Development law: Squaring the circle, advancing human rights in Africa

Development law is an ethos-driven law reform paradigm that examines conditions from within the country and provides a frame of reference in which to evaluate the legal regime in the political, economic, social and cultural context. Moreover, development law provides a fresh approach to assessing existing national laws effectiveness generally; it assesses whether modifications are required to promote economic, political, and social progress, including protecting the rights of minority ethnic groups and disenfranchised peoples. By protecting rights, law can be an instrument of social development and will not be alien to large segments of the population. Development law as a paradigm is the result of decision making within the country after careful examination by trained professionals whose sole interest is political, economical, social, cultural and national development. The enactment of laws and integration of customary norms that are embraced by the ruling authority, political elites, and other stake holders will best advance human rights. I thank Professor Mary Wright for reviewing and providing helpful comments on a previous draft of this article.     

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     

Getting Their Way: Bias and Deference to Trial Courts

How much do trial judges influence the law in the United States? I analyze a model of adjudication by a trial judge who engages in fact finding before deciding a case, but whose decision may be reversed. The model makes three broad points. First, it provides an informational rationale for ex post deference to biased trial judges that does not require an ex ante commitment by an appellate court to a standard of review. Second, it shows how procedural discretion can bring biased trial judges' rulings closer to appellate doctrine despite enabling trial judges to “get their way” more often. Third, de facto law as represented by trial judges' case‐by‐case adjudication will differ substantially from de jure law. As long as there are not too many extremist trial judges, de facto law will reflect the predispositions of trial judges, not legal doctrine.     

Politics and Power in the European Convention

The Convention on the future of the European Union has been heralded by many as a unique political setting. So far the process of EU Treaty change was subject to the collision of national political interests in Intergovernmental Conferences. By contrast, the Convention appears to promise a fundamentally open and normatively informed arena. This article probes the validity of this promise by dissecting the political dynamics of the Convention along three dimensions: political behaviour and alliance formation; agenda management; and the norms informing its proceedings.     

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.     

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.     

“Europäisierung” der Bundesstaatsreform? Zur Übertragung des EU-Konventsmodells in Deutschland und Österreich

While the European Convention was working on the Draft Treaty, similar bodies for reforming the national state organisation were installed in Germany and Austria. The paper analyses this new form of “Europeanisation” by answering two questions: Why was the Convention considered an attractive model only in these member states of the European Union? And how can obvious differences between the relevant reform procedures be explained? Challenging the well-known thesis that a “misfit” between the national and EU levels poses a necessary condition for “Europeanisation”, it is argued that the isomorphic contexts of the EU and Germany as well as Austria explain the domestic attractiveness of the Convention model; the different ways of its translation are caused by case-specific factors.     

The politics of judicial discretion: Rethinking the interaction between national courts and the Eurpean court of justice

The recognition that courts play a significant role in the process of European integration has focused attention on the interaction between national judges and the European Court of Justice. The prevailing theoretical model of this interaction holds that a variety of incentives impel national judges to co‐operate with the ECJ by providing it with frequent preliminary references. This article tests the ability of the model to account for the behaviour of national courts during the period 1972–94. In assessing the utility of the model two central claims are made. First, that the model as currently constructed is incapable of explaining the patterns of references originating from various member states, particularly the consistent lack of references from British courts. Second, that the level of British references, and patterns of judicial co‐operation in general, can be better understood by questioning the model's core assumption ‐ that national judges face powerful incentives to refer to the ECJ. As a first step in this direction, the article examines how the discretion to make or withhold references bestows on national judges the power to hasten or retard the pace of integration as well as to influence specific policy outcomes.     

National Human Rights Institutions: Domestic implementation of international human rights law

Does adopting a National Human Rights Institution (NHRI) make states’ international commitments to not torture more constraining? Many researchers have explored international human rights treaties’ abilities to constrain leaders from violating human rights, some focusing exclusively on the United Nations Convention Against Torture (CAT). Thus far, findings are not promising unless certain domestic conditions apply such as sufficient democratic space to air grievances or independent judiciaries. This article continues to explore domestic conditions by focusing on another liberal institution—National Human Rights Institutions (NHRIs). Torture is usually a secretive practice, and NHRIs act as information providers to potential mobilizers and domestic legal systems assuring international legal commitments are not empty promises. Using statistical analysis on 153 countries over the years 1981–2007, I find that when a country has ratified the CAT, the presence of an NHRI substantively decreases the chances the state will be an egregious offender.     

