Catalyst or Cause? Legislation and the Demise of Machine Politics in Britain and the United States

In the nineteenth century, British and American parties competed by hiring electoral agents to bribe and treat voters. British parties abruptly abandoned this practice in the 1880s. The conventional explanation is that legislation put an end to agent‐mediated distribution. But this explanation leaves many questions unanswered. Why did the parties use agents for decades, even though they imposed great expense on candidates and were viewed as untrustworthy? And why, after decades of half‐hearted reforms, did the House of Commons pass effective antibribery reforms only in 1883? In our formal model, parties hire agents to solve information problems, but agent‐mediated distribution can be collectively suboptimal. Legislation can serve as a credibility device for shifting to less costly strategies.     

Supranational Fundamental Rights or Primacy of Sovereignty?

This analysis explores in detail various aspects of the possible legal impact of ‘British’ Protocol No 30 (the so‐called opt‐out from the EU Charter of Fundamental Rights). On the basis of a legal appraisal, it concludes that the Protocol is not in any way to be understood as a substantial derogation from the standard of protection of fundamental rights in the EU or as an ‘opt‐out’ from the Charter in a substantial sense. Nevertheless, its significance is definitely not to be underestimated. Its adoption as a source of primary law enshrines a legally binding interpretation of the Charter and, in particular, an interpretation of its horizontal provisions. In Article 1(2) and Article 2, the Protocol in fact confirms that the application of the Charter cannot lead to a change in the existing competencies framework. These provisions are of a declaratory nature and apply to all Member States. In Article 1(1), the Protocol is of a constitutive nature since it rules out an extensive interpretation of what can be considered national legal acts adopted in the implementation of EU law only for those States signed up to the Protocol. This specifically means that if, in the future, as part of the application of the Charter, the Court of Justice of the EU (ECJ) has a tendency to subsume a certain area of national legislation under the ‘implementation of Union law’ outside the field of implementing standards, in the spirit of the Ellinki Radiophonia Tileorassi judgment (and subsequently allow their reviewability with respect to their conformity with the Charter), such action would be admissible only for those Member States that have not acceded to the Protocol. However, the Protocol cannot exclude the continued application of the general principles of law instead of the positively constituted fundamental rights in the Charter by the ECJ.     

Why Does the State Keep Coming Back? Neoliberalism,the State and the Archeon

In this essay I argue that the distinction between neoliberalism and the Westphalian order that is said to precede it (along with populism, authoritarianism and other contemporary phenomenon) are all facets of one and the same phenomenon: archism. Archism is a style of politics based on rule and division. Looking at the work of Derrida, Foucault and Benjamin, I examine the inner workings of archism and how it can be resisted. Above all, I consider the notion of the ‘archeon’; that privileged perch from which the state or law can judge without itself being subject to that judgment. The archeon, I argue is the central node of archism that allows itself to insinuate into any number of myriad forms without appearing to be the same phenomenon. By looking at the way Benjamin subverts the theological origins of the archeon with the idea of a God who abandons the position of judgment, I show a model for how to think differently about archism such that we do not seem eternally fated to choose between the same false dichotomies over and over again.     

National Consensus or Social Anomaly?

The dynamics of mass consciousness in Russia, formed in the wake of the 2014 events in Ukraine and Crimea, testify to the consolidation and radicalization of the popular majority. The national consensus has shaped a high level of public optimism even in the face of deteriorating socioeconomic conditions. However, this process brings to the fore archetypal traits that in many ways run contrary to the modern desire for mass consumption, which in many ways is also contrary to social mobilization. This contradiction will affect the political process, if not in the short- then in the long term, and will significantly affect the sociopolitical situation, making it less stable than in the first decade of the present century.     

National parliaments and the European Union: part of the problem or part of the solution to the democratic deficit in the European constitutional settlement?

