This article examines the introduction of an explicit recommendation on judicial liability for criminal offences by the OSCE’s 2023 Warsaw Recommendations. It considers how this recommendation on criminal liability intersects with disciplinary liability and judicial immunity to protect both the judicial independence and accountability necessary for the rule of law. The article emphasises the need to maintain clear institutional and decision-making boundaries between disciplinary and criminal authorities to preserve the separation of powers and protect judicial independence. It reviews pre-existing international guidance on the scope of judicial immunity and the circumstances in which immunity may justifiably be lifted. It also explores the relationship between disciplinary and criminal authorities, investigations, and proceedings. Particular attention is given to the procedure for the lifting of judicial immunity, the possible suspension of a judge pending criminal investigation, the sequence of the two processes, the confidentiality of investigations, as well as the disciplinary consequences of criminal conviction. The article also considers the ways in which cooperation between criminal and disciplinary authorities can support anti-corruption efforts noting the need for greater clarity on balancing information-sharing with confidentiality and without jeopardising the separation of powers. The paper concludes with the importance of the functional independence and integrity of any bodies and processes conducting criminal investigations of judges, a consideration which is a hallmark of the Warsaw Recommendations in relation to disciplinary proceedings but it equally important in criminal proceedings.
The literature on immigration decision-making tends to characterize policies as reflective of regime type, contrasting liberal-democratic and authoritarian approaches to governance. Within this framework, liberal-democratic states' frequent use of autocratic policy tools, such as granting full executive authority with no meaningful constraints, legal basis, or judicial oversight, appears to create a major aberration from constitutional principles grounded in checks and balances. This paper challenges the assumption that the use of autocratic tools by liberal-democratic states is an aberration. Rather, it argues that the use of such tools is constitutive element of the liberal-democratic governance of mobility. By tracing the philosophical, historical, and ideological continuities linking republicanism, liberalism, and geopolitical ambition, the paper demonstrates how both domestic and international mechanisms of mobility governance legitimize the use of executive decisions; and crucially, depend upon the real and imagined emergencies that render their use necessary and legitimate. Through the case of the United States, the paper further examines how mechanisms such as the Chinese Exclusion Laws, extraterritorial jurisdiction, and the plenary power doctrine institutionalized mobility management through the intersecting discourses of emergency and civilization. It situates these instruments within a genealogy of republican executive power, imperial governance, and civilizational hierarchy, revealing how liberal notions of order, progress, and protection have legitimized exceptional governance practices both within and beyond the national borders of the contemporary liberal-democratic states. The paper and the US case are instructive of three overarching trends in immigration decision-making: they advance a holistic understanding of autocratic tools as central to liberal democracies' regulation of global mobility; they allow for mapping out the institutional and ideological genealogy of these mechanisms within broader projects of civilization and empire; and they demonstrate the value of interdisciplinary inquiry for understanding how the use of executive power in modern liberal democracies becomes normalized and endures in contemporary mobility governance, including through the continued reproduction of a North–South mobility divide.
Across the world, political leaders – both democratic and autocratic –, are becoming more creative in mobilizing policy tools that circumvent judicial review or parliamentary oversight to enact migration policies in line with their economic, geopolitical or ideological goals. Such autocratic policy tools, as we call them, concentrate the power to make laws and rules in one hand, the hand that also executes the law. This is exemplified by straightforward ‘rule by decree’ situations, but also by the use of emergency powers or by the enactment of de facto policies that entirely lack a legal basis. The ten articles in this Special Issue bridge insights from Law and Political Science to examine such autocratic policy tools in migration policy across the globe. In this introduction, we (1) conceptualize the notion of autocratic policy tools and discuss implications for debates on autocratization and rule of law decline, (2) map the variety of such tools to showcase that they are mobilized by both democratic and autocratic regimes as well as for both restrictive and permissive goals, and (3) explore why autocratic policy tools are problematic by nature, irrespective of the content of the policy. Hereby, this Special Issue provides valuable insights for scholars to recognize those practices in other policy areas and to advance insights into autocratization and rule of law decay more broadly.
