Habermas,market‐friendly human rights,and the revisibility of economic globalization

This article examines the impacts, on citizenship rights, democratic practice and public policy, of the constitution‐like regimes for the protection of investor rights embedded within contemporary international investment treaties. It argues that a central objective of these investment treaties is to remove specific governmental functions from the stock of policy instruments available to national governments and to democratic polities. Drawing upon Habermas' discourse‐theoretic approach to law and democracy, the article argues that national states have the room to deviate, if not withdraw from the current configuration of economic rights advanced and enforced through international investment treaties. A robust proceduralist approach to rights and democracy would subject these agreements to critical democratic practice and open space to revise and roll back some of the rules and institutions associated with economic globalization.     

Reversing delegation? Politicization,de-delegation,and non-majoritarian institutions

Elected governments and states have delegated extensive powers to non-majoritarian institutions (NMIs) such as independent central banks and regulatory agencies, courts, and international trade and investment organizations, which have become central actors in governance. But, far from having resolved the balance between political control and governing competence or removed certain issues from political debate, NMIs have faced challenges to their legitimacy by elected officials and sometimes attempts to reverse delegation through “de-delegation”. Our special issue studies the politicization of NMIs, and then whether, why and how it leads to de-delegation through reducing the formal powers of NMIs or increasing controls over them. In this article, we examine how to analyze de-delegation, how politicization of NMIs has developed, and how it has affected de-delegation. We underline not only institutional rules that constrain elected officials but also the actions of NMIs themselves and their relationships with other NMIs as part of multi-level governance systems. We find that politicization has varied, but even when strong, elected officials have not introduced widespread and long-lasting de-delegation; on the contrary, they have frequently widened the powers of NMIs. Insofar as elected politicians have sought to curb NMIs, they have often preferred to use existing controls and non-compliance. Finally, we consider the wider implications of the combination of politicization and lack of de-delegation for broader issues of governance such as the division of powers between the elected and unelected and democratic accountability.     

Courts and the politics of secrecy: national security,human rights and the importance of supranational oversight

Abstract

The article examines the use of state secrecy in court litigation concerning alleged gross human rights violations committed in the struggle against terrorism, focusing specifically on cases of extraordinary rendition and comparing the performance of courts in the United States, in Italy and the European Court of Human Rights (ECtHR). The article explains that national courts have validated the assertion by national governments of the state secret privilege in litigation involving cases of extraordinary rendition, ensuring de facto immunity to individuals involved in gross human rights abuses. On the contrary, it underlines that the ECtHR has pierced the veil covering these ‘deep secrets’, undertaking a strict scrutiny of acts of extraordinary rendition to torture committed by governments in the name of national security. As the article argues, the success of the ECtHR can be explained by a number of reasons, including distance, time and institutional design. In conclusion, the case law of the ECtHR on secrecy and national security confirms the continuing importance of supranational courts as instruments of external oversight on the human rights practice of European states.     

Does European Community Regional Policy Empower the Regions?

A central goal of the 1980s reforms of the European Community's regional development policy was to contribute to an increase in the discretionary authority of sub–national decision–makers in the Community's member states. This article assesses the degree to which this goal was attained through comparative studies of selected French and Italian regions. It concludes that only in those regions in which timely policy entrepreneurship on the part of regional–level elected leaders coincided with the pre–existence of a territorial policy Community for economic development did the transfer of resources from the Community contribute to regional empowerment.     

EU Counterterrorism and the Southern Mediterranean Countries after the Arab Spring: New Potential for Cooperation?

The European Union's (EU) relationship with North African countries has long been the subject of intense academic enquiry. For many years, the EU has performed a difficult balancing act between managing the security concerns of its member states, dealing with authoritarian regimes that have questionable human rights records, creating and maintaining good economic relations, and pursuing more normative objectives. Have security objectives overridden other concerns? While the EU has cooperated with regimes with questionable human rights records, counterterrorism cooperation between the EU and North African countries has not developed as much as previous academic studies believe. However, what are the prospects of this changing with more recent developments after the Arab Spring? This article examines in detail the reasons why the EU does not currently conduct significant counterterrorism cooperation with North African countries and discusses whether this situation is likely to change as a result of the events of the Arab Spring, which has swept through North Africa and the Middle East since 2010.     

