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Begin New Search Topic Rule of Law Content Type Journal Article

1. Examining the Gap Between EU Fundamental Values in Theory and Practice: A Case Study of Macedonia’s Journey Toward EU Accession

Author:
Larisa Vasileska
Publication Date:
04-2024
Content Type:
Journal Article
Journal:
Journal of Liberty and International Affairs
Institution:
Institute for Research and European Studies (IRES)
Abstract:
The objective of this paper is to assess the gap between the EU’s commitment to its values and the fairness of its accession process, in particular the Macedonian journey to the EU, which is not only contradictory to the EU’s core values but also contradictory to the principle of equal rights and self-determination. For this purpose, the methodology consists of conducting qualitative analysis based on two bilateral agreements and analyzing the evolution of EU requirements and their implications. The paper argues that rather than enforcing the Copenhagen criteria and making the country’s pre-accession progress contingent on the strengthening of the rule of law, the EU has expended enormous effort in what was essentially a political bilateral dispute between states, with the resolution of the dispute to be replaced as a pre-accession criterion. The paper concludes that the EU should return to its fundamental values and prioritize merit-based criteria in the enlargement process, not a politically based decision.
Topic:
International Law, Bilateral Relations, European Union, Rule of Law, Values, Disputes, and Enlargement
Political Geography:
Europe and Macedonia

2. Implications of Article 23 Legislation on the Future of Hong Kong

Author:
Eric Y. H. Lai
Publication Date:
03-2024
Content Type:
Journal Article
Journal:
China Brief
Institution:
The Jamestown Foundation
Abstract:
Hong Kong’s Article 23 legislation will integrate the PRC’s national security framework into Hong Kong’s legal system, impacting the city’s rule of law and foreign business interests. Broad and vague definitions of national security will create challenges for Hong Kong’s common law system. It will likely contribute to the erosion of legal certainty and judicial independence. Proposed offenses such as “theft of state secrets” and “espionage” are ambiguously defined, creating uncertainty. This may cause issues for foreign businesses collecting information for due diligence and will further chill freedom of expression in the city. The legislation aims to isolate Hong Kong further from the liberal democratic world, granting extensive powers to the government for political control and undermining public oversight and due process rights.
Topic:
National Security, Rule of Law, Legislation, and Due Process
Political Geography:
China, Asia, and Hong Kong

3. Panel Causality Analysis of the Relationship among the Rule of Law, Technological Advances, Competitiveness, and Value-Added

Author:
Doğan Keşap and Ali Rıza Sandalcılar
Publication Date:
01-2024
Content Type:
Journal Article
Journal:
Istanbul Journal of Economics
Institution:
Istanbul University Faculty of Economics
Abstract:
The status of countries within the global value chain varies depending on the importance of national production capabilities in the global economy. From this perspective, there is a need for a value-added production approach that focuses on innovation and competitiveness. Technological advances and institutions are considered to play a significant role in transforming the economy towards an innovation-driven one to meet these needs. The aim of this paper is to investigate the relationship among technological advances, the rule of law as a proxy for institutions, value-added production, and competitiveness in a way that reflects crosscountry divergence. Through an analysis employed independently of countries’ existing levels of development, it will be possible to evaluate whether the factors associated with institutions and innovation can produce similar results in all circumstances and for each country. In this context, a panel causality analysis that considers cross-sectional heterogeneity is employed. The analysis shows bidirectional causality between the variables, except for value-added to the rule of law. However, the results also support the existence of cross-country divergence. These findings suggest that future policy plans should be designed to consider the multidimensional nature of country-specific factors, alongside technological advances and the rule of law, and to ensure the integration of both national and international economic objectives.
Topic:
Economics, Science and Technology, Rule of Law, Competition, and Value-added Production
Political Geography:
Global Focus