European integration is as much an opportunity as a threat to national parliaments. The view that national parliaments have been the main losers in the process is not substantiated by empirical evidence. National parliaments have adapted their structures and procedures to keep pace with the increasing scope of integration. This process has included strengthening the constitutional powers of parliaments in some of the member states. The recognition in the Nice and Laeken declarations that national parliaments have an important role in enhancing the democratic legitimacy of the Union and the key provisions of the draft protocols on the role of national parliaments and subsidiarity adopted by the Convention on the Future of Europe will ensure that national parliaments have the opportunity and the means, if they so choose, to be closely involved in Union affairs. Constitutional change at the Union level is likely to trigger normative and procedural change in the member states.     

The Sovereignty Dispute over the Falklands/Malvinas: What Role for the Un?

Netherlands International Law Review - On 2 April 2012, it was thirty years ago that an armed conflict between Argentina and the UK erupted. The conflict lasted two and a half months and was fought...     

Above the Law? A Comparative Study of National Prosecutions of Heads of State

Official polices on the appropriate government response to crimes committed by a head of state are seldom dictated by strict principles of justice. Deciding whether to bring an errant leader to justice is often influenced by political expediency. Given the number of documented cases of official abuse, there is a need to understand why some governments choose to prosecute a former or sitting head of state while others do not. Yet, few studies have been done on this subject. This study reviews 52 cases of heads of state accused of crimes and explores how their own national governments responded to such accusations. Using data culled from various documentary sources, it employs a grounded theory approach to focus on the process that drives the decision to prosecute. Analysis indicates that political legitimacy, perception of threat, political stability, and degree of politicization of the military influence the decision to prosecute. The article concludes with a discussion of the significance and implications of these findings and suggestions for future research.     

In the National Interest? Political Control and Registration in Norway and Sweden

Dokument nr.15. Rapport til Stortinget fra kommisjonen som ble nedsatt av Stortinget for å granske påstander om ulovlig overvåkning av norske borgere. [Document no. 15. Report to the Norwegian Parliament from the Commission Appointed by Parliament to Examine Allegations of Unlawful Monitoring of Norwegian Citizens]. (The Lund Report). 28 March 1996. (Cit. LR 1996).

Säkerhetstjänstkommissionen. [The Commission of Inquiry into the Security Service]. (Cit. STK).

SOU 2002:87 Rikets säkerhet och den personliga integriteten. Betänkande av säkerhetstjänstkommissionen. [National Security and Personal Integrity. Report from the Commission of Inquiry into the Security Service].

SOU 2002:88 Politisk övervakning och personalkontroll 1945‐1969. Forskarrapport till säkerhetstjänstkommissionen. [Political Monitoring and Background Checks 1945–1969. Research report to the Commission of Inquiry into the Security Service].

SOU 2002:89 Politisk övervakning och personalkontroll 1969–2002. Forskarrapport till säkerhetstjänstkommissionen. [Political Monitoring and Background Checks 1969–2002. Research report to the Commission of Inquiry into the Security Service].

SOU 2002:90 Den farliga fredsrörelsen. Forskarrapport till säkerhetstjänstkommissionen. [The Menacing Peace Movement. Research report to the Commission of Inquiry into the Security Service].

SOU 2002:91 Hotet från vänster. Forskarrapport till säkerhetstjänstkommissionen. [The Threat from the Left. Research report to the Commission of Inquiry into the Security Service].

SOU 2002:92 Det grå brödraskapet—en berättelse om IB. Forskarrapport till säkerhetstjänstkommissionen. [The Grey Brotherhood—A Story of IB. Research report to the Commission of Inquiry into the Security Service].

SOU 2002:93 Övervakningen av SKP‐komplexet. Forskarrapport till säkerhetstjänstkommissionen. [The monitoring of the SKP‐Complex. Research report to the Commission of Inquiry into the Security Service].

SOU 2002:94 Övervakningen av nazister och högerextremister. Forskarrapporter till säkerhetstjänstkommissionen. [The Monitoring of Nazis and Right Wing Extremists. Research reports to the Commission of Inquiry into the Security Service].

SOU 2002:95 Forskarrapporter till Säkerhetstjänstkommissionen. [Research report to the Commission of Inquiry into the Security Service].     

Homosexuality and the African Charter on Human and Peoples' Rights: What Can Be Learned from the History of the European Convention on Human Rights?

