Seeking Life, Finding Justice: Russian NGO litigation and Chechen Disappearances before the European Court of Human Rights

This article presents findings from an interview study of human rights practitioners who assist relatives of the disappeared from Chechnya with their complaints before the European Court of Human Rights (ECtHR). These practitioners work for nongovernmental organizations (NGOs). The study contributes to the scant literature on NGO litigation before the ECtHR and to the social scientific literature on how human rights are actively practiced. It investigates the NGOs?? intermediary position between the ECtHR and the relatives of the disappeared in Chechnya. Consequently, this article asserts that a significant aspect of this position lies in the practitioner??s capacity to mediate between an ambition to externalize local grievances to the ECtHR and the relatives?? hopes that the ECtHR can bring certainty to the uncertain loss of their disappeared relatives. From this position, several dilemmas emerge as to how international legal mechanisms can provide remedies following disappearances.     

Security,Flexible Sovereignty,and the Perils of Multiple Citizenship

In this paper we unpack the concept of dual citizenship in relation to the meaning of sovereignty claims in situations of political exception. We take up two contending analytical frameworks to examine dual citizenship. The first framework examines dual citizenship as a human right, and makes liberal legal arguments about the increased rights and privileges afforded to dual citizens. The second framework, which we develop here, examines dual citizenship as a form of hierarchical citizenship, whose genealogy owes substantially to orientalist mythologies, and whose technologies of governance work through securitized state policies and practices of flexible sovereignty. As a form of hierarchical citizenship, dual nationality produces hyphenated citizenships that exist on a transnational plane, yet are always rooted in relations among particular nation-states. Some of the recent cases of extraordinary rendition, detention, and torture of dual national men of Muslim and Arab background will be discussed to illuminate the securitization and racialization of diplomatic protection. While citizenship is not a standard set of rights available to all, the cases we examine reveal that dual citizens with “dangerous” nationalities caught up within the post-9/11 security paradigm may find themselves as unprotected persons, existing in a vacuum devoid of diplomatic protection, human and citizenship rights.     

Implementing International Human Rights Law at Home: Domestic Politics and the European Court of Human Rights

The European Court of Human Rights (ECtHR) boasts one of the strongest oversight systems in international human rights law, but implementing the ECtHR??s rulings is an inherently domestic and political process. This article begins to bridge the gap between the Court in Strasbourg and the domestic process of implementing the Court??s rulings by looking at the domestic institutions and politics that surround the execution of the ECtHR??s judgments. Using case studies from the UK and Russia, this article identifies two factors that are critical for the domestic implementation of the Court??s rulings: strong domestic, democratic institutions dedicated to implementing the ECtHR??s judgments and an overarching sense of responsibility to set a good example at home and abroad for respecting human rights and the rule of law. This article concludes with a discussion of the steps necessary to facilitate better implementation of the ECtHR??s rulings.     

Prosecution of grave violations of human rights in light of challenges of national courts and the intenational criminal court: The congolese dilemma

The war in the DRC has resulted in one of the world’s worst humanitarian crisis with over 3.4 million displaced persons scattered throughout the country. An estimated 4 million people have died as a result of the war. The most pressing need to be addressed is the question of justice and accountability for these human rights atrocities in order to achieve a durable peace in the country and also in the Great Lakes region. It is particularly true in post-conflict situations where justice systems have been either partially or completely destroyed, that national courts are not capable of arriving at a uniform stance, or willing to provide justice for atrocities in the immediate future. As a result, international justice seems to be a crucial and last resort that must continue to be fortified against efforts to undermine it. However, even if the ICC achieves its full potential, it faces a number of challenges. Firstly, it is realistically not able to address all situations in which national courts are unwilling or unable to prosecute perpetrators. Secondly, there are temporal and other jurisdictional limitations on what cases the ICC can hear. Accordingly, the ICC will only have the power to try people accused of the gravest human rights violations committed after 1 July 2002; the date the Rome Statute which established the ICC took effect. As a result, only a small number of individuals responsible for the atrocities committed will be tried by this Court. Thirdly, is the establishment, of the Truth and Reconciliation Commission (TRC), one of the civilian institutions that emerged from the peace talks, meant to end impunity or to cover up gross violations of human rights committed in the DRC? It remains to be seen how it will function and interact with the courts.     