4. Characterizing China’s Rule of Law

Author:
Ben Lowsen
Publication Date:
09-2023
Content Type:
Journal Article
Journal:
China Brief
Institution:
The Jamestown Foundation
Abstract:
Chinese President Xi Jinping is working in earnest to develop for China what his government calls “rule by law” (法治). It is sometimes translated into English as “rule of law,” though this is misleading, as Chinese law cannot restrict arbitrary exercise of power at the highest levels: the Party leads everything. As such, an awareness of the term’s precise meaning in the PRC’s legal-political context is crucial for understanding Xi’s intent. The Chinese president has stated that “the rule of law is an important component of the country’s core competitiveness” (People’s Daily, November 22, 2020). In light of this, the recently promulgated Foreign Relations Law (对外关系法), which emphasizes China’s competitiveness, provides an opportunity to interrogate Xi’s conception of the rule of law. [1] The Foreign Relations Law (henceforth, the Law) is timely. The head of the powerful Legislative Affairs Committee said in an interview that out of the PRC’s 297 national laws, 52 were dedicated to foreign relations and 150 more had provisions relating to foreign relations. [2] The Law is therefore an important addition, “consolidating and describing the major policies and principles of China’s foreign affairs,” in the words of current (and former) foreign minister Wang Yi. [3] Moreover, it comes at a moment in which China is at once increasingly emboldened on the international stage, and whose relations with many developed countries are increasingly fraught. Support from abroad could be helpful for China as it attempts to navigate out of a mismanaged end to the Covid-19 pandemic, but there is little to reassure foreign partners that their investments in the country will be protected by its laws.
Topic:
Foreign Policy, Governance, and Rule of Law
Political Geography:
China and Asia

5. Access to Justice, the Rule of Law, and Due Process in the US Immigration System: A Tribute to Juan Osuna

Author:
Donald Kerwin
Publication Date:
06-2023
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
This paper introduces a special collection of papers on access to justice, the rule of law, and due process in the US immigration system. The collection honors Juan Osuna, a devoted public servant and former director of the Executive Office for Immigration Review (EOIR), which is the agency in the US Department of Justice (DOJ) that administers the Immigration Courts, the Board of Immigration Appeals (BIA), and legal orientation, assistance, and representation programs. The collection consists of five articles published in the Journal on Migration and Human Security and six CMS essays, written by some of Osuna’s close colleagues and friends. Section I provides a brief biography of Juan Osuna’s life, recites his titles and professional accomplishments, and outlines his views on some of the topics covered in the papers. The section draws heavily from two events that book-ended Osuna’s tenure as EOIR Director, which were organized by the Center for Migration Studies of New York (CMS). The first took place on February 16, 20121 and the second on July 18, 2017,2 just before Osuna’s untimely death at the age of 54 on August 15, 2017. This section also includes remembrances and reflections from Osuna’s colleagues at a November 15, 2018 event in Washington, DC, devoted to honoring his legacy.3 Section II summarizes the 11 papers in this collection, which reflect Juan Osuna’s commitment to humanizing the law and its fair application to all. The papers examine and propose ways to strengthen: • The nation’s response to large-scale migration. • The US asylum system. • The removal adjudication system. • Immigration Court backlog reduction efforts. • The treatment of survivors of human trafficking and modern-day slavery. • Due process for immigrants through legal representation. Section III offers a concluding reflection on the rule of law, and Juan Osuna’s legacy in a time of political division and discord.
Topic:
Immigration, Courts, Rule of Law, Asylum, and Due Process
Political Geography:
North America and United States of America

6. People or Technology: What Drives Democracy

Author:
Paul Nemitz
Publication Date:
03-2022
Content Type:
Journal Article
Journal:
Turkish Policy Quarterly (TPQ)
Institution:
Transatlantic Policy Quarterly (TPQ)
Abstract:
There is no doubt that technology has shaped democracy. However, it is also the legal rules concerning technology which have shaped and have been shaped by democracy. Developing and using technologies according to democratic rules is what we need. There are libertarians today who deliberately design technological systems in a way that makes control by democratic states increasingly difficult. However, there is sufficient counter power and engagement, at least in Europe, to ensure that democracy functions and we work together to produce rules that are sensible for the future of democracy and confirm the supremacy of democracy over technology and business interests.
Topic:
Science and Technology, Democracy, Business, and Rule of Law
Political Geography:
Global Focus

7. Legal Positivism: AN Obstacle in the Process of Strengthening the Rule of Law in Bosnia and Herzegovina

Author:
Benjamin Nurkic
Publication Date:
03-2021
Content Type:
Journal Article
Journal:
Journal of Liberty and International Affairs
Institution:
Institute for Research and European Studies (IRES)
Abstract:
So far, a legal positivism issue in the process of strengthening the rule of law in Bosnia and Herzegovina was not recognized by the wider academic community. The expert report on rule of law issues in Bosnia and Herzegovina addresses, for the first time, legal positivism as a part of the process of strengthening the rule of law in Bosnia and Herzegovina. This paper is an attempt to gather, and in one place present all the advantages offered by the constitutional system of Bosnia and Herzegovina that were not used by its institutions due to the application and implementation of legal positivism. This paper demonstrates misguided reform policies whose sole purpose was the strengthening of the rule of law in Bosnia and Herzegovina but turned to be just superficial adjustments that were unsuccessful. The paper argues the necessity of legal education reform as the key element in the process of strengthening the rule of law. Legal education reform is possible through the reduction of legal positivism impact on future lawyers, and this will be accomplished by the change in the paradigm of legal understanding among future lawyers who will make important decisions on the rule of law in Bosnia and Herzegovina. Two strategic objectives must be met in terms of legal education reform for the strengthening of the rule of law: the development of a critical stance towards legal provisions in force and training in the use of international instruments during the decision-making process.
Topic:
Law, Reform, Constitution, Rule of Law, and Legal Aid
Political Geography:
Europe and Bosnia and Herzegovina

