Zbornik znanstvenih razprav - letnik 2025

Maruša T. Veber

The Ljubljana Law Review: Tradition, Transformation, and Open Access

Jean d’Aspremont

The Performative Resilience of International Humanitarian Law in a Time of Discursive Amnesia

This article starts by diagnosing the discursive amnesia that came to surround international humanitarian law in contemporary public discourse in 2023–2025. While violations of IHL have proliferated, the legal categories that render warfare legible—civilian, combatant, proportionality, distinction—have been systematically evacuated from political and media narratives. It is submitted here that this silence is as dangerous as the violations themselves, as it condemns international humanitarian law’s prescriptions to oblivion. The article identifies five plausible causes of this discursive amnesia: intra-norm competition with the legal rules on genocide, complexity in asymmetric conflicts, the narrative monopoly of jus ad bellum discourse, critical discomforts with the colonial and gendered histories of international humanitarian law, and the emergence of zones of incriticability. Against this diagnosis, the article argues that international humanitarian law has lost none of its performative lustre, which can be tapped and mobilized through sustained, institutionally-backed articulation of its core categories. The article concludes with an invitation to mobilize the performativity of international humanitarian law across legal, educational, operational, and communicative registers.

Bardh Bokshi

Legalisation of Popular Constituent Power in Kosovo: Can Fundamentally Important Amendments Be Subject to Legalised Popular Approval?

Popular constituent power is not bound by the rules and procedures of a pre-existing constitution. Nevertheless, it is possible and desirable to place that power within the framework of a constitutional regime. The Constitution of Kosovo provides for the enactment of constitutional amendments proposed by ordinary institutional actors. There are topics, however, which—owing to their fundamental constitutional importance— should meet the approval of popular constituent power. The exercise of popular constituent power should be legalised and strictly limited to issues of fundamental importance for the constitutional order of Kosovo. This is especially crucial for amendments affecting core constitutional principles enshrined in Chapter I of the Constitution of Kosovo, such as the unitary character of the state, the uniqueness of the judiciary, and multi-ethnicity. This article proposes the legalisation of popular constituent power by establishing mechanisms such as referenda and constituent assemblies to enable popular approval of amendments, in addition to international agreements capable of transforming the Kosovar constitutional order in a fundamental way. By doing so, Kosovo can strengthen internal statehood and enhance the democratic legitimacy of fundamental constitutional changes. The article concludes by calling on the authorities in Kosovo to enact legislation on the exercise of legalised constituent power, while by also putting in place safeguards in compliance with international standards on basic human rights and liberties.

Zsófia Papp

Behind the Screens of Flexibility and Worker Autonomy: A Human Rights-Based Analysis of Telework in Romania

The analysis of telework legislation can be approached from various angles. This article aims to examine the Romanian Telework Act, its subsequent amendments, and the relevant provisions of the Labour Code from a human rights perspective. Such an approach is justified by the fact that telework, as a flexible and atypical work arrangement, diverges significantly from traditional employment, raising distinct legal and practical challenges regarding fundamental rights. Within the framework of the right to fair and just working conditions—and in connection with the right to respect for private and family life—the article reviews the provisions on working time, work schedules, and work-life balance in telework legislation. Regarding privacy, it devotes attention to the parameters of monitoring teleworkers’ activity and the conditions under which inspections may be carried out, placing particular emphasis on the issue of the teleworker’s consent. Furthermore, it addresses the provisions concerning the protection of teleworkers’ health and safety, highlighting how the implementation of such measures—and, by extension, the responsibilities of the parties—is affected by the atypical nature of telework. Additionally, it briefly touches upon the principle of equal treatment and the extent of collective rights and agreement coverage for teleworkers. Ultimately, it seeks to answer the question: how secure are the employment relationships of teleworkers in terms of the fundamental rights guarantees that apply to them?

Rok Dacar

Protiustavnost politične stranke v slovenski ustavni ureditvi

Avtor obravnava slovensko ustavnopravno ureditev izrekanja omejevalnih ukrepov zoper politične stranke po 68. členu Zakona o ustavnem sodišču (ZUstS). Ta določa izključno pristojnost Ustavnega sodišča za presojo protiustavnosti aktov in delovanja političnih strank ter za odreditev njihovega izbrisa iz registra političnih strank. Podrobno so analizirani procesni elementi ter vsebinska merila, ki jih je oblikovalo Ustavno sodišče, vključno z zahtevo obstoja posebej kvalificirane grožnje demokratični ureditvi. Prispevek pokaže, da slovenska ureditev na eni strani sledi nemškemu modelu, hkrati pa od njega na več mestih pomembno odstopa. Tako določa zelo širok nabor subjektov, ki lahko sprožijo postopek za presojo protiustavnosti aktov ali delovanja politične stranke, hkrati pa ne vsebuje zakonskih določb o učinkih izbrisa parlamentarne stranke iz registra, kar se v praksi lahko pokaže kot problematično. Primerjalnopravni okvir (Nemčija, ESČP) služi kot ozadje za kontekstualizacijo in kritično vrednotenje slovenske ureditve. Avtor odgovarja na raziskovalno vprašanje, kakšne so značilnosti postopkov po 68. členu ZUstS v Republiki Sloveniji. S tem si prizadeva zapolniti vrzel v teoretičnih razpravah, kjer je bilo to vprašanje doslej spregledano.

