Publication Year: within 10 Years and within 5 Years / Topic: Rule of Law

1. Rule of law: the uncertain gamble on conditionality

Author:: Eric Maurice
Publication Date:: 03-2023
Content Type:: Policy Brief
Institution:: Robert Schuman Foundation (RSF)
Abstract:: Will 2023 be the year when Hungary and Poland join the ranks of Member States that respect the values of the European Union? Nothing is less certain because, in Budapest as in Warsaw, the reforms demanded by the Union have not yet been implemented. In early February Polish president Andrzej Duda, referred a law which was supposed to bring an end to disciplinary abuses against judges to the Constitutional Court. The Hungarian government has still not completed reforms to make public procurement more transparent and to strengthen the fight against corruption. The fact that these measures are being discussed indicates however that the balance of power has changed. 2022 was a pivotal year in the European Union's efforts to combat breaches of the rule of law in its Member States. For the first time, a range of new and old tools, specific or not, structural or conjunctural, were used to try to reverse the trend that has been developing for several years, mainly in Hungary and Poland, of undermining the independence of the judiciary, systems of checks and balances, and certain rights that are considered fundamental.
Topic:: European Union, Rule of Law, Judiciary, and Regional Politics
Political Geography:: Europe, Poland, Romania, and Hungary

2. India’s personal data protection act and the politics of digital governance

Author:: Stephen Weymouth
Publication Date:: 05-2023
Content Type:: Working Paper
Institution:: Atlantic Council
Abstract:: India recognizes the importance of establishing policy foundations for digital commerce, as cross-border data flows are essential to firms in all sectors, not just in technology. In manufacturing, three dimensional printing and robotics are revolutionizing production processes. Agriculture is benefiting from sensors and analytics, which optimize crop yields and resource usage. Healthcare is being transformed by electronic medical records, health information exchanges, and algorithms that analyze patient data and detect illness. Financial services are using blockchain technologies and AI to enable faster and more secure transactions. All industries rely on electronic payments, data analytics, and cloud storage to streamline various processes. With customers located worldwide, cross-border data flows are the byproduct of digital transactions. Data privacy frameworks can facilitate these flows by building consumer trust, thereby unlocking innovation and efficiency in all sectors. Given the significance of cross-border data flows to its economy, India has actively engaged in multilateral and bilateral discussions on digital trade governance. It is a member of the Quadrilateral Security Dialogue (Quad), a strategic forum comprising the United States, Japan, India, and Australia, a possible venue for coordination on digital governance. India has also joined the Indo-Pacific Economic Framework (IPEF), a US-led framework for economic cooperation which will facilitate conversations seeking “high-standard rules of the road in the digital economy, including standards on cross-border data flows and data localization.” The US-India Initiative on Critical and Emerging Technologies (iCET), launched by Indian Prime Minister Narendra Modi and US President Joe Biden during the Quad summit in May 2022, presents an opportunity to build India-US trade ties through an industry-focused agenda. Finally, India and the United States have launched a new bilateral Defense Industrial Cooperation Roadmap to accelerate technological cooperation. This issue brief delves into the politics of India’s evolving digital governance, focusing on the draft Digital Personal Data Protection Bill of 2022 (DPDPB). The DPDPB aims to balance the interests of Indian consumers seeking enhanced privacy and data security against the business need for unconstrained data flows. The government’s responsive approach to stakeholder feedback on previous versions of the bill indicates that achieving these goals is feasible. However, concerns persist about ambiguities surrounding data transfers and institutional arrangements that exempt the government from complying with the law in ways that may encourage surveillance and censorship of opposing viewpoints.
Topic:: Economy, Business, Rule of Law, Data, and Data Governance
Political Geography:: South Asia and India

