The European Court's political power

The European Court has emerged as one of the most powerful political institutions in the European Union and the most influential international court in existence. National courts are the linchpins of the European legal system, making European Court decisions enforceable and creating an independent power base for the European Court. This article examines why national courts agreed to take on a role enforcing European law supremacy against their own governments and why national politicians did not stop an institutional transformation of the European legal system which greatly compromised national sovereignty. Competition between lower and higher national courts, each trying to enhance their influence and authority vis‐à‐vis each other, explains how national legal interpretive barriers and high‐court ambivalence regarding the European Court's declaration of European Law Supremacy was overcome. Politicians proved unable to reverse national court acceptance of European law supremacy, and institutional rules kept politicians from sanctioning either national courts or the European Court for judicial activism. Legal doctrine became a form of institution‐building, and a mechanism to make international law enforceable was created, giving the European Court the ability to make unpopular decisions and to compel compliance with European law.     

Uneven inclusion: consequences of universal healthcare in Thailand

‘Post-national’ scholars have taken the extension of social rights to migrants that are normally accorded to citizens as evidence of the growing importance of norms of ‘universal personhood’ and the declining importance of the nation-state. However, the distinct approach taken by the state toward another understudied category of non-citizen – stateless people – complicates these theories by demonstrating that the state makes decisions about groups on different bases than theory would suggest. These findings suggest the need to pay more attention to how the state treats other categories of ‘semi-citizens’. This article examines the differential effects of universal healthcare reforms in Thailand on citizens, migrants, and stateless people and explores their ramifications on theories of citizenship and social rights. While the state has expanded its healthcare obligations toward people living within its borders, it has taken a variegated approach toward different groups. Citizens have been extended ‘differentiated but unambiguous rights’. Migrants have been granted ‘conditional rights’ to healthcare coverage, dependent on their status as registered workers who pay mandatory contributions. Large numbers of stateless people, however, saw their right to state welfare programs disenfranchised following passage of the new universal healthcare law before later being granted ‘contingent rights’ through a new program.     

Fundamental Rights: An Unsettling EU Competence

For many years, fundamental rights were primarily protected in the European Union (EU) legal order in a negative way; EU institutions and Member States should not infringe fundamental rights when acting within the scope of EU law. However, since the Treaties of Amsterdam and Lisbon, the EU has gained greater competences to develop fundamental rights standards, and new mechanisms for the protection of these standards have emerged. Although these new instruments enhance the mandate of the EU regarding fundamental rights protection, they also trigger a number of important questions. They are capable of calling into question, to an unprecedented extent, sensitive domestic policy areas through a rights-based process of Europeanization. Furthermore, the EU regime for the protection of fundamental rights is increasingly difficult to contain within the limits of the traditional principle of attributed competences that was initially designed to circumscribe the process of European integration. Both types of questioning trigger significant resistances at the EU as well as national level.     

The European Court of Justice as a Federator

The European Court of Justice is often seen as the motor ofEuropean legal integration because it "constitutionalized "the treaties establishing the European Communities (EC) throughits jurisprudence. In reality though, the Court's role has ratherbeen that of a promotor or provocateur because the member statesand the national courts have been, by and large, cooperativepartners in this process, and many of the political consequencesof the Court's rulings have been hidden in its legal language.The Court will likely be careful in the future about continuingits judicial activism with the same vigor. Since the Treatyon European Union, many politically divisive issues are potentiallyopen to the Court's interpretation. In addition, the cooperativeattitude, by member states and the national courts, is no longerguaranteed.     

(Same)-sex in the city: Urbanisation and LGBTI rights expansion

Despite the notable successes of lesbian, gay, bisexual, transgender and intersex (LGBTI) activism in the region, individual European countries have varied considerably in the extent and speed with which they have adopted legislation to recognise the rights of their LGBTI citizens. Scholars have often turned to modernisation theory to explain these variable outcomes and argue that high levels of national wealth are an important factor in the success of LGBTI movements. Although the correlation between modernity, economic development and tolerance of LGBTI lifestyles is often treated as a truism in the literature, scholars have paid less attention to the precise mechanisms by which the complex processes associated with modernisation facilitate policy change. Drawing on the classic works of both modernisation theory and gay and lesbian history, we examine a less explored route by which modernisation leads to the expansion of LGBTI rights. Specifically, we posit that urbanisation facilitates the adoption of rights policies by strengthening LGBTI movements and enhancing their political effectiveness. To test this proposition, we use event history analysis and an original dataset that contains measures for institutional, cultural, economic and movement variables, as well as measures of urbanisation in 44 European countries between 1980 and 2015. Our findings support the contention that urbanisation has a strong effect on the formation of LGBTI movement organisations as well as the speed with which European states adopt both same-sex union and anti-discrimination legislation. The relationship between urbanisation and rights expansion persists even after controlling for a country's level of wealth, religious adherence and the influence of European institutions and norms.     