Domestic law and human rights treaty commitments: The Convention against Torture

How human rights treaties will be incorporated and applied domestically must affect how eager states will be to ratify those treaties. This article focuses on two characteristics of domestic legal systems that shape the relationship between international law and domestic law: whether treaties are directly incorporated into domestic law and whether treaties can override ordinary statute. The analysis probes two arguments as to why domestic legal institutions influence ratification decisions, one emphasizing the potential costs associated with ratification and the other emphasizing congruence between domestic values and treaty norms. Survival analysis of ratification of the Convention against Torture reveals that both judicial independence and making treaties equal or superior to statute increase the likelihood of ratification, which is consistent with the norm-congruence thesis. The results suggest new avenues for investigating the relationships between human rights treaties and domestic legal institutions.     

Human Rights as Reputation Builder: Compliance with the Convention Against Torture

A strong record of human rights protections is an important factor for a state to maintain a positive international reputation. In this article, we suggest that states will use compliance with human rights treaties as a mechanism by which to improve their reputations to help achieve their foreign policy goals. We hypothesize that international human rights compliance is a means to improve a state’s reputation in three specific situations: when the state is facing regional pressures as the result of a desire to join a regional organization; when the state is facing regional pressures not to run afoul of a court within a regional organization; or when a state seeks foreign assistance from an entity with human rights requirements for the receipt of such assistance. We examine our theory by analyzing human rights reports regarding state compliance with specific treaty obligations outlined in the Convention Against Torture (CAT). While the evidence for our hypotheses is mixed, we do find some support for our assertion that state compliance is linked to reputational concerns. In particular, states comply with the CAT when they are part of a regional organization that has a human rights court, and when they are receiving conditional aid from the European Union.     

Resource Allocation Towards Socioeconomic Rights: Lessons from Domestic Courts

The question of resource allocation is particularly pertinent to the realisation of socioeconomic rights. Perceptions of the place of resource allocation impact the adjudication of these rights. This article departs from the premise that with the adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural rights allowing individual communications and the establishment of the African Court on Human and Peoples’ Rights, there will be an increase in resource allocation questions for adjudication. The article interrogates the experience of national courts and examines potential lessons that can be adopted at the international level to overcome the reluctance that supra-national tribunals may have when adjudicating on states obligations to fulfil.     

Violence against women and economic, social and cultural rights in Africa

International human rights treaties and declarations lay out the interconnection of civil and political rights with economic, social, and cultural rights. However, it was not until 1993 at the 2^nd UN Conference on Human Rights in Vienna that governments agreed that all of women’s rights are an integral part of human rights. Promoting women’s economic, social, and cultural rights is a critical human rights advocacy issue. Poverty leaves women more exposed to violence and less able to escape it, and severely restricts women’s ability to organize and fight for change. The article describes work by AI and other NGOs on violence against women and its connection with women's poverty and lack of education, healthcare, housing, and access to land in Africa. Besides the burgeoning of African women’s organizations calling for protection of all women’s human rights, a second hopeful development has been approval in July 2003 of an historic Protocol on the Rights of women in Africa.     

Gender,Citizenship, and Constitutionalism in Zimbabwe: The Fight Against Amendment 14

This article examines the nexus between gender, citizenship and constitutionalism. By using the case study of the 14th Amendment to the Constitution of Zimbabwe, I seek to illustrate how the rights of women with respect to citizenship are manipulated by the state, with this discrimination often couched under African 'culture' or 'tradition'. The article also interrogates the limitations of utilizing the courts in the struggle for gender equality, because of the patriarchal values which are upheld and promoted, often erroneously. In describing the surprising victory by civil society groups and activists in challenging both the courts and the state nationally, this piece concludes with some thoughts on how a broader struggle for gender equality is necessary in the pursuit of social justice.     

Architectures of intergenerational justice: Human dignity,international law,and duties to future generations

This article draws attention to the constitutive requirements of intergenerational justice and exposes the limitations of regulative arguments based on international human rights law. Intergenerational justice demands constraining the regulative freedom of the international community, and it is tempting to assume that adequate constraints are already contained within existing treaties including international human rights treaties. In fact, intergenerational justice demands bespoke constitutional norms at the international level, and it demands entrenching constitutional norms. International human rights law per se implies neither of these constitutive propositions and both are problematic in light of the present structure of international law. Nevertheless, a combination of arguments concerning intergenerational justice and the systemic implications of human dignity yield a more constitutive account of human rights and therefore an internal critique of the overall architecture of international law.     