8. Lgitimisation of Autocracy in Turkey and Russia through the Review of the Constitution

Author:
Etleva Paplekaj
Publication Date:
06-2021
Content Type:
Journal Article
Journal:
Journal of Liberty and International Affairs
Institution:
Institute for Research and European Studies (IRES)
Abstract:
The review of the constitution emanates from the constitution, from the institute of constitutional review of which the latter is closely related to the dynamic processes in society as well as with the demand for sustainable stability, stability which very well it may be economic, political or social, national or international, the stability that affects even the constitutional order itself in a state. In this article, we will address the constitutional changes, the amendments over the years In Turkey and Russia which are 'proof' of the violation of the constitutional order, 'proof' of the impinging of democracy and stability in the country. Through this article, we will see that the constitutional system, rule of law, democracy or its consolidation, the stability in the country to a large extent are influenced by the way it is conducted the constitutional review process. The application or non-application of this instrument has multi-dimensional effects, negative, destabilizing ones.
Topic:
Reform, Democracy, Constitution, Political stability, Rule of Law, and Institutionalism
Political Geography:
Europe and Turkey

9. The Role of the Judiciary in Recognizing and Implementing International Law: A Comparative Analysis with Special Reference to Sri Lanka

Author:
K.A.A.N. Thilakarathna
Publication Date:
06-2021
Content Type:
Journal Article
Journal:
Journal of Liberty and International Affairs
Institution:
Institute for Research and European Studies (IRES)
Abstract:
International law had had a profound impact and influence on the domestic legal system in the contemporary world. However, the status of international law within the domestic legal system is not properly defined in many of the jurisdictions including Sri Lanka. In the absence of such a constitutional provision, the judiciary as the last bastion of hope has a responsibility of interpreting domestic law in light of the international standards that have been agreed upon by the country through ratification of international treaties and those principles of customary international law that has become binding on the country. However, too much judicial activism could jeopardize the constitutional fundamentals of separation of powers and the rule of law. Therefore, this study argues that the best way to resolve this issue is by providing a constitutional provision for the role of the judiciary in the recognition and implementation of international law in a domestic context. Using a qualitative methodology with a comparative analysis of the constitutional provisions of the selected jurisdictions of India and South Africa a proposal is made for a constitutional provision for the judicial role in the recognition and implementation of international law in Sri Lanka. The results have revealed that a constitutional provision would help to advance the separation of powers and the rule of law and to well define the role of the judiciary in absorbing international treaty law to the domestic sphere, making the law more certain and predictable and upholding the rights and duties of individuals in a domestic context while fulfilling international obligations of a country under the domestic legal system.
Topic:
International Law, Rule of Law, Judiciary, and Jurisdiction
Political Geography:
Asia and Sri Lanka

10. What Is Wrong?

Author:
Kemal Koprulu
Publication Date:
03-2021
Content Type:
Journal Article
Journal:
Turkish Policy Quarterly (TPQ)
Institution:
Transatlantic Policy Quarterly (TPQ)
Abstract:
The United States of America is in deep trouble. The political infrastructure of the US, along with its underpinning moral fabric, has been crumbling for some time and is now on the brink of collapse. If it does not restructure and revamp its political system with transparency, accountability, political ethics, and rule of law, the US will be beleaguered by domestic turmoil and be thrusted into a darker hole vis-à-vis rising powers such as China. If the US fails, the whole world will fail. While delving into the systemic issues that plague America’s societal values and political foundation, this article, the first of a two-part article, suggests ways the US can redeem its status as a moral authority on the global stage.
Topic:
Hegemony, Political stability, Rule of Law, and Morality
Political Geography:
North America and United States of America