This article contributes to the study of ‘democratic front-sliding’ by proposing an empirically informed typology of strategies a reformist government may adopt towards state institutions after a period of democratic backsliding. Drawing on a single-jurisdiction case study from Poland of a post-backsliding government’s immediate approach to the public service media, the Constitutional Tribunal, and the judiciary we inductively develop a non-exhaustive typology comprising of ‘procedural violation’, ‘strategic marginalisation’, and ‘principled legalism’. We also propose a framework for evaluating these strategies from a liberal constitutional perspective, focusing on: the specificity of the government’s diagnosis of post-backsliding damage; the transparency of its reform plan; the legality and proportionality of its actions; the legitimacy of the measures, understood as acting in good faith and pursuing broader reforms aimed at increasing institutional independence, pluralism, and proper functioning; and, finally, the social reception of these measures and their implications for the perceived legitimacy of democratic front-sliding. Our observations are framed in the period from a reformist government taking office in December 2023 to the presidential election in June 2025.
How do autocratic states in the Global South develop liberalizing migration policy reforms despite their ‘illiberal' regime orientations? Traditional scholarly works tend to emphasize the centrality of autocratic states in shaping domestic labor migration policies in the Global South. Yet, scholars have not geopolitically examined how autocratic states instrumentalize autocratic policy tools through co-optation with international organizations to implement ‘liberalizing' migration policies (i.e., removal of exit permits and pro-migrant rights reforms) linked to their domestic and geopolitical objectives. Drawing from two comparative cases in the Gulf, namely the UAE-ILO (2015-2017) and Qatar-ILO (2018-present), I argue that autocratic states employ a diverse range of autocratic policy tools (i.e., joint technical agreements, ministerial decrees, and resolutions) not only to liberalize their labor migration reforms through institutional co-optation with international organizations but also in reaction to existing geopolitical threats. Rather than viewing such institutional co-optation as a form of political concession, I contend that these political economy dynamics reflect the structural capacities of autocratic Gulf states to rule despite extensive geopolitical pressures within the international community. Methodologically, I draw on primary and secondary sources, including field observations, process tracing, secondary analysis of government/public policy reports, and newspapers. Ultimately, this study advances debates on political regimes and South-South migration politics by demonstrating the structural capacity of Gulf states via autocratic policy tools to co-opt international organizations as part of their global legitimization strategies in the Global South and beyond.
This article highlights the imperial echoes in the project of European integration, a project designed to bolster elite power with respect both to the geopolitics of the world outside and to the politics of the enfranchised masses within. After the Second World War these echoes resound in conjunction with US imperialism and the restricted democracy associated with Cold War liberalism. With the end of the Cold War, Europe cleaves closer to US-led hegemony; but it also sees counter-movements labelled ‘populist’. To recall these imperialist echoes and highlight the misleading nature of the dominant narratives helps us to cast a critical look at the current liberal anti-populism and the idea of constructing a European society through EU law.
The 2016 judicial vetting reform in Albania represents one the most far-reaching models of vetting as a re-evaluation mechanism for sitting judges and prosecutors. Judicial vetting was embedded on a comprehensive constitutional reform which aimed at improving public trust in the judiciary and strengthening the rule of law. The reform reorganized the judiciary, created new self-governing judicial institutions, set up the Special Prosecution Office against Corruption and Organized Crime (SPAK) and introduced the re-evaluation process of judges and prosecutors. Judicial vetting has become a frequently employed tool – although at different degrees – in several pre-accession countries such as Albania, Moldova, Ukraine, Serbia. This increased interest in judicial vetting invites reflections on its appropriateness as a tool to strengthen accountability and integrity in the judiciary within the confines of rule of law guarantees. This article argues that the way in which vetting was implemented in Albania has undermined the full compliance of the process with components of the rule of law such as judicial independence and fair trial rights. In addition, effects of the reform such as a high backlog of cases, high number of vacancies throughout the judiciary have undermined effective judicial protection and access to courts.
