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  • S Theil, 'Germany' in Liora Lazarus, Christos Kypraios, Danilo B. Garrido Alves (ed), A Preliminary Human Rights Assessment of Legislative and Regulatory Responses to the COVID-19 Pandemic across 27 Jurisdictions, Bonavero Report 7/2020 (Bonavero Institute of Human Rights 2020)
    This is the second extended version of a report published in May 2020 by the Bonavero Institute of Human Rights which included an analysis of Covid 19 limitation measures in 11 jurisdictions. This second updated report now includes reference to 27 jurisdictions from a wider range of legal cultures and regions covering developments up until September 2020. It also now includes an in-depth analysis of international law standards and practice.
  • S Theil, 'Unconstitutional prorogation of Parliament' [2020] Public Law 529
    Argues, contrary to the constitutional convention, that the monarch is empowered in certain situations to reject ministerial advice to prorogue Parliament. Reviews evidence for the convention on prorogation, including statutory powers and ministerial advice, and considers the constitutional implications. Examines criticisms of R. (on the application of Miller) v Prime Minister (SC), and potential remedies open to the monarch for executive abuses.
  • S Theil, 'Germany – a federal executive power grab?' (2020) UK Administrative Justice Blog
    The German Infectious Diseases Protection Act (Infektionsschutzgesetz – IDPA) is the primary federal statute regulating the fight against covid-19 in Germany. The Act has been recently amended to provide the federal government with a greater role in enforcement and expanded its authority to pass delegated legislation without the consent of the Bundesrat. The Bundesrat is representative body of the German states at the federal level whose consent is ordinarily required before any law can be enacted or amended that impacts on the state sphere of competence. This post provides an overview of the IDPA framework and highlight some initial preliminary rulings from German courts, most notably from the Constitutional Court, before turning to assessing the constitutionality of the newfound powers of the federal executive.
  • S Theil, 'Loremza Violini and Antonia Baraggia (eds.) The Fragmented Landscape of Fundamental Rights Protection in Europe – The Role of Judicial and Non-Judicial Actors (Edward Elgar, 2018)' (2020) Modern Law Review [Review]
    DOI: 10.1111/1468-2230.12500
    Lorenza Violini and Antonia Baraggia are the editors of a recent collection entitled The Fragmented landscape of fundamental rights protection in Europe – The role of judicial and non-judicial actors. The book has taken on a broad and ambitious topic in the notoriously complex and interdependent environment that is the European legal architecture, particularly in terms of relevant actors. The chapters are arranged along three broad themes: (a) the theoretical complexity of fundamental rights protection, (b) the role of courts and (c) the various roles of non-judicial actors. The book contains some outstanding contributions and generally offers thoughtful reflections on at times under researched subjects. A core challenge to overcome with such a broad topic is that it can be difficult to identify overarching themes and tease out deeper insights, thus offering readers something beyond the sum of the contributions. Unfortunately, the present collection has not been successful in this respect. The chapters stand primarily on their own terms and rarely offer insights beyond their at times narrow topics. Reflections on other chapters are rare, even where they seem to strongly suggest themselves and express engagement with the overarching topic of the book is largely absent, barring a few exceptions. The laudable mission of the book to ‘address the flaws and the challenging overlaps fostered by the fragmented and complex landscape of fundamental rights protection in Europe from a novel perspective’ (1) is thus not quite achieved.
  • S Theil, 'Germany - Federal Constitutional Court on the horizontal effect of equality rights between private parties' [2020] Public Law 181 [Case Note]
    On 27 August 2019 the German Federal Constitutional Court (FCC) rejected the application of a prominent German far-right politician alleging discrimination by a privately-owned wellness hotel. The hotel had initially confirmed the politician’s four day reservation, but then cancelled and directed the applicant to alternative accommodations in the area. Upon receiving a request for clarification the hotel banned him from entering the premises indefinitely, explaining that his vocal far-right political beliefs would inconvenience other patrons and damage the reputation of the establishment. The applicant challenged the decision before the FCC, claiming that the court’s finding that the hotel could exclude the applicant from future bookings amounted to a violation of his constitutional equality rights. The FCC found that the applicant’s desire to stay in a particular hotel was not significant to his societal participation and that the hotel was far from the only establishment in the resort town in question. Hence, it concluded there was no violation of constitutional equality rights in this case.