3. Holding the Islamic Republic of Iran accountable for atrocity crimes

Author:: Celeste Kmiotek, Alana Mitias, and Nushin Sarkarati
Publication Date:: 04-2023
Content Type:: Policy Brief
Institution:: Atlantic Council
Abstract:: With little to no prospect for accountability within Iran’s domestic courts, victims and survivors of serious violations of international law are turning toward an increasing number of foreign jurisdictions—most commonly in Europe and North America, but also in Latin America, Africa, and other regions—to pursue justice for human rights violations carried out by the Islamic Republic of Iran. Under the principle of universal jurisdiction, certain domestic justice systems allow prosecutions in national courts for crimes committed abroad, regardless of the victim’s or perpetrator’s nationality. Universal jurisdiction stems from the concept that certain crimes are of such gravity that they harm the international community as a whole, so national courts outside the country where the violations took place may prosecute them to protect the international order. Although the crimes subject to universal jurisdiction provisions differ by state, they generally include crimes against humanity, torture, war crimes, and genocide. Limitations on universal jurisdiction also vary between states, however, as do the processes for filing complaints and procedures for investigations, trials, and appeals. As was shown by the trial and conviction of Hamid Noury in Sweden for his involvement in the massacre of Iranian political prisoners in 1988, national prosecutions of international crimes can be a fruitful avenue to justice for victims of the Islamic Republic. To this end, the Atlantic Council’s Strategic Litigation Project has compiled a guide to aid practitioners and independent investigators in navigating the legal systems of European states with the highest likelihood of prosecuting Iranian human rights violators. Focusing on five states—France, Germany, the Netherlands, Sweden, and Switzerland—this manual outlines the crimes and violations subject to universal jurisdiction, best practices for investigating and documenting crimes, and processes for requesting investigations and participating in prosecutions as a victim, witness, or NGO. For information that is beyond the scope of this manual, the annex includes printed resources to consult and organizations to contact for additional assistance.
Topic:: Diplomacy, Human Rights, Politics, Rule of Law, Accountability, Norms, Atrocities, Resilience, and Society
Political Geography:: Iran and Middle East

4. Authoritarian kleptocrats are thriving on the West’s failures. Can they be stopped?

Author:: Francis Shin and Ben Judah
Publication Date:: 01-2023
Content Type:: Special Report
Institution:: Atlantic Council
Abstract:: A hidden web of power revealed itself to Internet users in early 2022. Following a brutal government crackdown in Kazakhstan in January, anyone using open-source flight-tracking websites could watch kleptocratic elites flee the country on private jets. A little more than a month later, Russia’s invasion of Ukraine brought a new spectacle: social media users were able to track various oligarchs’ superyachts as they jumped from port to port to evade Western sanctions. These feeds captured a national security problem in near real time: In Eurasia and beyond, kleptocratic elites with deep ties to the West were able to move themselves and their assets freely despite a host of speeches by senior officials, sanctions, and structures designed to stop them. Kleptocratic regimes—kleptocracy means “rule by thieves”—have exploited the lax and uneven regulatory environments of the global financial system to hide their ill-gotten gains and interfere in politics abroad, especially in the United States, the United Kingdom, and the European Union. They are aided in this task by a large cast of professional enablers within these jurisdictions. The stronger these forces get, the more they erode the principles of democracy and the rule of law. Furthermore, the international sanctions regime imposed on Russia in response to its invasion of Ukraine has little hope of long-term success if the global financial system itself continues to weaken. The West still has a long way to go to rein in the authoritarian kleptocrats who have thrived on the institutional dysfunction, regulatory failure, and bureaucratic weakness of the transatlantic community for far too long. We need to rethink not just how we combat kleptocracy, but also how we define it. Policy makers need to understand that authoritarian regimes that threaten transatlantic security are closely linked to illicit financial systems. As it stands, our thinking about how foreign corruption spreads is too constrained by stereotypes about kleptocratic goals and actions.
Topic:: Corruption, Diplomacy, Intelligence, Politics, Sanctions, Authoritarianism, Reform, European Union, Regulation, Finance, Economy, Rule of Law, and Russia-Ukraine War
Political Geography:: Russia, United Kingdom, Europe, Ukraine, Canada, and United States of America

5. Triggering the Rule-of-Law Conditionality Mechanism against Hungary

Author:: Veronika Jóźwiak
Publication Date:: 03-2023
Content Type:: Working Paper
Institution:: The Polish Institute of International Affairs
Abstract:: The mechanism that makes the payment of funds from the EU budget conditional on compliance with the principles of the rule of law is the newest instrument for protecting the Union’s financial and political interests. The tool allows the European Commission and the EU Council (Council) to exert influence on Member States that violate the fundamental principles of the Community. Triggering it against Hungary might result in a reduction of EU funds to the country as a consequence of rule-of-law violations for the first time in EU history. It is doubtful, however, that this will lead to systemic changes in Hungary.
Topic:: European Union, Rule of Law, European Commission, and Regional Politics
Political Geography:: Europe and Hungary