Despite differences between the European Convention on Human Rights (ECHR) and the African Charter on Human and Peoples' Rights (ACHPR) in terms of the substantive rights guaranteed and machineries to enforce them, both instruments have been foundational in the establishment of organizations that share a common history of rejecting human rights complaints from homosexuals. Although the contemporary jurisprudence of the European Court of Human Rights (ECtHR) on homosexuality may contrast sharply with that of the African Court on Human and Peoples' Rights (ACtHPR) and the African Commission on Human and Peoples' Rights (ACmHPR) – because the ACtHPR and ACmHPR have never upheld a complaint relating to sexual orientation – the early history of the ECtHR and the former European Commission on Human Rights (ECmHR) mirrors the current African stance. This article explores what those seeking to develop gay and lesbian rights in Africa might usefully learn from the historical evolution of similar rights under the ECHR.     

From IPOA Sharks to Sharks MoU Under the Convention on Migratory Species: Progress or Clutter in International Environmental Law?

Abstract

The conservation and management of sharks is regulated under different international instruments of varying degrees of specificity and with different legal purposes. Two international instruments targeted at the conservation and management of sharks are the International Plan of Action for Sharks and the Sharks Memorandum of Understanding, which was adopted under the Convention on Migratory Species. This article examines and compares these two non-binding instruments, querying not only what was gained from the adoption of an additional non-binding instrument in the Sharks MoU just ten years after the IPOA Sharks but also how the accumulation of soft law instruments may operate within the framework of international environmental law. We show that such instruments do serve different purposes and can serve the ultimate goal of improving the conservation status of sharks, as well as thickening international environmental law to the benefit of species conservation.     

Memory Laws: An Escalation in Minority Exclusion or a Testimony to the Limits of State Power?

The article addresses the tension between nation‐state memory and the law through “memory laws.” In contrast to laws that ban genocide denial or a positive perception of a violent past, I focus on laws that ban a negative perception of a violent past. As I will show, these laws were utilized for a non‐democratic purpose in the last decade or more: They were proposed in order to limit public debate on the national past by banning oppositional or minority views, in contrast to the principles of free speech and deliberative democracy. Their legislation in such cases also stands in opposition to truth‐telling efforts in the international arena. I compare two cases of memory legislation, in contemporary Russia and Israel, and evaluate their different impacts on democratic public debates in practice. A third case of “failed legislation” in France compliments the analysis by demonstrating not only the capacity but also the limitation of state power to silence or control public debate using the law. Although national laws often reflect majority culture and memory, I propose that memory laws in Russia, Israel, and France present an escalating degree of minority exclusion—from omission to active banning.     

DNA analysis and the Freedom of Information Act: information or invasion?

This note explores the possibility of release of an individual's DNA analysis to any person who requests it through the Freedom of Information Act (FOIA), after an individual's post-aircraft accident DNA profile has been developed by the Federal Aviation Administration's (FAA) Civil Aerospace Medical Institute (CAMI). It analyzes whether the request would fall under the FOIA's 552(b)(6) exemption, which weighs a person's privacy interest against any public interest in such information, or if the release would constitute a "clearly unwarranted invasion of personal privacy."     

Reconstructing the hymen: mutilation or restoration?

Female genital mutilation (FGM)--previously known as female circumcision--was criminalised in many countries in the 1990s. This occurred mainly in Western nations and responded to the perception that FGM was intended to subjugate women and was an abuse of human rights. However, other female genital surgical procedures have a totally different intent and are designed to restore the integrity of the hymen, correct deformity or simply enhance the appearance of the female genitalia. Such procedures, unlike FGM, are performed on women who have reached the age of consent and who request the surgery themselves. Restoring the integrity of the hymen (so-called "hymenoplasty") can erase evidence of the sexual history of a woman. "Revirgination" may have particular importance to women contemplating marriage in cultures where a high value is placed on virginity Some commentators have equated hymenoplasty with corrective surgery intended to restore the condition of female circumcision--techniques which are prohibited by most Australian criminal statutes. However, the medical, ethical and human rights arguments against FGM are not easily extended to revirgination and other cosmetic genital surgery. This article examines whether revirgination surgery has effectively been criminalised in Australia and whether this is appropriate from a medical and ethical perspective.