  • Thiago Alves Pinto, 'An Empirical Investigation of the Use of Limitations to Freedom of Religion or Belief at the European Court of Human Rights' (2020) 15 Religion & Human Rights 96
    DOI: https://doi.org/10.1163/18710328-BJA10005
    Most literature on freedom of religion or belief argues that there should be a high threshold for the imposition of limitations to the manifestation of the right. However, the practice of the European Court of Human Rights shows that the bar is much lower than academics suggest. This article explores this issue by analysing a plethora of cases and on the basis of interviews with lawyers connected to the Court. While the Court often considers the requirements of legality, legitimacy, and necessity, it does so briefly; focusing mostly on the analysis of proportionality and the margin of appreciation to the State in question. This approach makes the decisions exceedingly subjective and leads to little legal certainty in the area. Therefore, it is suggested that if the Court would analyse all criteria to impose limitations strictly, it could become more efficient while providing greater protection for persons to manifest their religion or belief.
  • C O'Regan, 'Contemporary challenges for human rights: a view from South Africa' in Simon Mount and Max Harris (eds), The Promise of Law: Essays marking the retirement of Dame Sian Elias as Chief Justice of New Zealand (LexisNexis 2020)
    ISBN: 9781988546070
  • S Atrey, 'From Me to We: Locating Dalit Women in #MeToo' in A Noel and D Oppenheimer (eds), Globalization of the #MeToo Movement (Fastcase 2020)
  • S Atrey, 'Intersectionality and Comparative Antidiscrimination Law: The Tale of Two Citadels' in (ed), Research Perspectives in Comparative Discrimination Law (Brill 2020)
  • S Atrey and P Dunne (eds), Intersectionality and Human Rights Law (Hart 2020)
  • Thiago Alves Pinto and Rodrigo Vitorino Souza Alves, 'Investigations on the Use of Limitations to Freedom of Religion or Belief in Brazil' (2020) 15 Religion & Human Rights 77
    DOI: https://doi.org/10.1163/18710328-BJA10004
    The present article analyses cases from top Brazilian courts and has received contributions from several scholars, practitioners, and public officials to better understand the use of limitations to freedom of religion or belief in the country. The Brazilian Constitution provides for the right to freedom of religion or belief as a fundamental right, and other domestic legislation regulates the right, including those implementing international human rights treaties that Brazil has ratified. These laws are easily accessible. Nevertheless, domestic courts seldom rely on such international instruments or the case-law of international bodies in their judgments. Therefore, although these instruments are in force in Brazil, domestic courts do not expressly use or refer to the clauses of permissible limitations of the relevant international and regional human rights instruments, creating a scenario with low levels of legal certainty for those seeking the protection of the right to freedom of religion or belief.
  • Nazila Ghanea and Thiago Alves Pinto, 'Parliamentarians and Freedom of Religion or Belief' (2020) OxHRH Blog
    Parliamentary networks for human rights are not unheard of. Several networks exist which draw attention to the role of parliaments and parliamentarians in the promotion and protection of human rights, for example, the ASEAN Parliamentarians for Human Rights and the Inter-Parliamentary Union (IPU)’s Committee on the Human Rights of Parliamentarians. The UN General Assembly, the Human Rights Council and the Office of the High Commissioner for Human Rights have also drawn attention to parliaments’ engagement with human rights. The idea of a parliamentary network focused on a particular human right, however, is very novel.
  • C O'Regan, 'Prosecutions and Politics in a Constitutional State: Prosecution of Heads of State in post-apartheid South Africa' in Andras Sajo and Renata Uitz (eds), Critical Essays on Human Rights Criticism (Boomuitgevers 2020)
    ISBN: 978-94-6236-123-2
  • S Atrey, 'The Humans of Human Rights: From Universality to Intersectionality' in S Atrey and P Dunne (eds), Intersectionality and Human Rights Law (Hart 2020)
  • Ch. Kypraios Kypraios, The Socioeconomic Rights Obligations of States and IFIs during Sovereign Debt Management (Springer 2020) (forthcoming)
  • Ch. Kypraios Kypraios and B. Reynaud, 'The State and the new space economy: Enabling 21st century privateers or asserting international law?' (2020) 4 Católica Law Review 11 (forthcoming)
  • S Theil, 'Excavating Landmarks—Empirical Contributions to Doctrinal Analysis' (2019) Journal of Environmental Law
    The idea of landmark cases is ubiquitous in legal scholarship and adjudication. Both scholars who rely on ‘landmark’ cases and those who avoid the label often focus too much attention on a small sample of individual cases when researching legal doctrine. This risks missing important cases and pieces of the doctrinal picture. The article proposes an updated methodology that returns ‘to the basics’ of doctrinal scholarship, but with an empirical twist enabled through modern database technology. The approach is exemplified through the case study of López Ostra v Spain, a well-known environmental human rights decision under the European Convention on Human Rights. Based on a comprehensive data set of all environmental decisions, the article argues that the ‘landmark’ status of López Ostra is less empirically and doctrinally clear than conventionally accepted in legal scholarship.