11. What Rule of Law for the European Union? – Tracing the Approaches of the EU Institutions

Author:
Justyna Maliszewska-Nienartowicz and Marcin Kleinowski
Publication Date:
01-2021
Content Type:
Journal Article
Journal:
Polish Political Science Yearbook
Institution:
Polish Political Science Association (PPSA)
Abstract:
Although the rule of law is a normative notion, it requires a multidimensional approach. It speaks to important issues of law and politics, and its respect is essential for both legal and social security. It can be observed within the European Union (EU) where the issue of respect for the rule of law by its Member States has gained particular importance. The main goal of our study is to contribute to the academic discourse concerning the EU rule of law. The analysis particularly considers the approaches adopted by the EU institutions to the definition of this concept. Consequently, the first part of the article concentrates on difficulties in defining the rule of law. The second part presents the evolution of the Court of Justice approach toward this concept. The next part contains the analysis of the attitudes presented by other EU institutions in their documents. In the conclusions, it is underlined that although the approaches of the EU institutions towards the rule of have evolved, and they have tried to define it and indicate its main components, certain issues require clarification, e.g., the relations of the rule of law with other values.
Topic:
International Cooperation, European Union, Rule of Law, and Institutions
Political Geography:
Europe

12. State Capture in Mexico: A Theoretical and Historical Review

Author:
Gerardo Rodríguez Sánchez Lara
Publication Date:
06-2021
Content Type:
Journal Article
Journal:
Journal on International Security Studies (RESI)
Institution:
International Security Studies Group (GESI) at the University of Granada
Abstract:
The purpose of this article is to review the works of several academics specialized in the matter of security, which the authors will use as an analytical setting and revision their outcomes to define and understand the concept of state capture. Once the concept of state capture is defined, then the case of Mexico will be analysed. This article intends to discuss several indicators regarding state capture such as the rule of law, how political violence has also influenced the issues of corruption, impunity, and mentions how money laundering prevention serves as a tool for tackling corruption. In order to grasp an understanding what state capture is, we must first develop conceptualizations of corruption, impunity and its classifications, the rule of law, and the state apparatus. This article intends to analyse the implications that all of the above might have with regards to a state captured democracy, from an academic approach.
Topic:
Rule of Law, Financial Crimes, Impunity, Organized Crime, and State Capture
Political Geography:
Mexico

13. To Be Served and Protected: Israeli Arab Citizens and the Police

Author:
Guy Ben-Porat
Publication Date:
03-2021
Content Type:
Journal Article
Journal:
Brown Journal of World Affairs
Institution:
Brown Journal of World Affairs
Abstract:
In January 2021, Prime Minister Benjamin Netanyahu paid a visit to Umm al-Fahm, an Arab city in the north of Israel. The visit, officially celebrating the country’s millionth COVID-19 vaccine recipient, also had a political purpose: winning the forthcoming elections in March 2021. For the first time, Netanyahu and the Likud party hoped to gain support from Israel’s Arab citizens. Among Netanyahu’s promises of economic betterment was a commitment to fight ris- ing crime and violence in Arab cities. He pledged “a comprehensive plan” with the primary goal of constructing more police stations “because a dense network of police stations creates more security.” Going further, he added that he “also want[ed] more intelligence, more officers, and more means [of enforcement].” Netanyahu declared himself “first and foremost committed to the rule of law and safety for citizens.”1
Topic:
Human Rights, Inequality, Citizenship, Rule of Law, and Police
Political Geography:
Middle East, Israel, and Palestine

14. War on Terrorism and its Impacts on Pakistan's Security

Author:
Huma Bilal, Azkaa Khan, and Mian Muhammad Azhar
Publication Date:
07-2021
Content Type:
Journal Article
Journal:
South Asian Studies
Institution:
Department of Political Science, University of the Punjab
Abstract:
This article moves around the security of Pakistan and examined the incident of 9/11 and counter-terrorism strategies of civil-military during the war on terror. This study tells us that big attacks increase terrorism. After 9/11 some countries actively supported America in the war against terrorism and faced its negative consequences. Terrorism is a serious issue in the world. Many countries have taken serious actions against this evil. Pakistan faces many security challenges in the war against terrorism. This article is based on qualitative research techniques and secondary data. The massive lesson here is that the decision-making process should not be one-sided otherwise it leads to serious consequences. Pakistan experienced the worst issues in the portfolio of security. This requires a serious action plan on border security. Establish the writ of the state and secure the people from all internal and external threats. Resolve the conflicts between hostile factors peacefully without compromising on rule of law.
Topic:
Security, Terrorism, Taliban, Al Qaeda, and Rule of Law
Political Geography:
Pakistan and South Asia