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.     

The role of prosecutorial independence and prosecutorial accountability in domestic human rights trials

A prosecutorial organ is always in charge of the investigation and prosecution of crime, which makes this institution a key gatekeeper to the courts. Empowered with prosecutorial discretion, a prosecutorial organ dictates what, when, and whom to prosecute. The institutional design of the prosecutorial organ varies across time and across countries, which raises an important, yet quite understudied question: Does institutional design matter for how states respond to human rights violations and, if so, how? In this article, I develop a theoretical framework that highlights the importance of prosecutorial independence and prosecutorial accountability. I argue that understanding the factors that impact the use of prosecutorial discretion in human rights cases can potentially provide a more complete understanding of why and when states fail to investigate, to prosecute, and to punish human rights violations committed by state agents.     

National Constitutional Courts,the Court of Justice and the Protection of Fundamental Rights in a Post-Charter Landscape

This article critically evaluates the possible impact of the Charter on the relationship between the Court of Justice of the European Union (CJEU) and national constitutional courts. While it is premature to provide a definitive assessment of the kind of collaboration that these courts will develop, it is crucial to identify a number of features of the new landscape that will influence the direction in which the relationship between the CJEU and constitutional courts will evolve. This article discusses several reasons that may result in better or a higher number of judicial interactions, as well as factors that may create tension or cause problems in the relationship between the CJEU and national constitutional courts. As such, it offers a framework that may help us to understand future post-Charter judgments by these courts setting out how they conceive their engagement with their counterpart(s) on fundamental rights issues.     

Defending the European court of human rights: Experimental evidence from Britain

As nationalist sentiments gain traction globally, the attitudinal and institutional foundations of the international liberal order face new challenges. One manifestation of this trend is the growing backlash against international courts. Defenders of the liberal order struggle to articulate compelling reasons for why states, and their citizens, should continue delegating authority to international institutions. This article probes the effectiveness of arguments that emphasise the appropriateness and benefits of cooperation in containing preferences for backlash among the mass public. We rely on IR theories that explain why elites create international institutions to derive three sets of arguments that could be deployed to boost support for international courts. We then use experimental methods to test their impact on support for backlash against the European Court of Human Rights in Britain (ECtHR). First, in line with principal-agent models of delegation, we find that information about the court's reliability as an ‘agent’ boosts support for the ECtHR, but less so information that signals Britain's status as a principal. Second, in line with constructivist approaches, associating support for the court with the position of an in-group state like Denmark, and opposition with an out-group state like Russia, also elicits more positive attitudes. This finding points to the importance of ‘blame by association’ and cues of in/out-group identity in building support for cooperation. The effect is stronger when we increase social pressure by providing information about social attitudes towards Denmark and Russia in Britain, where the public overwhelmingly trusts the Danes and distrusts the Russians. Finally, in contrast to Liberal explanations for the creation of the ECtHR, the study finds no evidence that highlighting the court's mission to promote democracy and international peace contains backlash. We show that the positive effects of the first two arguments are not driven by pre-treatment attitudes such as political sophistication, patriotism, internationalism, institutional trust or political preferences.     

Judicial Use of Foreign Law in Human Rights Cases: Illegitimate and Unacceptable Practice?

The use of foreign law by national courts when deciding cases that concern fundamental rights has provoked a debate on the legitimacy of the judiciary to resort to this practice. Indeed, many arguments have been made by legal scholars to support the proposition that judges should not take account of unincorporated international human rights instruments or the decisions of foreign courts when they decide cases that concern fundamental rights. This article puts these arguments to scrutiny, and discusses whether this judicial practice should be resorted to.     

The law and politics of transnational rights protection: Trusteeship,effectiveness, de-delegation

International trustee courts embody a specific form of delegation, in which state principals confer on such courts the authority to interpret and apply treaties agreed by the states in order to realize specific values and interests. Human rights courts help states resolve commitment and enforcement problems that are inherent in human rights treaties. This study seeks to answer the question, what happens when states parties seek to reduce or eliminate the authority of a human rights court? To answer these questions, the article assesses six human rights treaty regimes: the Council of Europe; the Organization of American States; the African Union; the Economic Community of West African States; the East African Community; and the Southern African Development Community. The article identifies four types of de-delegation possible with respect to international human rights courts and assesses the extent to which states have sought to de-delegate from them. With one exception (the SADC Tribunal), the regimes examined here have so far successfully withstood the challenge of de-delegation.     