  • S Theil, 'The Problem with the Normative Content of Section 24 of the Constitution of South Africa' (2019) 37 Nordic Journal of Human Rights 105
    DOI: 10.1080/18918131.2019.1643669
    The article critically examines the South African Constitutional Court (ZACC) case law and doctrine on section 24 (right to an environment) of the Constitution of South Africa. It argues that the right has been left normatively impoverished, and especially the interaction and relationship with the cornerstone statute, the National Environmental Management Act (NEMA) remains unclear. This issue centres specifically around three core issues. First, it has not been settled whether section 24 encompasses an individual right and an additional positive obligation, or constitutes a composite right. Second, the individual right contained in section 24 requires further definition and clarification. Key terms have not been given distinctive constitutional contours, and it remains uncertain to what extent legislative instruments such as NEMA are legitimately filling these gaps. Finally, it is unclear how the principle of constitutional subsidiarity applies to section 24 of the Constitution. Even assuming that the principle applies in essentially the same way as to other constitutional provisions, one cannot reasonably determine whether ordinary legislation reflects and gives effect to a constitutional right, if one has no clear notion of the latter’s content.
  • S Theil, 'The Online Harms White Paper: Comparing the UK and German Approaches to Regulation' (2019) Journal of Media Law 1
    DOI: 10.1080/17577632.2019.1666476
    The internet has revolutionised our ability to communicate and connect across historic social, political and geographic divides. Where previously gatekeepers mitigated and negotiated access to mass media platforms, today potentially anyone – and any content – can reach millions of users in an instant. This development bears great opportunities for the democratisation of expression and the diversification of public discourse but has likewise broadened the impact of harm caused online. This raises the question how platforms and services can be regulated effectively to combat online harms without jeopardising free and open discourse. The paper explores the Online Harms White Paper published by the UK Government earlier this year and compares its regulatory approach with the infamous German Network Enforcement Law.
  • S Theil, 'Germany - Federal Constitutional Court qualifies the distinction between fundamental rights obligations of the state and private actors' [2019] Public Law 790 [Case Note]
    The German Federal Constitutional Court (FCC) recently issued a significant decision requiring Facebook to reinstate the page of a far-right party in the lead up to the European Parliament election. The party had shared content to its page which Facebook classified as violating provisions of its community standards on hate speech. Facebook first curtailed the visibility of the posts and prevented the sharing of further content, before ultimately deleting the page entirely. The case suggests that at least where private actors have acquired a level of market dominance and provide a significant platform for public communication and discourse, freedom of expression can legitimately limit their contractual autonomy: perhaps to the point where the obligations are indistinguishable in practice from those of the state.
  • S Theil, 'Prorogued until October? How the Prorogation Act 1867 could be used to sideline Parliament for good' (2019) Verfassungsblog
    The British government under Prime Minister Boris Johnson yesterday secured a prorogation of Parliament from the Queen. Barring an intervention from the courts, Parliament will stand prorogued no earlier than Monday 9th September and no later than Thursday 12th September 2019 to Monday 14th October 2019. Much attention focused on the timing of the prorogation. The government evidently sought to avoid the impression that the sole, or indeed primary goal of the prorogation was to cut short the time for parliamentary debate of Brexit. For many commentators the weeks from now until 12 September and from 14 October to 31 October (the day the United Kingdom exits the European Union) were crucial. It tipped the balance of the prorogation from blindingly unconstitutional to constitutionally dubious, but permissible. Regardless of whether one finds this line of reasoning convincing, there is a threat that this prorogation can be extended indefinitely that has been largely overlooked: the Prorogation Act 1867.

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