The Informative Power of Treaty Commitment: Using the Spatial Model to Address Selection Effects

The effects of international institutions on state behavior make up a key research agenda in international‐relations scholarship. Because states self‐select into treaties, we cannot infer that these commitments have causal effects unless we address this selection effect. I explain the significant limitations of the methods used thus far to overcome this problem and argue that a more effective approach must take into account states’ treaty preferences. I describe a novel combination of ideal‐point estimation and propensity‐score matching that can estimate the probabilities of treaty commitment and use them to test hypotheses. I use this procedure to test the effects of three key international human‐rights treaties. My results provide significant new findings regarding the effects of these important agreements. I show that the Convention on the Elimination of All Forms of Discrimination against Women has significantly improved respect for women's rights, but that the Convention against Torture and the International Covenant on Civil and Political Rights have not had significant effects on human rights.     

Governance Delegation Agreements: Shared Sovereignty as a Substitute for Limited Statehood

Governance delegation agreements—international treaties allowing external actors legal authority within host states for fixed terms—succeed in simple and, under certain conditions, complex state‐building tasks. These deals are well institutionalized and have input legitimacy because ratification requires sufficient domestic support from a ruling coalition. In order to obtain that input legitimacy, however, host states constrain external actors commensurate with their level of statehood: Stronger states delegate less legal authority. This article argues that these constraints, which produce joint rather than complete authority, require external actors to work within state structures rather than substituting for them, and thus make coordination of complex tasks more difficult. A quantitative overview of data on consent‐based peacekeeping missions complements a qualitative analysis focused on comparative case studies in Melanesia and Central America to test the theory. The results support the theory and suggest that these deals hold promise particularly for accomplishing complex tasks in especially weak states.     

Sub-State Diplomacy in Malfunctioning States: The Case of the Republika Srpska,Bosnia and Herzegovina

Diplomacy is no longer the preserve of the state. It is increasingly used by sub-state actors to contest state-level authority. In malfunctioning states like Bosnia and Herzegovina, where lengthy state-building efforts have not alleviated the risk of instability, this possibility is a cause for concern. This article builds on paradiplomatic and state-building studies to examine specific aspects of the Republika Srpska's (RS) bid for diplomatic actorness. Based on the content analysis of official documents and interviews, it assesses the level of diplomatic actorness of the RS in four dimensions (legal authority, external presence, internal presence, autonomy) and examines whether this has grown in collaboration or competition with state-level diplomacy. The article shows that the development of the RS's paradiplomatic activities is driven by ethno-political competition, facilitated by state and sub-state actors’ mutual disregard, and that it both echoes and amplifies the systemic malfunctioning of Bosnia and Herzegovina.     

'Settling Accounts' Revisited: Reconciling Global Norms with Local Agency

In the mid- to late-1980s, the discourse of transitional justicewas shaped above all by the experience of countries in LatinAmerica, where military forces continued to exercise autonomouspower even after ceding formal authority to democratically electedgovernments. In this setting, while human rights professionalsagreed that fledgling democracies should undertake prosecutionsin accordance with their international legal obligations, theywere divided over the question of whether further developmentof international obligations in respect of punishment was desirable.Nor was it clear what, precisely, international law alreadyrequired. Writing in the early 1990s, the author of this essay concludedthat States parties to certain international treaties were ingeneral required to prosecute specific crimes. More generally,she argued, wholesale impunity for atrocious crimes was generallyincompatible with States’ responsibility to ensure thatindividuals subject to their power enjoyed fundamental rights.But these duties, she wrote, should not be interpreted to requireaction incompatible with a nascent democracy's political orlegal capacity. In this essay, the author describes how her views have evolvedin the past 15 years. Noting that international legal normsagainst impunity have grown increasingly strong and arguingthat this trend has itself proved a powerful antidote to impunity,the author nonetheless affirms ‘the central importanceof promoting the broad participation of victims and other citizensin the process of designing as well as implementing programmesof transitional justice’ and addresses the inherent tensionbetween these values and norms.     