15. How Embassy Pristina Helped Kosovo Manage the Foreign Terrorist Fighter Problem

Author:
Greg Delawie
Publication Date:
09-2020
Content Type:
Journal Article
Journal:
The Ambassadors Review
Institution:
Council of American Ambassadors
Abstract:
Kosovo, which declared independence from Serbia in 2008, is the most pro-American country in the world. From 2012 to 2013, it was also the world’s per-capita biggest source of foreign terrorist fighters (FTFs) in Syria. It would seem those two statements could not possibly both be true, but they are. This is the story of how the professional diplomats at the U.S. Embassy in Pristina, aided by experts from the United States, played a major role in helping the new country bring the FTF problem under control for our mutual benefit. Between 2012 (when the Syrian civil war started) and 2016, more than 300 Kosovo citizens went to fight with al-Nusra, or ISIS. U.N. Development Program analysts who interviewed FTFs identified two categories of reasons for this phenomenon: “push factors” and “pull factors.” Among the push factors were Kosovo’s poverty, weak rule of law (enabling porous borders), corruption and high unemployment, especially among the young (60%, compared to 30% overall, in a population with 50% age 25 or younger). The pull factors were more complicated: After the 1998-1999 Kosovo war, “humanitarian” NGOs from the Middle East came to build mosques and provide aid, also importing Wahabi-style Islam, which is very different from Kosovo’s Hanafi Islamic tradition. Some Kosovo imams trained in Middle Eastern religious schools came back with a more radical Islam. ISIS recruiters proclaimed a religious duty for Kosovars to help Syrian Muslims threatened by Syrian President Bashar al-Assad. Radical imams operating outside the Kosovo Islamic community recruited young men, often offering computer or English classes as bait.
Topic:
Terrorism, Counter-terrorism, Conflict, and Rule of Law
Political Geography:
Europe, Kosovo, and Balkans

16. Freedom of Expression and Justiciability in Pakistan

Author:
H.S. Sharif and Jafar Riaz Kataria
Publication Date:
01-2019
Content Type:
Journal Article
Journal:
South Asian Studies
Institution:
Department of Political Science, University of the Punjab
Abstract:
This paper would discuss freedom of expression and restrictions on the freedom with particular reference to the provisions of International Covenant on Civil and Political Rights (ICCPR) and the „Justiciability Doctrine‟ as enshrined in the European Convention of Human Rights (ECHR). The question whether the freedom of expression claims are justiciable or not, in third world countries like Pakistan and how it helps in the advancement of rule of law and good governance would be explored. The focus would be on the cultural relativism narrative developed ever since the adoption of the Universal Declaration of Human Rights (UDHR). The claims of „Universalism‟ associated with human rights especially freedom of expression would be criticized with respect to the Margin of Appreciation Doctrine as reflected in the jurisprudence of the European Court of Human Rights (ECtHR) and adopted in other jurisdictions. Freedom of expression and the rights of minorities in Pakistan would be discussed with a special mention of proselytization and forced conversions. Lastly, the role of legislation and judiciary in Pakistan for the protection and advancement of the freedom of expression guarantee would be discussed.
Topic:
Human Rights, Governance, Culture, Freedom of Expression, and Rule of Law
Political Geography:
Pakistan, South Asia, and Punjab

17. The Power of Ideas That Won the Cold War is Still Needed

Author:
Christopher Datta
Publication Date:
11-2019
Content Type:
Journal Article
Institution:
American Diplomacy
Abstract:
To win the Cold War, President Ronald Reagan did something for which he is never credited: he dramatically increased the budget of the United States Information Agency, the public diplomacy arm of our struggle against communism. Senegal, in September of 1999, was about to hold a presidential election. Because of USIA's long history of promoting journalism in Senegal, the embassy decided to work in partnership with the local Print, Radio and Television Journalists Federation to hold a series of workshops on the role of journalists in covering elections. USIA was uniquely organized to promote democratic development through the long term support of human rights organizations, journalism, programs that helped build the rule of law, educational programs that encouraged the acceptance of diversity in society and, perhaps most importantly, through partnering with and supporting local opinion leaders to help them promote democratic values that stand in opposition to ideologies hostile to the West.
Topic:
Cold War, Diplomacy, Human Rights, Elections, Democracy, Rule of Law, Ideology, Networks, and Journalism
Political Geography:
Afghanistan, Russia, United States, Europe, Iran, Soviet Union, West Africa, Syria, and Senegal

