses how the CJEU deferred from its own logic developed in the UsedSoft decision on the resale of lawfully acquired computer programs, and how the CJEU’s conservative approach ultimately missed the opportunity to reach a compromise ruling. The paper further introduces the US approach that has a strong distinction between selling and making with respect to the research of exhaustion. We aim to trace how this distinction rests on the statutory basis for exhaustion (in copyright) and common law basis (in patent and trademark law) and compare these findings with the CJEU’s recent interpretation of exhaustion. Our focus will be on the Supreme Court’s decisions in Kirstaeng and Bowman and lower court decisions that examine technological solutions to facilitate resale. We examine how the US approach adopts a rigid approach that might inhibit technological development in digital markets, an approach with parallels in the Tom Kabinet ruling. In conclusion, we assess whether there is convergence between the two sides of the Atlantic or whether there is a path of innovative legal development that reconciles the various precedents.

The success of the European integration depends, to a large extent, on restoring the equilibrium amongst its various dimensions: the economic, the political and the cultural. This rebalancing should primarily focus on upgrading the hitherto relatively neglected cultural dimension of the European construct, as a basis of European identity. Since law is not only an instrument, but a core element of European identity, rule of law, should be respected on the international, European and national level. The traditional strict, ‘Kelsenian’ hierarchy of legal norms has been substantially loosened, primarily, but not exclusively due to the emergence of European law. The geometric order of legal norms has become heterarchic and the neat ranking of the different levels as well as the absolute primacy based upon that ranking has been questioned. This applies equally to the relationship between international law and European law and between European law and the national laws of the Member States. Both the principle of the autonomy of European, law and the constitutional identity of the Member States aim at protecting the core principles of European law, and the laws of the Member States, respectively. The rule of law does not necessarily presuppose a neat geometric hierarchy of legal norms. It does require, however, an orderly structure, where the precise areas of the autonomy of EU law, as well of the constitutional identity of Member States are defined in a clear and foreseeable manner. While a perfect order can never be established, legal certainty and ultimately, rule of law could be substantially reinforced through mutual empathy and understanding as well as continuous and effective dialogue, consultation and concentration between the various levels of legislation and, in particular, of adjudication.

Studies on the relationship between EU citizenship and Member State legal orders speak either of the loss of control over national sovereignty or, on the contrary, the judicial deconstruction of Union citizenship. These firm positions on how EU citizenship should be perceived fit well with the two markedly different mindsets represented in legal literature: while representatives of the federalist view envision a politically integrated, supranational community behind the treaty provisions on EU citizenship, sovereignists oppose the extension of EU powers via judicial interpretation tooth and nail. This study aims to find an answer to the question whether the CJEU, in its latest judgments on EU citizenship issues, has succeeded in consolidating the constitutional basis of EU citizenship in a way that is reassuring for Member States, i.e. by respecting the principle of conferral. In this respect, it may be established that in both cases analyzed below, such as the Delvigne and Tjebbes cases, the CJEU made well-balanced decisions keeping EU as well as Member State interests in mind, which, although has brought no substantial progress in the process of recognizing EU citizenship as an autonomous status, makes efforts to consolidate the fundamental characteristic thereof.