The changing role of the federal and state courts in safeguarding the rights of the mentally disabled

From the mid-1960s until the early 1980s, federal courts havegreatly expanded the rights of persons who have been institutionalizedfor treatment of mental illness. The rights have included dueprocess in commitment proceedings, provision of services, andtreatment in the least restrictive environment. Federal courtshave based their decisions on federal statutes and constitutionalprinciples of due process, equal protection, and protectionfrom harm. More recently, however, the U.S. Supreme Court haseffectively closed the federal courts as a forum for advancingthe rights of the mentally disabled. Federal courts must, inessence, defer to the states for decisions about treatment ofthe mentally disabled. State courts may decide what servicesare required under state law, while state mental health officialsmay decide specific treatment questions for individual patients.Consequently, advocates for the mentally disabled are turningto state courts to advance client rights. In 1984 two significantcases decided by the New York State Court of Appeals have thepotential for significantly expanding the rights of the mentallydisabled.     

Deaths While under Probation Supervision: What Role for Human Rights Legislation?

Article 3 of the Universal Declaration of Human Rights (UDHR) states that ‘everyone has the right to life’. This right is contained in all human rights treaties that developed from the UDHR, including the European Convention on Human Rights (ECHR). Yet, as we argue, the UK government is failing to protect this right when it comes to certain groups of people under probation supervision. To date, human rights legislation has failed adequately to protect these vulnerable individuals and to hold the state to account. This article explores the greater potential for using human rights legislation to ensure better accountability in this area.     

Regulating political advertising in the EU and USA: a human rights perspective

Underlying the American model of political campaign communication are the US Constitutional guarantees of free speech, which secure the rights of citizens to support political candidates of their choosing and express that support in various forms, from bumper stickers to television advertising. Courts have at times struck down measures regulating political advertising, including limits on the amounts of such advertising and the amounts of funds which candidates, parties and individuals may spend on election‐related speeches and advertising as infringements of these rights. With few exceptions, in the USA, government may not limit the number of spots a candidate airs in an election. In Europe, international norms concerning free expression and fair elections appear in a number of legal instruments, including, most recently, the UK's Human Rights Act 1998 and the EU's Charter of Fundamental Rights. This paper compares the role and development of American First Amendment doctrines in limiting restrictions on political advertising in the USA with the development of comparable norms of free expression under the European Convention on Human Rights, European Union treaties and legislation and national laws of the member states and accession countries. In particular, this paper addresses the validity and enforceability of European legal limits on number, timing, placement, quantity and content of political advertisements under applicable human rights rules and similar regulations. The paper concludes that (1) a combination of European legal instruments, including the European Convention on Human Rights, the European Community Treaty, the European Community's ‘Television Without Frontiers’ Directives and the Council of Europe's Convention on Transfrontier Television offer protections of a kind and type which broadly track the protections of the USA's First Amendment; that (2) it seems that governmental justifications for restricting these freedoms are more readily accepted in Europe than they might be in courts in the USA; and that (3) certain restrictions on political advertising identified in previous studies as existing throughout Europe will face increased judicial scrutiny and some of them are probably illegal under European Human Rights principles. Copyright © 2004 Henry Stewart Publications     

Trustee strategies,politicization and de-delegation: The case of the European Central Bank

This article shows how the European Central Bank (ECB) reduced the risk of politicization and de facto de-delegation despite experiencing contestation. During the euro area crisis and the coronavirus emergency the ECB's monetary policy measures have been widely praised for their effectiveness. Even though the ECB is an independent trustee that cannot be easily sanctioned, it needs to engage with its principals to receive their political backing for common projects and in order to reaffirm its own centrality in governance. This article identifies different trustee strategies to reduce politicization and thereby to decrease the risk of de facto de-delegation: (i) dualism, (ii) voluntary self-restraint, and (iii) changing the yard stick. It concludes by showing that the ECB has expanded its monetary policy toolbox without triggering neither formal nor de facto de-delegation.     

Foreign Policy and Human Rights Advocacy: An Exercise in Measurement and Explanation

This article addresses three questions: How can we define and measure what constitutes a foreign policy in human rights? How is it possible to explain both the activism of a state and its ideological orientation in the international promotion of human rights? What is the empirical evidence found when we try to answer these questions in intermediate states? Research done on four cases (Argentina, Australia, Brazil and South Africa) suggests a correlation between domestic efforts in the promotion of human rights and international advocacy. It also shows that the greater the power of intermediate states, the greater their activism in human rights. Further, as development grows states show less support for economic, social and cultural rights. Last, the strategic relation with the USA shapes how states vote regarding human rights violators states.