Miha Hafner, Lora Briški

Novejše dileme o dometu privilegija zoper samoobtožbo in prepovedi sojenja o isti stvari na primeru kršitev v zvezi z drogami

Avtorja obravnavata dve procesni dilemi, ki se porajata v postopkih zaradi prepovedanih ravnanj (prekrškov in kaznivih dejanj) s področja prepovedanih drog. V prvem delu namenita pozornost dometu varstva privilegija zoper samoobtožbo pri izročanju predmetov na zahtevo državnih organov. V drugem pa analizirata problematiko podvajanja kaznovalnih postopkov (prekrškovnega in kazenskega) in s tem problem dometa prepovedi ponovnega sojenja o isti stvari. Pri tem se osredotočita na nedavne spremembe pristopov evropskih in domačih sodišč k presoji omenjenih vprašanj. Glede tega ugotavljata, da v pozitivnem pravu ne najdemo podrobnejših in določnih pravil, kako naj ravnajo organi, soočeni s konkretnim problemom. Z obema jamstvoma skladno ravnanje državnih organov je zato morala vsebinsko napolniti sodna praksa evropskih in domačih sodišč, katere odgovori pa v nekaterih vidikih ostajajo nedorečeni.

Tilen Štajnpihler Božič

(R)evolution Interrupted? A Collective Reflection on Equality and Anti-discrimination Law in a Climate of Regression

The article reassesses the trajectory of European anti-discrimination law from the “revolution” of 2000—marked by the EU Racial Equality and Employment Equality Directives—to the more sobering climate surrounding their 25th anniversary in 2025. While the Directives broadened protection and introduced potent enforcement tools (including burden-of-proof rules and requirements for effective sanctions), the momentum of EU equality law has largely stalled. The clearest symbol is the Horizontal Directive proposal, blocked in the Council since 2008, alongside only modest and often consolidating developments in EU secondary law, mostly in the gender field. The author, therefore, asks how anti-discrimination law can be advanced in a political and social landscape increasingly different from the one that enabled the 2000–2004 expansion. Drawing on collective reflection at the 12th Annual Berkeley Center on Comparative Equality and Anti-Discrimination Law Conference in Ljubljana (2025), the author distils three interlinked themes. First, he maps contemporary challenges: entrenched discriminatory attitudes, institutional bias, weak enforcement marked by political and judicial obstacles, data deficits, and the practical difficulty of addressing intersectional and algorithmic discrimination. Second, he outlines possible responses that build on a dual strategy of defence and adaptation: the principle of non-regression o human rights standards as a shield against rollback, alongside equality mainstreaming, strategic litigation, and complementary policy tools that may bypass legislative deadlock. Third, he highlights the importance of inspiration as a professional and civic resource, emphasising professional responsibility, coalition-building beyond the juridical field, and persistence amid setbacks.

Laura Carlson

The Changing Paradigm of Human Rights Justifications: Challenges for Civil Society

This article scrutinises the evolving paradigm of human rights justifications (HRJs) and the growing complexities encountered by civil society when states invoke human rights to legitimise restrictive migration policies. Originally conceived as a shield to protect individuals from state power, human rights have increasingly been appropriated by states as instruments of governance, particularly in migration law. Through a typology comprising direct reference, misuse of human rights doctrine, and misuse of international law, the article analyses contemporary legislative reforms in the EU and Sweden—including the activation of the Temporary Protection Directive, tightening of residency requirements, and citizenship restrictions. The empirical and methodological approach integrates the co- production of knowledge with civil society actors. The analysis demonstrates that, while HRJs can be mobilised to expand rights in times of crisis, as in the EU’s response to the Ukrainian refugee influx, they are also deployed to restrict rights, as seen in recent Swedish legislative processes. The article further explores intersectionality as a critical lens and outline s coalition-building and experiential learning as strategies for civil society to counter HRJs. Ultimately, it contends that reinstating human rights as a protective shield depends on strengthening civil society’s role in legal and policy advocacy, knowledge production, and accountability requirements in an era of shifting state rationales.