Judicial politics in Belgium

The judiciary in Belgium is an independent branch of government and has succeeded in maintaining its independence against many odds. Not being bound by any particular method of inter‐pretion and able to control to a certain extent the machinery of government, the judges have been, whenever needed, cautiously innovative. The public is certainly not hostile, as far as such innovations are concerned. Constitutional law, morals, human rights and particularly economic law have been the areas in which judges have been most willing or compelled to take creative steps. Because these individual decisions are drafted as applications of existing general principles and statutes and largely reflect the prevailing views of society, very little criticism has been voiced about this hidden and cautious legal activism.     

Legitimacy, Authority and the Transfer of Power in Ghana

The problems of authority and legitimacy experienced by post-colonial states are often explained in terms of a 'colonial legacy'. The validity of this hypothesis is examined, in the case of Ghana, by analysing changes in the kinds of legitimacy claimed by the state from the colonial period through decolonization to independence. It is concluded that, whilst the most enduring legacy of colonialism was the attempt to found legitimacy in particularistic, indigenous systems of law, the decolonization process failed to transfer any one of the new, competing claims to legitimacy which emerged. Nationalism, of its very nature, was precluded from claiming authority on the basis of expertise in being European, and was also led to deny the validity of indigenous cultures. Representative democracy too was contradictory in so far as its results often challenged the nationalists' conception of a non-ethnic national identity. Ultimately neither democracy nor 'being African' was a sufficient basis for the legitimacy of the new state.     

The Europeanization of National Administrations: A Comparative Study of France and the Netherlands

Studies of the impact of European integration on the national administrations of the member states of the European Union (EU) have pointed towards an uneven process of "Europeanization." While there has unquestionably been a growing range and frequency of contacts between national administrations and the EU system, there is little evidence of an expected convergence towards a common institutional model. This uneven Europeanization is presently explained with reference to a neo-institutionalist framework, drawing primarily on the work of March and Olsen. It is argued that the politico-administrative systems of the member states differentially adapt to the pressures of European integration in a manner which reflects the preexisting balance of domestic institutionnal structures, as well as th broader matrices of values which define the nature of appropriate political forms in the case of each national polity. Distinctive national patterns of institutional adjustment, rather than appearing anomalous, emerge as corresponding to a basic logic of differentiation indissociable from the integration process itself. The general argument is illustrated by an extended comparative study of France and the Netherlands, examining both the making and the implementation of European policy in the two countries.     

A feminist challenge to the gendered politics of the public/private divide: on due diligence,domestic violence,and citizenship

This article examines the feminist appropriation of the legal principle of due diligence to politicize acts of violence at the hands of private actors within the private sphere. This move expanded traditional notions of state responsibility for violence against women under international human rights law. Using frame analysis, we focus on the institutionalization of this feminist understanding of due diligence through its discursive incorporation in international human rights policy documents and its mobilization in cases of domestic violence litigated within the UN and the Inter-American and European human rights systems. Through this discursive framing work and its institutionalization, feminists have challenged the gendered politics of the public/private divide to change the terms on which differently positioned women can engage with the state and global governance institutions. We argue that this change can potentially reconfigure women's state-bounded and transnational citizenship. The implications of due diligence as a political and sociological concept require more careful consideration by citizenship and human rights scholars.     

Models of citizenship: Defining European identity and citizenship

Citizenship implies membership of a political community and is internally defined by rights, duties, participation, and identity. It has traditionally been subordinate to nationality, which defines the territorial limits of citizenship. In order to theorize forms of citizenship that go beyond the spatial domain of nationality, citizenship must be seen as multilayered, operating on the regional, national and supranational levels. European citizenship as postnational citizenship is compatible with other forms of citizenship and could become an important dimension to the integration of European society in the twenty first century. At the moment, however, the tendency is to define European citizenship in terms of, on the one hand, a formal and derivative citizenship based on rights and which is mostly supplementary to national citizenship and, on the other hand, a European supranationality defined by reference to an exclusivist conception of European cultural identity. This conception of European identity and citizenship neglects other possibilities which European integration offers.     