This article examines Colombia’s response to Venezuelan displacement between 2017 and 2021, focusing on the use of decree-based and administrative instruments to regularize nearly two million displaced Venezuelans and prevent statelessness. Drawing on a qualitative case study combining document analysis and thirty semi-structured interviews, the article analyses three key measures: the Permiso Especial de Permanencia (PEP), Primero la Niñez, and the Estatuto Temporal de Protección para Migrantes Venezolanos (ETPV). This article asks: how are executive policy instruments used to govern large-scale displacement in democratic settings, and what implications do they have for migration outcomes? Building on recent scholarship on autocratic policy tools (Natter and Slingenberg Natter K, Slingenberg L (2025) Who rules over migrants? Autocratic tools in migration policies (forthcoming (this special issue))), the article conceptualizes executive instruments as mechanisms that can concentrate decision-making authority within the executive. It shows that these tools enabled rapid and adaptive responses under conditions of urgency and political constraint, while also limiting political contestation and legislative involvement. At the same time, they produced forms of legal inclusion that remain temporary, discretionary, and vulnerable to policy change. The findings reveal a central tension: instruments that concentrate executive authority can expand migrant rights while undermining their durability. More broadly, the article challenges assumptions that executive-driven tools are inherently restrictive, highlighting instead their procedural logic and ambivalent role within democratic migration governance. By analytically distinguishing between policy tools and policy outcomes, the article contributes to debates on migration governance and executive power.
This article examines whether and under what conditions discretionary power qualifies as an autocratic tool. While discretion is a pervasive and often unavoidable feature of migration governance, it is not inherently autocratic. Drawing on an analysis of legal arrangements in EU migration law, the article distinguishes between historically entrenched forms of broad discretion and more recent instances in which discretion has been strategically instrumentalised to concentrate decision-making power in the hands of executives. While both instances of executive power can be criticised from a rule of law perspective, only the latter qualifies as an autocratic tool. The analysis suggests that discretion, as an autocratic tool, operates in the absence meaningful parliamentary or judicial oversight and serves the purpose of cultivating an image of executives as ultimate arbiters of migration control.
In European countries that are still considered liberal democracies such as The Netherlands and Belgium, one finds multiple cases of authorities executing policies targeting migrants that are manifestly illegal. The measures are illegal because they typically lack sufficient statutory basis or violate higher legal norms. The illegality is manifest because legal advisors of the government or courts have already found the measures illegal. The measures constitute autocratic policy tools within the meaning proposed by the editors of this special issue, because they deliberately exceed the legal limits set by treaty law, constitutional law and ordinary legislation, concentrating public power in the hands of the executive. According to the legal literature on autocratic rule, a typical feature of autocratic policy tools is the use of legal instruments enabling governments to portray their policies as in compliance with the law in order to get legal legitimacy, which in turn helps them win the support of the population and international actors. But when it comes to manifestly illegal measures the prospect of a legality bonus is absent. By the same token the manifestly illegal measures constitute a deployment of law, albeit in an unobvious way. But why do authorities cast the manifestly illegal measures in a legal form if they cannot benefit from the legality bonus? Why not simply operate completely outside the law? What kind of law can cope with measures that are overtly illegal? How can authorities afford to operate without legal legitimacy? The answer is bureaucratic law.
Autocratic policy tools are often associated with democratic backsliding and the erosion of checks and balances. Yet their use is not confined to illiberal regimes. This article examines whether, and in what sense, royal decree-laws in Spain can be understood as autocratic policy tools within a consolidated democracy. Although constitutionally designed for situations of extraordinary and urgent necessity, royal decree-laws temporarily concentrate law-making authority in the executive and limit or compress ordinary parliamentary deliberation, thereby reshaping the institutional balance of powers. Analysing their deployment in migration governance across three policy domains: healthcare access, labour protections for domestic workers, and unaccompanied minor, the article shows that these instruments are not only crisis-driven but can also be used strategically in politically constrained environments. Moreover, their use does not map neatly onto restrictive policy outcomes: royal decree-laws have been employed both to curtail and to expand migrant rights, and in some instances have not been used despite objective crisis conditions. The findings complicate assumptions that equate autocratic tools with illiberal content and instead highlight their procedural logic and ambivalent role within democratic systems. By reassessing the concept through the Spanish experience, the article contributes to debates on executive power, accountability, and migration governance in contemporary democracies.