Security Sector Reform and Transitional Justice in Kosovo: Comparing the Kosovo Security Force and Police Reform Processes

Abstract

Transitional justice and security sector reform are critical in post-conflict settings, particularly regarding the reform of judicial systems, intelligence services, police, correctional systems, the military, and addressing systemic massive human rights abuses committed by individuals representing these institutions. Accordingly, the relationship between security sector reform and transitional justice mechanisms, such as vetting, the representation of ethnic minorities in key institutions, the resettlement and reintegration of the former combatants deserve special attention from scholars. This article presents a comparative analysis of the reform of police and security forces in Kosovo, and explores the causes of different outcomes of these two processes.     

Norm Proxy War and Resistance Through Outsourcing: The Dynamics of Transnational Human Rights Contestation

A great deal of constructivist international relations research on norms focuses on the diffusion of liberal human rights values. In contrast, this article analyzes how critics seek to undermine human rights principles in contexts where human rights norms are increasingly hegemonic. It argues that when norm challengers are frustrated by the institutionalization of human rights, they engage in transnational strategies to pursue their agendas. In norm proxy war, actors patronize surrogates in locales where norms are weak in the hope that victories abroad will reverberate internationally and at home. This dynamic is illustrated by American evangelical sponsorship of political homophobia in Uganda, culminating in that country’s draconian anti-LGBT legislation. When norms are resisted through outsourcing, actors contract out human rights violations in an effort to erode norms through practice, as evidenced by patterns of extraterritorial detention and extraordinary rendition to torture in the post-9/11 “Global War on Terror.” Identifying these patterns broadens understanding of potential pathways of norm contestation.     

“The Long and Winding Road”: A Comparative Policy Analysis of Multilevel Judicial Implementation of Work‒Life Balance in Spain

ABSTRACT

This article studies how processes of policy implementation and the impact of a multilevel European legal order shape social policies. By using an interdisciplinary approach to comparative policy analysis that investigates policy implementation through the critical study of judicial litigation, the article analyses the case of García Mateos on work?life balance in its different stages before Spanish and supranational courts. It shows that the implementation of work?life balance policy through litigation in Spain is a “long and winding road” paved with discursive and material opportunities and obstacles. While multiple pressures, actors, and framings at different governmental levels contributed to a favourable judicial decision on gender equality, norms about the gendered division of labour limited its transformative potential.     

Civil Rights and Social Welfare: Some Thoughts on the Contemporary Relevance of T. H. Marshall

This article draws on T H Marshall's celebrated classification of civil, political and social rights to examine the use of the courts by individuals seeking to establish rights to particular forms or models of welfare service provision. It argues that tensions between the collective and individual aspects of social rights, the relationship of social rights to inequality, and the difficulty of quantifying (and therefore enforcing) legitimate expectations, all make the use of litigation to establish social rights intensely problematic. Drawing on the recent UK Supreme Court case of R (on the Application of McDonald) v Royal Borough of Kensington and Chelsea, it goes on to suggest that it is unhelpful to think of social rights in terms of human rights: instead, we would do better to adopt Marshall's emphasis on the citizenship basis of social rights and on the social and political context within which they necessarily exist.     

Friends of the Court? Why EU governments file observations before the Court of Justice

The preliminary reference procedure under which the Court of Justice of the European Union (CJEU) responds to questions from national courts regarding the interpretation of EU law is a key mechanism in many accounts of the development of European integration and law. While the significance of the procedure has been broadly acknowledged, one aspect has been largely omitted: The opportunity for member state governments to submit their views (‘observations’) to the Court in ongoing cases. Previous research has shown that these observations matter for the Court's decisions, and thus that they are likely to have a significant impact on the course of European integration. Still, little is known about when and why member states decide to engage in the preliminary reference procedure by submitting observations. This article shows that there is significant variation, both between cases and between member states, in the number of observations filed. A theoretical argument is developed to explain this variation. Most importantly, a distinction is made between legal and political reasons for governments to get involved in the preliminary reference cases, and it is argued that both types of factors should be relevant. By matching empirical data from inter‐governmental negotiations on legislative acts in the Council of the EU with member states’ subsequent participation in the Court procedures, a research design is developed to test these arguments. It is found that the decision to submit observations can be tied both to concerns with the doctrinal development of EU law and to more immediate political preferences. The conclusion is that the legal (the CJEU) and political (the Council) arenas of the EU system are more interconnected than some of the previous literature would lead us to believe.     