18. Advancing the Rule of Law Through Executive Measures: The Case of MINUSCA

Author:
Edith Vanspranghe
Publication Date:
08-2019
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) has been mandated to implement “urgent temporary measures” in the form of arrests and detentions of individuals. This rather innovative mandate brings about several legal and conceptual consequences that the article addresses, focusing on the compatibility of these measures with UN peacekeeping norms and principles and with past UN practice. In addition, the measures are said to contribute to law and order, public safety, the fight against impunity, and to the rule of law. This sheds light on the UN’s interesting conception of the rule of law in the Central African Republic and in conflict and post-conflict settings in general.
Topic:
International Law, United Nations, Conflict, and Rule of Law
Political Geography:
Africa and Central African Republic

19. Modern Authoritarian Regimes: a Contribution to the Systematisation of the Continuing Debate

Author:
Jan Holzer and Peter Martinek
Publication Date:
01-2018
Content Type:
Journal Article
Journal:
Warsaw East European Review (WEER)
Institution:
Centre for East European Studies, University of Warsaw
Abstract:
This paper deals with the conceptual framework of so-called ‘modern authori- tarianism’, allegedly a form of government typical of non-democratic regimes at the begin- ning of the twenty-first century. The paper is based on the approach of Tyler Roylance, who divided the sources of legitimacy employed by modern authoritarian regimes into five spheres: the economy, the media, political competition, civil society and the rule of law. Following the arguments presented by various authors in their efforts to conceptualise different examples of modern authoritarianism, the paper aims to contrast this debate with the classical approaches to the research of non-democratic regimes.
Topic:
Corruption, Authoritarianism, Rule of Law, and Propaganda
Political Geography:
Global Focus

20. Constitutionalism and the Mechanics of Global Law Transfers

Author:
Andreas L. Paulus and Johann Ruben Leiss
Publication Date:
12-2018
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article explores rule of law transfers from an international perspective. Based on the observation that the proposal of an emerging international constitutional order seems to have lost momentum this article emphasizes a global legal reality that is characterized by a complex and rather non-hierarchical interplay between various (fragmented) international legal orders and suborders as well as national legal orders. This article discusses four legal mechanisms that are of pivotal relevance with respect to global rule of law transfers. These mechanisms include, first, so-called “hinge provisions” as doorways between different legal orders, second, harmonious interpretation as a legal tool of integration, third the sources of international law enabling transmission of norms and providing a framework for judicial interaction and, fourth, judicial dialogue as an informal means of rule of law transfer.
Topic:
International Cooperation, International Law, Sovereignty, and Rule of Law
Political Geography:
Global Focus

21. The Dawn of Article 18 ECHR: A Safeguard Against European Rule of Law Backsliding?

Author:
Floris Tan
Publication Date:
12-2018
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article examines an underexplored avenue for the protection of the rule of law in Europe: Article 18 of the European Convention on Human Rights. This provision prohibits States from restricting the rights enshrined in the European Convention for any other purpose than provided for in the Convention. In this contribution, the author argues, based on a combination of textual, systematic and purposive interpretations of Article 18, that the provision is meant to safeguard against rule of law backsliding, in particular because governmental restrictions of human rights under false pretenses present a clear danger to the principles of legality and the supremacy of law. Such limitations of rights under the guise of legitimate purposes go against the assumption of good faith underlying the Convention, which presupposes that all States share a common goal of reinforcing human rights and the rule of law. Article 18 could therefore function as an early warning that European States are at risk of becoming an illiberal democracy or even of reverting to totalitarianism and the destruction of the rule of law. The article then goes on to assess the extent to which the European Court’s case-law reflects and realizes this aim of rule of law protection, and finds that whereas the Court’s earlier case-law left very little room for an effective application of Article 18, the November 2017 Grand Chamber judgment in Merabishvili v. Georgia has made large strides in effectuating the provision’s raison d’être. As the article shows, however, even under this new interpretation, challenges remain.
Topic:
Human Rights, International Law, and Rule of Law
Political Geography:
Europe