Why do autocratizing governments adopt liberal migration policies despite migration-skeptical electorates? Existing scholarship often links open migration policies to liberal governments and restrictions with autocratizing ones. Yet Poland under PiS and Türkiye under AKP challenge this assumption. Integrating insights from political economy and multi-level governance, it argues that autocratizing governments employ responsibility dumping to reconcile the dual mandate dilemma: satisfying employer demand for labor while avoiding backlash from migration-skeptical voters. Responsibility dumping denotes the downward relocation of implementation duties and fiscal exposure to subnational and non-state actors without commensurate authority and resources. A comparative analysis of the governance of refugee arrivals—Ukrainians in Poland since 2015 and Syrians in Türkiye since 2011—demonstrate how national economic structures shape policy substance. Poland enabled formal labor market integration, while Türkiye relied on informal employment. These findings refine debates on the “liberal” and “illiberal paradoxes” by showing that autocratizing governments use multi-level governance not to democratize policymaking but to consolidate executive power and manage contested policy domains.
This brief paper offers some observations on the international law violations that occurred as a result of the US abduction of Venezuelan president Maduro and addresses some of the issues that may come up in the criminal proceedings against Maduro in New York.
This paper revisits the German Constitutional Court’s Lisbon judgment (2009) and its restrictive stance towards European integration. It argues that the judgment’s reasoning was problematic from the outset and has become increasingly untenable in view of current geopolitical and domestic challenges. In light of subsequent political and legal developments, the judgment’s authority has significantly eroded. In practice, German policy and the Court itself have already moved beyond the rigid constraints suggested by the Lisbon judgment, with major integrative decisions advancing into areas the Court had sought to block. The article shows paths to a recalibration of the Court’s restrictive jurisprudence, building on the more integration-friendly line developed by its First Senate. Thus, it situates German constitutional law more constructively within the European constitutional order.
Over the past two decades, the Venice Commission has played a central role in promoting constitutional reform and the rule of law across Europe. Through its soft law instruments—most notably the Rule of Law Checklist—it has shaped standards for democratic governance. Yet its engagement with the lawmaking process remains largely formalistic, prioritizing procedural legality over the substantive democratic integrity essential for re-democratization. Using Poland as a case study, this article examines how this formalist orientation has limited the Commission’s capacity to support constitutional recovery in contexts marked by systemic legal degradation. It argues that legislative processes are not mere technical mechanisms but vital components of democratic legitimacy and resilience. Framing the analysis within the emerging concept of post-formal constitutionalism, the article calls for a more substantively engaged, context-sensitive approach to assessing and guiding the democratic lawmaking process. It concludes that the Commission, if willing to adapt, is uniquely positioned to help further shape and restore democratic lawmaking standards (also) in post-illiberal settings.
The article analyses the identity jurisprudence of the Constitutional Courts of Romania, Hungary and Poland. Identity expressions formulated by the constitutional courts in the three juridictions were for a long period of time analogised, perceived as interchangeable expressions of RoL backsliding. As we claim, these analogies were, particularly as regards Romania, false. By the same token, due to the capillarity and crosshybridization of supranational and international legal standards, the legal and political implications of false analogies are not jurisdictionally contained. In Romania, opposition to the EU institutions was for a long time accidental-coincidental and unsystematic. This specificity was due in turn, as we show, to the specific conditionalities applicable to this country, the specificity of the constitutional framework, and the protracted application of anticorruption conditionalities under the CVM long after the EU accession on January 1st, 2007. However, more recent forays of the Constitutional Court of Romania into the terrain of identity, notwithstanding their declared purposes, raise similar concerns of instrumentalism as in Hungary and Poland. We argue therefore that, notwithstanding the initial divergence between the jurisdictions and longstanding false analogies made between them, they all converged in the end, the common denominator being identity instrumentalism. In so arguing, we also make a more foundational yet implicit claim regarding the conditions of possibility for constitutionalism in the European Union.