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.     

Gatekeeper persuasion and issue adoption: Amnesty International and the transnational LGBTQ network

Network theory is a valuable tool for understanding how transnational human rights advocacy emerges and develops; how norms become salient; and how nongovernmental organizations (NGOs) gain prominence within networks. This article evaluates political network theory through the case study of the transnational lesbian, gay, bisexual, transgender, and queer (LGBTQ) advocacy network. Through interviews with key figures at human rights and LGBTQ NGOs, I suggest that the transnational LGBTQ network emerged through contestation with the human rights gatekeeper, Amnesty International, and its US section, AIUSA. This process of contestation would produce a specific type of gatekeeper activism that would become a defining feature of the network. Over time, the network would evolve from a collection of national groups engaging in direct action to a highly professional and international network with a dual focus on movement building in the Global South and the advancement of LGBTQ rights at the United Nations.     

Post‐national citizenship,social exclusion and migrants rights: Mexican seasonal workers in Canada

In the past few decades, migrants residing in many European and North American countries have benefited from nation‐states' extension of legal rights to non‐citizens. This development has prompted many scholars to reflect on the shift from a state‐based to a more individual‐based universal conception of rights and to suggest that national citizenship has been replaced by post‐national citizenship. However, in practice migrants are often deprived of some rights. The article suggests that the ability to claim rights denied to some groups of people depends on their knowledge of the legal framework, communications skills, and support from others. Some groups of migrants are deprived of the knowledge, skills, and support required to negotiate their rights effectively because of their social exclusion from local communities of citizens. The article draws attention to the contradiction in two citizenship principles—one linked to legal rights prescribed by international conventions and inscribed through international agreements and national laws and policies, and the other to membership in a community. Commitment to the second set of principles may negate any achievements made with respect to the first. The article uses Mexican migrants working in Canada as an illustration, arguing that even though certain legal rights have been granted to them, until recently they had been unable to claim them because they were denied social membership in local and national communities. Recent initiatives among local residents and union and human rights activists to include Mexican workers in their communities of citizens in Leamington, Ontario, Canada, are likely to enhance the Mexican workers' ability to claim their rights.     

Normative transformations in the European Union: on hardening and softening law

Abstract

Until the late 1980s, European integration was generally said to be based on ‘integration through law’. However, in the 1990s, a group of scholars observed that law seemed to be increasingly challenged and new modes of governance tended to distance themselves from legal integration. They were confronted with another group arguing that the EU was still subject to processes of judicialisation, juridification and Eurolegalism. Against this background, this special issue aims at understanding what triggers normative transformations, be it the hardening or the softening of law, at both EU and national levels. In this introduction, soft and hard law are given a definition based on obligation and enforcement. Then, normative transformations are situated in a framework which makes a distinction between processes, normative levels and political/administrative levels of transformation. Finally, three types of explanations are suggested to help us understand when and why transformations occur.     

Economic crisis and elections: The European periphery

This paper introduces the articles in the symposium which address the issue of democratic accountability and economic voting in polities on the European periphery. The economic crisis that hit the world economy in 2008 has severely challenged the capacity of governments to steer the national economy and has had a strong impact on their electoral support. The papers discuss whether economic voting and democratic accountability are increasing or, on the other hand, they could be depressed by globalisation and by shifts of ruling competence from the national to the supranational European arena.     

Ministerial gatekeeping and parliamentary involvement in the implementation process of EU directives

According to the literature on parliamentary government, legislatures provide political parties with veto and amendment rights, which counterbalance executive power. This institutional feature is also said to help overcome ministerial “drift” within coalition governments. While this literature has focused on the situation of an unconstrained environment of parliamentary government, the European Union’s Member States continuously delegate policy competencies to Brussels, whose directives must in turn be transposed into national law to take effect. Because the minister in charge enjoys informational advantages and has the sole right to begin the process of implementing directives, he can completely control the agenda in this constrained environment. We evaluate the empirical implications of a ministerial gatekeeping model by investigating the (in)activities of 15 countries with respect to 2,756 EU directives adopted between December 1978 and November 2009. Our findings show that partisan ministerial approval is necessary to start the implementation process which conditions the counterbalancing response of parliaments. Accordingly, the delegation of policy competencies to the European Union changes the power relationship in parliamentary governments and increases the risk of partisan ministerial drift.     