Vibeke Blaker Strand

The Burden of Proof Rule Under EU Nondiscrimination Law and Algorithmic Discrimination: Addressing Challenges and Possibilities

Emerging technologies, including artificial intelligence, present significant challenges to discrimination law, particularly regarding effective enforcement. This article highlights the evidentiary difficulties in proving algorithmic discrimination and examines the rule on the burden of proof under EU non-discrimination law in this context. It discusses challenges and possibilities relating to the role of the burden of proof rule in enhancing the principle of equality and non-discrimination, particularly in relation to algorithmic discrimination. A key obstacle is the lack of transparency, a problem not unique to algorithmic discrimination but also a well-known challenge in the field of pay discrimination. The article argues that valuable insights can be drawn from how the burden of proof rule has been developed and concretised under EU law on the right to equal pay between women and men, with particular attention to the 2023 Pay Transparency Directive.

Jule Mulder

The Dialogue Between the Courts Revisited. An Analysis of National Preliminary References and Their Impact on Advancing CJEU Case Law on Religious Discrimination

This article explores the dialogue between the CJEU and national courts on the scope and meaning of religious discrimination under Framework Directive 2000/78/EC. Focusing on two main emerging strands of case law concerned with (1) neutrality policies banning religious symbols at work and (2) the internal autonomy of religious organisations, and drawing together insights from integration studies and critical comparative law; the analysis explores how national courts framed, explained and presented their preliminary references and how this potentially impacted CJEU judgments. Using the preliminary reference procedure, national courts from three jurisdictions repeatedly asked the CJEU very similar questions, to clarify, challenge or confirm the Court’s approach with various degrees of success. Three common strategies emerge. National courts ask questions via the preliminary reference procedure to shelter national law from EU influences; they rely on EU law to empower themselves domestically; and, occasionally, they reach out to influence the development of EU law. In the latter case, the dialogue seems to be most challenging in the context of religious discrimination, as self-referential national courts often struggle to fully engage with the EU legal framework and to provide a convincing argument to the CJEU. While not conclusive in isolation, the findings provide another piece of knowledge in our quest to understand the apparent stagnation of EU non-discrimination law and the CJEU case law on religious discrimination, which has attracted significant criticism from academia and practice.

Ivana Isailović

Political Economy, Authoritarianism and Bottom-up Resistance: Reflections on Serbian Students’ Protests

This short essay attempts to make sense of the year-long student led protests in Serbia. For the past year, students have been protesting in support of the rule of law, against state capture and corruption, mobilising a broad coalition bridging class, urban/ rural and religious divides. In the process, students have emerged as the main political actors, organising a bottom-up, grassroots democratic resistance to the authoritarian regime and its political economy, and providing transformative practices and guiding principles for a more democratic, just distribution of power and resources. The essay engages with the political economy of these protests—all the material, political and economic conditions— that shaped them, and their meanings. It offers reflections on their features and strengths; the reactions of domestic institutions, which for the most part have resorted to intimidation and police violence; and the evolution of the EU’s position, which, from providing a relative support to the regime, is increasingly pointing out its dysfunctions. Finally, it describes the political economy of authoritarianism that students are resisting, in which domestic laws are by passed and breached, considerable power is given to corporate interests, and corruption, state capture and ensuing inequalities are high. At a time when democratic values are eroding in the Global North, and power concentration and inequalities are rising, the student led movement offers a glimmer of hope and, perhaps, valuable lessons.

Ole Leitner

Effectively Protecting an Area without Internal Frontiers within the EU? VGH München, Judgment of 17 March 2025 – 10 BV 24.700

The article analyses the VGH Munich judgment of 17 March 2025 (10 BV 24.700), the first German decision to declare Germany’s internal border controls at the German– Austrian border unlawful under EU law. It situates the case within the Schengen system, whose core achievement is the abolition of systematic controls at internal borders. Since 2015, however, several Member States have repeatedly reintroduced “temporary” controls, initially in response to the refugee crisis and later justified by terrorism, secondary migration and COVID-19, with some measures persisting for years. While the Schengen Borders Code (SBC) permits reintroduction only exceptionally and within strict time limits, Member States have increasingly exceeded those limits, and the Commission has largely refrained from enforcement, shifting the burden to individuals and national courts. The case arose from an identity check carried out as an internal border control in June 2022. The plain tiff, an Austrian academic who frequently crosses the border, sought a declaratory judgment that the check was unlawful. The VGH held the action admissible on the basis of a concrete risk of recurrence, rejecting arguments based on short-term expiry and finding the check not to be a “serious” rights infringement. Substantively, applying CJEU case law in NW, it held the SBC time limits to be absolute: controls become unlawful once they exceed the permitted duration unless a genuinely “new” serious threat is shown. Judicial review is limited to the reasons stated in the Article 25a notification. The judgment highlights both national courts’ enforcement role and the potential incompatibility of German admissibility rules with effective judicial protection under EU law.