Providing justice and reconciliation: The criminal tribunals for Sierra Leone and Cambodia

The Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers for Cambodia (ECC) represent a departure from the model established by the International Criminal Tribunal for the former Yygoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The SCSL and the ECC have often been referred to as “mixed” or “hybrid” tribunals in which there are significant domestic and international components. The tribunals include a combination of domestic and international judges, utilize domestic and international laws and are administered by a prosecutorial team composed of domestic and international lawyers. Many of these institutional changes have been brought about because of criticisms of the ICTY and the ICTR. The fundamental question of this article is whether these mixed tribunals are a more effective mechanism for providing justice and reconciliation than purely international solutions. This is an important question because both the international community and states are moving in the direction of mixed tribunals.     

Magnetic law: Designing environmental enforcement laws to encourage us to go further

The European Union has some of the world's most ambitious and highly developed environmental laws on its books, but their effectiveness is severely compromised by non-compliance. With the UNECE Aarhus Convention (1998), Europe launched an innovative legal experiment, democratizing environmental enforcement by conferring third party citizens and environmental non-governmental organizations (ENGOs) with legal rights of access to environmental information, public participation, and access to justice in environmental matters. Based on some 2000 surveys and over 150 interviews with stakeholders from three Member States – France, Ireland, and the Netherlands – we adopt a holistic, 360° perspective, capturing the views of regulated parties, NGOs, and the general public on this private governance experiment. Our data provide important new insights into the practical effectiveness of Europe's laws enabling private environmental enforcement, its (intended and unintended) effects on farmers' compliance decisions in the vital area of nature conservation, and how law might be used to stimulate pro-environmental predispositions.     

From corporatism to lawyocracy? On liberalization and juridification

In 1997 Robert Kagan questioned whether European countries had to fear the coming of American style adversarial legalism. He answered this question with a qualified “no.” Today we are no longer so sure the answer is “no,” even in a country that Kagan considered the antipole of US adversarial legalism, the Netherlands, traditionally characterized by informal and consensual conflict resolution. In the present article we chart a trend of increasing juridification and legalism, that is, more formal and legal conflict resolution, in the Netherlands between 1970 and 2008. The trend is related to major changes in economic governance institutions, which generated a shift from corporatism toward lawyocracy; from power of the associations of civil society toward power of courts, lawyers, and judges. Yet the newly dominant system of governance is modified and merged with elements of the old system, producing a specific Dutch version, which one could call “corporatist lawyocracy.” We identify two types of liberalization as major driving forces: social liberalization in the 1970s and 1980s, followed by economic liberalization in the subsequent decades. If one considers economic liberalization a product of neoliberal “Reaganomics,” the legal changes are in a way an “American export product,” although a different one than the lawyering styles of large international American law firms mentioned by Kelemen and Sibbitt in 2004.     

Constitutional Review and the Selective Promotion of Case Results

A significant majority of the world's constitutional courts publicize their decisions through direct contact with the national media. This interest in public information is puzzling in so far as constitutional judges are not directly accountable to voters. I argue that the promotion of case results is consistent with a theory of judicial behavior in which public support for courts can undermine incentives for insincere decision making. In this article, I develop a simple game theory model that identifies how case promotion is linked to judicial choice. Results of a simultaneous equations model estimating the Mexican Supreme Court's merits decisions and its choices to publicize those decisions by issuing press releases to national media outlets support an account of constitutional review in which judges believe they can influence their authority through case promotion.     

The use of EU soft law by national courts and bureaucrats: how relation to hard law and policy maturity matter

Abstract

Soft law instruments account for a sizable share of EU legal acts, with growing importance over time. Yet, while the implementation of hard EU law has been widely studied, little is known about the use of EU soft law at the national level. In the article, it is firstly argued that the type of soft law instrument will affect national usage. Administrators and judges may welcome interpretative guidelines to complicated pieces of legislation, while more open-ended instruments may be ignored. It is further argued that the maturity of the policy field matters. National actors in mature policy fields will be routinely exposed to EU rules and they are socialized into responding to impulses from Brussels. The article probes the plausibility of these expectations in case studies on the use of EU soft law instruments by German administrations and courts in four policy fields: financial market regulation, competition, environmental protection and social policy.     