22. The Law Behind Rule of Law Promotion in Fragile States: The Case of Afghanistan

Author:
Astrid Wiik and Frauke Lachenmann
Publication Date:
12-2018
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Rule of law (RoL) promotion has become a go-to-tool in the complex process of stabilizing and rebuilding (post-)conflict States. The process is driven by a heterogeneous group of national, foreign, and international actors who define and prescribe RoL norms and standards, who programme, finance, implement, and eventually monitor RoL reforms. While the legitimacy and effectiveness of RoL promotion has undergone scrutiny, particularly within the overall context of international development assistance, an aspect that has so far received little attention is the legality of RoL promotion. This concerns both the mandate of the various actors and the execution of RoL activities on the ground. Since 2001, the international community has intensely supported the RoL in Afghanistan rendering it a veritable testing ground for RoL promotion. The article explores the legal framework for actors in RoL promotion in Afghanistan from 2001 up to the present day, with a focus on the German Government, its development cooperation agencies, and private non-governmental organizations (NGOs). The article shows that while detailed rules bind the monitoring and evaluation of RoL activities in line with the existing international frameworks for development assistance, few laws and principles guide the programming and implementation of RoL promotion. The existing standards are generally too abstract to guide specific RoL promotion activities. Further concretization and harmonization is necessary in the interest of the sustainability of RoL promotion in Afghanistan – and elsewhere.
Topic:
International Law, Non State Actors, Governance, and Rule of Law
Political Geography:
Afghanistan and Middle East

23. International Investment Law and the Rule of Law

Author:
Peter-Tobias Stoll
Publication Date:
12-2018
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
International investment law appeals to a lawyer’s appetite for the rule of law by disciplining the exercise of power between States and foreign investors through legalization and judicialization. Originally supposed to serve as a fix to promote foreign investments in developing countries in times of legal uncertainties, now, thousands of bilateral investment agreements exist, and the number of cases in investment arbitration has exploded in the last decade. Further, there is a tendency of generalization, as investment protection now features as a standard element of international trade agreements, far beyond the original focus on developing countries. A number of flaws and shortcomings of the rules and procedures became apparent in the course of the more frequent use of the system and resulted in much discussion within the expert community, which resulted in some changes. Furthermore, the long neglected possibility became apparent, that investment claims could be directed against industrialized countries and that the conduct of their authorities could be subjected to review by international arbitration tribunals. This sparked heated public debates, particularly so in the EU. These two developments have in common, that they implicitly as well as explicitly raised the issue of the rule of law. This paper will assess the system of international investment law as it stands, its critique and its reform, through the lens of the rule of law. It will also make a highly idealistic proposal on the further development of international investment protection. In concluding, it will reflect on the proper use of the rule of law in legal analysis, by setting out the different perspectives in which the term may be employed, and the methodological consequences.
Topic:
International Law, International Trade and Finance, Rule of Law, and Investment
Political Geography:
Global Focus

24. Rule of/by Law?

Author:
Brad Glosserman and Ralph A. Cossa
Publication Date:
09-2016
Content Type:
Journal Article
Journal:
Comparative Connections
Institution:
Pacific Forum
Abstract:
The rule of law took a few huge hits during the year’s second trimester, as Beijing chose to ignore the UNCLOS Arbitral Tribunal’s ruling that negated many of its South China Sea claims, while Pyongyang displayed its usual disdain for the latest UN Security Council Resolution 2270 with a series of ballistic missile launches, highlighted by a submarine-launched ballistic missile test. There were also a number of significant multilateral forums addressing regional security and economic issues, or both. Most in some form also touched upon the South China Sea and Korean Peninsula, even as ASEAN danced around the Tribunal’s ruling. Meanwhile in the battle of who gets to make trade rules, the Chinese-backed Regional Comprehensive Economic Partnership (RCEP) seemed to fare only slightly better than the US-driven Trans-Pacific Partnership (TPP), the objection to which seems to be the only thing the two US presidential candidates agree upon.
Topic:
International Trade and Finance, Territorial Disputes, Maritime, Conflict, and Rule of Law
Political Geography:
China, Asia, North America, and United States of America

25. Iraq’s Year of Rage

Author:
Mieczyslaw P. Boduszynski
Publication Date:
10-2016
Content Type:
Journal Article
Journal:
Journal of Democracy
Institution:
National Endowment for Democracy
Abstract:
Iraqis of all ethnic and sectarian groups are fed up with the ineptitude and corruption of their political leaders and the institutions they control. Since 2015, they have turned out in record numbers to protest against their political elite. The protests that unfolded in 2015 and 2016 have highlighted two failings of Iraq’s post-2003 “democratic” order: 1) the entrenchment of a corrupt “partyocracy” that has captured the state and deepened sectarian divisions, and 2) the weakness of state institutions and the absence of the rule of law that have encouraged widespread corruption and fostered broad popular distrust of the post-Saddam Iraqi state.
Topic:
Social Movement, Democracy, Rule of Law, Protests, and Diversity
Political Geography:
Iraq and Middle East