NEW FEDERALISM, OLD REMEDIES, AND CORRECTIONS POLICYMAKING

Corrections litigation is changing, but new case law does not authorize a wholesale cutback of prisoner constitutional rights. Supreme Court cases urge a return to traditional compensatory damages as the remedy for unconstitutional acts and conditions. Monitoring of state correctional performance by federal courts is disfavored. The author believes that basic rights of prisoners will remain protected, but that systematic planning and exemplary programs will erode. Under the money damages model, legal reform should thus urge waiver of the state sovereign immunity provided by the Eleventh Amendment.     

Judicial policy‐making and the evolving rotection of human rights: The European court of human rights in comparative perspective

This contribution is a comparative analysis of three attempts to strengthen the supranational protection of human rights in an increasingly transnational world. It focuses on the Human Rights Committee of the United Nations, the European Court of Human Rights and the Inter‐American Court of Human Rights. The recent decision by the Inter‐American Court on the forced disappearance of individuals by state or para‐state forces illustrates the important role of cross‐pollenisation from the European Court and the United Nations. It further demonstrates how judges on supranational courts attempt to make law in the face of uncertain government compliance.     

Recovering from statelessness: Resettled Bhutanese-Nepali and Karen refugees reflect on the lack of legal nationality

The very notion of international human rights relies on state governments to serve as the legal “duty bearers” for protecting rights, yet governments are often responsible for creating the conditions that necessitate mass displacement. For some refugees, the lack of legal nationality creates an added dimension of vulnerability that exacerbates suffering. In order to illustrate the human rights challenges inherent to statelessness, this article focuses on the lived experiences of 30 formerly stateless refugees who have been resettled to the United States. Qualitative research interviews with 15 Bhutanese-Nepalis and 15 members of the Karen ethnic minority (from Burma and Thailand), all currently resettled in the United States, provide insights into the everyday realities of stateless individuals. In both cases, statelessness represented a human rights violation in itself as well as a contributing factor for further abuses related to recognition and membership, denied education, and serious impediments to employment and livelihoods.     

The Four Horsemen of the Apocalypse: Understanding Human Security

Since the end of the Cold War, security studies have broadened to take into account a wide range of non‐military threats ranging from poverty to environmental concerns rather than just national defence. Security scholars, backed by international organizations and a growing number of national governments, have developed the concept of ‘human security’, focusing on the welfare of ordinary people against a broad range of threats. This has aroused vigorous debate. The first part of this article proposes an analytical model of human security. The second part argues that it is important to measure how ordinary people perceive risks, moving beyond state‐centric notions of human security. New evidence is examined that draws upon survey items specially designed to monitor perceptions of human security, included for the first time in the sixth wave of the World Values Survey (WVS), with fieldwork conducted in 2010–12. The third part demonstrates that people distinguish three dimensions – national, community and personal security – and then explores some structural determinants driving these perceptions. The fourth part discusses why perceptions of human security matter, particularly for explaining cultural values and value change around the world. The conclusion argues that the shift from a narrow focus on military security toward the broader concept of human security is a natural response to the changing challenges facing developed societies, in which the cost‐benefit ratio concerning war has become negative and cultural changes have made war less acceptable. In this setting, valid measures of perceptions of human security have become essential, both to understand the determinants of the concept among ordinary people and to analyze their consequences.     

Regulating Assisted Reproduction in Canada,Switzerland, and the USA: Comparing the Judicialization of Policy-Making

This article analyses the extent to which courts shape policies for assisted reproduction. While the USA is considered to be the most litigious country, Canada has observed a growing involvement of the courts from the 1980s onward, and Switzerland is characterized by a modest degree of judicialization. Based on national patterns, we would expect litigation and court impact to vary across these three countries. As the empirical analysis reveals, policy-process-specific variables such as the novelty of regulation, self-regulation by key stakeholders, and the policies in place better explain the variation in the judicialization of policy-making.