State legislation on smoking and health: A comparison of two policies

The two principal smoking-related state legislative activities stand in sharp contrast to one another. Cigarette excise taxation diffused among the states well before the connection between smoking and illness became a public issue, yet more recent tax increases appear to reflect a response to the national anti-smoking campaign. The growing disparity in cigarette prices between tobacco and other states has created a lucrative market in bootlegged cigarettes and has thereby brought new taxation to a virtual standstill for six years. Laws restricting smoking in public places represent a phenomenon of the 1970's clearly bearing the imprint of the anti-smoking campaign. From 1972 through 1978, the number of states with such laws in effect grew from 5 to 36, and the restrictiveness of the laws also increased. The dramatic correlation between diffusion of the laws and decreases in cigarette consumption rates seems best interpreted as each of these reflecting changes in social attitudes toward smoking.     

Performing the Nation: Contesting Same-Sex Marriage Rights in the United States

Public opinion polls, Supreme Court decisions, and changes in federal and state law suggest that the United States is witnessing a support for lesbian, gay, bisexual, and transgender (LGBT) rights today that few would have predicted five years ago. This article offers a critical assessment of that growth as it is manifest in the context of marriage equality. It shows that efforts to advance same-sex marriage rights, while offering an important challenge to oppositional arguments, actually rely on norms quite similar to those of marriage equality opponents. Both advocates and opponents envision and enact the kind of citizenship appropriate to national health and identity in surprisingly similar ways. Both reinforce a set of norms, laws, and practices that make the right to marriage almost synonymous with family and responsible parenting. Such a consolidation of repronormativity may have troubling consequences for efforts to advance LGBT rights at home and abroad.     

International Power and Local Action – Implications for the Intersectionality of the Rights of Women with Disability

The recent United Nations Convention on the Rights of Persons with Disabilities (CRPD) reframes how policy responds to disability, difference, interdependence and rights. We examine how Australian disability activists used the CRPD to advocate for the intersectional rights of women with disability. We applied a framework from Zwingel's conceptualisation of mutually constituting global norms to analyse the intersectionality of rights represented in three stages of the CRPD process – during the drafting, the wording in the Convention, and the periodic review. We found that disability activists were able to shape the gendering of disability through their targeted representation as people with lived experience. This expertise filled a knowledge gap in the policy process valued by the actors at other policy levels. Extending Zwingel's concept of global discourse translation, it also suggests that the dynamic contribution continues in the international interpretation of the CRPD itself.     

国际法中的时际法规则

国际法中的时际法遵循法律无溯及力原则,即处理国际法中的时际法应遵循"法律事实应以与之同时的法律判断原则";但在具体适用该原则时,应该对权利产生时的法律和权利存续时的法律这两者之间做出区分,产生一个权利的行为受该权利产生时所适用的法律支配;按照同一原则,权利的存在,应当依循法律的演进所要求的一些条件。在争端解决时应以关键日期时的国际法和事实为依据。     

Signaling and Counter‐Signaling in the Judicial Hierarchy: An Empirical Analysis of En Banc Review

We leverage the institutional features of American courts to evaluate the importance of whistleblowers in hierarchical oversight. Drawing on a formal theory of signaling in the judicial hierarchy, we examine the role of whistleblowing dissents in triggering en banc review of three‐judge panels by full circuits of the Courts of Appeals. The theory generates predictions about how dissent interacts with judicial preferences to influence circuits' review and reversal decisions, which we test using original and existing data. First, we show that judges who dissent counter to their preferences are more likely to see their dissents lead to review and reversal. Second, we show that dissents are most influential when the likelihood of non‐compliance by a three‐judge panel is highest. Our results underscore the importance of dissent in the judicial hierarchy and illustrate how judicial whistleblowers can help appellate courts target the most important cases for review.     

Accountability and Coercion: Is Justice Blind when It Runs for Office?

Through their power to sentence, trial judges exercise enormous authority in the criminal justice system. In 39 American states, these judges stand periodically for reelection. Do elections degrade their impartiality? We develop a dynamic theory of sentencing and electoral control. Judges discount the future value of retaining office relative to implementing preferred sentences. Voters are largely uninformed about judicial behavior, so even the outcome of a single publicized case can be decisive in their evaluations. Further, voters are more likely to perceive instances of underpunishment than overpunishment. Our theory predicts that elected judges will consequently become more punitive as standing for reelection approaches. Using sentencing data from 22,095 Pennsylvania criminal cases in the 1990s, we find strong evidence for this effect. Additional tests confirm the validity of our theory over alternatives. For the cases we examine, we attribute at least 1,818 to 2,705 years of incarceration to the electoral dynamic.