The Place of Human Rights in American Efforts to Expand and Universalize Healthcare

This article explores the very limited cases historically in the twentieth century when human rights was used in American policy debate as a defending principle for the provision of government-guaranteed universal healthcare. It discusses these cases and examines various reasons as to why this is so, noting the major emphasis in American political culture on negative rather than positive liberty. It examines the shift in political culture from the Roosevelt, Truman, and Johnson eras that embraced social and economic rights and defined them as such to the post-Reagan era when conservative ideologies were ascendant. These ideologies reject the legitimacy of social and economic rights and remain dominant in the United States. It comparatively situates the American refusal to consider universal healthcare a human right with European affirmations of such a right and to those found in various treaties of international law. Finally, it analyzes how Barack Obama’s Patient Protection and Affordable Care Act—while not adopting the rhetoric of human rights does, functionally, enable as a matter of public policy an entitlement to healthcare.     

Globalization and legal change: The “Americanization” of European law?

Intensified global economic competition, economic liberalization, and the rise of EU governance have led some observers to argue that there has been a trend toward the “Americanization” of the European “way of law.” This article addresses that contention, focusing on legal change in European member states. It first describes ways in which the American legal tradition has differed most sharply from the national legal systems of Western Europe (including Great Britain) and the political and economic factors that account for this “American legal distinctiveness.” Similar political and economic factors currently are at work in Europe, the article acknowledges, creating incentives for legal convergence. But it also argues that European legal culture and the political organization of European national states generate path‐dependent forces that impede European movement toward American ways of law, and it discusses six important differences between European and American law that remain entrenched and are unlikely to disappear.     

Judicial Europeanisation: The Case of Zambrano in Ireland

The Court of Justice of the European Union is an important motor of integration and is said to be particularly strong in those cases where the Council shows an inability to act. What is the relevance of the Court to social Europe? Europeanisation studies analyse how member states change due to European integration. Judicial Europeanisation is a topic that is under-explored in the literature. Using a case-study approach, this paper analyses the Zambrano case, one of the most notable recent cases of judicial activism of the CJEU with regard to EU citizenship rights. Although the literature often assumes that member states only reluctantly embrace the requirements of case law, the Irish government immediately obliged its administration to implement the required changes. Analysing this case in greater detail and comparing it to the responses of several other member states promises to shed some light on the under-explored question of how Europeanisation through case law proceeds, and what the Court may contribute to social Europe.     

A multilevel puzzle: Migrants’ voting rights in national and local elections

How does international migration impact the composition of the demos? Constitutional doctrines and democratic theories suggest contrasting responses: an insular one excludes both non‐citizen immigrants and citizen‐emigrants; a deterritorialised one includes all citizens wherever they reside; a postnational one includes all residents and only these. This article argues that none of these predicted responses represents the dominant pattern of democratic adaptation, which is instead a level‐specific expansion of the national franchise to include non‐resident citizens and of the local franchise to include non‐citizen residents. This is demonstrated by analysing an original dataset on voting rights in 31 European and 22 American countries, and outlining a level‐sensitive normative theory of citizenship that provides support for this pattern as well as a critical benchmark for current franchise policies. The findings can be summarised in two inductive generalisations: (1) Voting rights today no longer depend on residence at the national level and on citizenship of the respective state at the local level; (2) Voting rights do, however, generally depend on citizenship of the respective state at the national level and on residence at the local level. In the article, these are called the patterns of franchise ‘expansion’ and ‘containment’. The former supports the idea of widespread level‐specific expansion of the franchise and refutes the insular view of the demos. The latter signals corresponding level‐specific restrictions, which defeats over‐generalised versions of deterritorialised or postnational conceptions of the demos. In order to test how robust this finding is, cases are analysed where the dominant patterns of expansion have been resisted and where unexpected expansion has occurred. With regard to the former, the article identifies constitutional and political obstacles to voting rights expansion in particular countries. With regard to the latter, the article shows that even where national voting rights have been extended to non‐citizen residents, containment remains strong through indirect links to citizenship.