26. Hard Power versus Soft Power or a Balance between the Two?

Author:
Peter Volten
Publication Date:
07-2016
Content Type:
Journal Article
Journal:
All Azimuth: A Journal of Foreign Policy and Peace
Institution:
Center for Foreign Policy and Peace Research
Abstract:
Many things have changed in Turkey within the last decade, but also in Brussels as to the political practises. This commentary seeks to answer whether Turkey and the EU can find and maintain a sensible balance between toughness and empathy, between considerations of hard power and soft power. Turkey is obviously an essential, regional player both economically and militarily. Geopolitics may not appear high on the agenda of the EU, but the situation in the Middle-East simply could not and cannot be ignored as a geopolitical challenge, one that might beg for acting in concert with Turkey. On the other side, Europe represents an attraction and example based on a long history and struggle for material wealth, technological and scientific progress as well as for the accomplished degree of democracy and the rule of law. More recently, however, EU soft power suffers a number of setbacks. We disown our most basic values of soft power and will lose impact in promoting a just, democratic order in the world. If the EU and its member states fail to recover from this set-back, we risk to fall back in the hard power game, also with potential and aspiring states.
Topic:
Politics, European Union, Democracy, Geopolitics, Rule of Law, and Soft Power
Political Geography:
Europe, Turkey, Middle East, and Mediterranean

27. Agencies, Roles and Their Choices: Reform of the Korean Legal Profession from 1995 to 2007

Author:
Yukyoung Choe
Publication Date:
04-2012
Content Type:
Journal Article
Journal:
Joint U.S.-Korea Academic Studies
Institution:
Korea Economic Institute of America (KEI)
Abstract:
Northeast Asian countries including Japan, Korea, China and Taiwan, have recently considered adopting the U.S.-style legal education as a revolutionary remedy to dissolve chronic problems of the Pre-Reform system. Especially in Korea and Japan, reform of the legal professional training system underwent a profound transformation by switching their four-year undergraduate legal education system to a three-year postgraduate – the U.S.-style law school — legal education.1 Although the legal education system itself does not guarantee an advent of a law-governed society, the U.S.-style law school system provides symbolic meaning to Asian countries moving toward the rule of law, access to justice, and globalization.2 Despite seemingly unending controversies, both Japan and Korea implemented the postgraduate law school system in 2004 and 2009 respectively. They both have conformed to the globalization pressure, the public demands of establishing a law-governed society by expanding the size of their legal education, and increasing the number of practicing lawyers.
Topic:
Education, Law, Rule of Law, and Domestic Policy
Political Geography:
Asia and South Korea

28. Building the Rule of Law and Establishing Accountability for Atrocities in the Aftermath of Conflict

Author:
Louis Aucoin
Publication Date:
01-2007
Content Type:
Journal Article
Journal:
The Journal of Diplomacy and International Relations
Institution:
School of Diplomacy and International Relations, Seton Hall University
Abstract:
As places like Iraq and Afghanistan dominate the news, perhaps never before has post-conflict reconstruction assumed greater importance. As the resources of countries around the globe are invested in these and other conflict and post-conflict situations, it has become increasingly clear that the establishment of the rule of law is essential to the success of these efforts. In fact, the authorities have begun to recognize that the failure to prioritize the rule of law has been one of the chief failings of recent post-conflict missions.1 In the Secretary-General of the United Nations’ August 2004 report entitled “The rule of law and transitional justice in post-conflict societies,” Kofi Annan has defined the rule of law as: a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedure and legal transparency.2 In the past few decades, international and local actors have been working separately and together to foster all of these aspects of the rule of law in countries where it has been destroyed by conflict. There are now a number of activities that have emerged as standard strategies for the promotion of rule of law and transitional justice in post-conflict societies. New lessons are learned from each international mission or intervention in post-conflict societies, and practitioners are beginning to identify important methodological approaches building on those lessons. So-called “top-down” approaches, in which international elites attempt to impose foreign models, are frowned upon, and “bottom-up” strategies designed to foster local ownership and legitimacy are favored. In addition, practitioners of rule of law promotion now call for a holistic approach to this field in which multidisciplinary teams coordinate all of their activities pursuant to a strategic plan, which itself is the result of a careful pre-deployment assessment. The principal activities now intimately associated with this new field include: constitution-making, judicial reform, law development, democratic policing, establishing accountability/fighting impunity, fighting corruption, and the use of local customary practices in promoting the rule of law. This study analyzes the state of the art of rule of law promotion in the context of each one of these rule of law activities, briefly identifying the lessons learned, flagging questions unanswered, and, where possible, identifying the way forward.
Topic:
Conflict, Rule of Law, Accountability, and Atrocities
Political Geography:
Global Focus