This paper suggests that the conservative-populist backlash that liberal democracies are facing can be understood as part of heterodox protest movements which react to the liberal-legal hegemony, and, in alliance with populist movements and parties, move into the political centre. Here, I understand the illiberal, or better anti-liberal, reaction to liberal democracy, constitutionalism, and human rights as the result of a long-term mobilization of different counterforces around a dissensus on liberal democracy and its main constitutional and legal approach and mindset. In recent years, an initially rather marginal or peripheral, but now forceful, set of protest and protest movements has been able to move to the political centre, attacking the liberal-constitutional hegemony head on. The paper will discuss the heterodox critique of the liberal-legal consensus, subsequently identifying five key components (including the sacred and the profane, leadership, intolerance, impure universalism, and a turn to the past), particularly derived from Eisenstadt’s analysis of sectarian and heterodox movements. In the second part, I will apply these components to, first, a discussion of intellectual, theoretical justifications for the conservative-heterodox project, to then turn to more practically oriented documents, using a similar analysis of the five components. I conclude by arguing that the heterodox project contains a strong totalizing dimension, by combining a range of positions of charismatisation, closure, and fundamentalism, and which prioritizes the primordial and the sacred, to the detriment of the civic.
While in some countries judicial associations have long been objects of scholarly interest, the burgeoning debate over judicial independence in Europe and the growing interconnection between associations of different states have broadened the discussion beyond strictly domestic borders. The adoption of a specific opinion on judicial associations by the Consultative Council of European Judges on November 6, 2020 (No. 23/2020) is further evidence of the increasing transnational attention to the topic. To draft such an Opinion, questionnaires were submitted to Council of Europe (CoE) Member States. By analysing and classifying the replies of the CoE Member States, we first intend to offer a comprehensive assessment of the European experiences to highlight convergences and divergences. Secondly, we aim to juxtapose the representation of judicial associations as it emerges from the replies with the one debated in legal scholarship. To this end, we will try to understand the role of judicial associations in promoting and upholding judicial independence, with particular emphasis on the Italian Case.
This article sets the issue of transfer of judges within an international and constitutional framework of judicial independence. It has been more than 10 years since the Kyiv Recommendations on Judicial Independence (Kyiv Recommendations) were published by the Organization for Security and Cooperation in Europe (OSCE), Office for Democratic Institutions and Human Rights (ODIHR), which seeks to help countries find an appropriate balance between independence and accountability, whilst protecting judges from broader external and internal pressures. The OSCE/ODIHR have seen practices develop in the region to avoid the recommendations in spirit. Transfer of judges has a legitimate place in court management and professional development, but has also been used to threaten judges who do not comply with political will in individual cases. There are mechanisms, if not properly regulated, that allow judges to be threatened, such as disciplinary transfers, denial of transfers when requested, court reorganization, and case management, amongst others. This article is adapted from an earlier draft thematic paper used to address the gap and revise the Kyiv Recommendations. It found that a number of practices involving transfer of judges were incompatible with the spirit and letter of the Kyiv Recommendations. It is set out in four main parts: The first section sets out the introduction, issues and the methodology of the original project, section two provides an overview of international norms and guidelines, providing a legal framework on the transfer of judges and the case law jurisprudence of the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) on the transfer of judges. In section three, I shall present the practical operation of how judges are transferred utilising some case studies as examples. The last section will discuss conclusions and recommendations. As such, this article will look at the international norms which allow for transfer of judges, and the procedural guarantees underlying those circumstances, the protection of judicial independence and conclude on how transfers of judges can, under certain circumstances, affect their independence and accountability.