6. After Russia’s invasion of Ukraine: Unity is good, but ambition is better

Author:: Sophie Pornschlegel and Ilke Toygür
Publication Date:: 06-2022
Content Type:: Working Paper
Institution:: European Policy Centre (EPC)
Abstract:: In view of the volatile geopolitical environment, EU leaders no longer have the luxury of waiting for all 27 member states to find a consensus. In order to lead the way to a Union that is apt for future challenges, the EU should become more ambitious and embrace alternatives, such as differentiated integration, in the coming months and years. Rather than returning to the status quo ante, the EU should use this momentum to progress in five policy fields: economic governance, with a new recovery package and a reform of the fiscal rules; security and defence, with improved EU–NATO cooperation and a stronger ‘European pillar’; energy policy, by quickly steering member states away from dependence on Russian fossil fuels while simultaneously ensuring admissible energy prices for consumers and respecting the climate targets; enlargement and neighbourhood policy, by rethinking its aims and creating options for countries that are unlikely to become EU members in the foreseeable future; and the rule of law, to safeguard the Union’s values ‘at home’. Both the COVID-19 pandemic and the Russian invasion revealed that the EU institutions and leaders are capable of managing crises swiftly and decisively. This reality certainly increases its legitimacy in the eyes of its citizens as well as its allies. The European Union could use this moment of change to increase its ambition for reforms and for moving European integration forward. This should encourage leaders to think about all the options for designing the Union’s future. This is not a time for black and white thinking – Treaty change or nothing –, but rather a time to explore all the shades of grey for securing necessary reforms. If like-minded countries could lead the way, others may also follow. The changing and evolving positions in the EU could help secure more inclusive alliances for moving forward. The political momentum to do so is finally here.
Topic:: Security, Energy Policy, European Union, Geopolitics, Economy, Rule of Law, Regional Politics, and Russia-Ukraine War
Political Geography:: Russia, Europe, and Ukraine

7. What should the EU do about Hungary’s illiberal turn?

Author:: Perle Petit
Publication Date:: 11-2022
Content Type:: Working Paper
Institution:: European Policy Centre (EPC)
Abstract:: Since 2010, Hungary’s government has followed a clear and deliberate trajectory away from EU democratic principles, turning the country into the first illiberal state in the Union. Before Russia invaded Ukraine in February 2022, Hungary’s illiberal turn remained relatively self-contained at the national level. Since the start of the war, however, this illiberalism has spread to the international arena, dramatically impeding EU institutional decision-making processes. Despite the urgency of the matter, the EU’s failure to address the country’s democratic decline has been evident. The EU institutions need to address the national and international impact of Hungary's flouting of democratic norms by proposing both short- and long-term solutions. To do so, the institutions should take the following actions: The EU Commission should stand fully behind the triggering of the rule of law conditionality mechanism against Hungary and insist that the country implements all proposed remedial measures in a legislatively binding way. A periodic review system must be put in place to avoid any reversal of these measures or manipulation of independent public bodies in the coming years. The rule of law conditionality mechanism should be triggered against other infringing countries, to demonstrate a zero-tolerance approach to democratic backsliding. The suspension of EU funds should be harmonised across different funding schemes. In this way, the Commission can avoid becoming compromised by disconnected conditionality mechanisms. Increased capabilities and powers should be conferred to independent EU organisations, such as the European Anti-Fraud Office and the European Public Prosecutor’s Office. These should review the strength of democratic institutions in backsliding countries and provide recommendations for reform. The institutions should look into the regional disbursement of EU budgets, bypassing central governments to allocate funds on a regional basis. The Council should consider replacing the unanimity rule with qualified majority voting to render EU decision-making processes more effective and to prevent single member states from holding EU decisions ‘hostage’. As Hungary’s leadership shows no signs of changing course, the EU should change tactics to actively preserve and protect democracy within its borders. The EU institutions should use the full toolbox at their disposal to halt Hungary’s illiberal turn, restore the independence of democratic institutions, and take long-term steps to prevent any further backsliding within the Union.
Topic:: European Union, Rule of Law, European Commission, Illiberalism, and Viktor Orbán
Political Geography:: Europe and Hungary

8. Corruption and crisis: do institutions matter?

Author:: Shrabani Saha and Kunal Sen
Publication Date:: 03-2022
Content Type:: Working Paper
Institution:: United Nations University
Abstract:: While the short-term effects of the COVID-19 pandemic on lives and livelihoods are well understood, we know little about the effect of the pandemic for longer-term outcomes such as corruption. We look at the historical data on political and economic crises to assess what we can learn from the long-term effects of past crises on corruption. We hypothesize that strong rule of law institutions may ameliorate the possible adverse effects of political and economic crises on corruption. We test our hypotheses using panel data for over 100 countries during the years 1800– 2020. The results suggest heterogeneous effects depending on the type of crisis and how we measure it. We find that rule of law institutions can control corruption in cases of political violence and economic slowdown, but the effect is not seen for democracy breakdowns, coups, armed conflict and civil war, and economic crisis such as currency and debt crisis.
Topic:: Corruption, Politics, Rule of Law, Institutions, Data, COVID-19, and Economic Crisis
Political Geography:: Global Focus

9. People or Technology: What Drives Democracy

Author:: Paul Nemitz
Publication Date:: 03-2022
Content Type:: Journal Article
Journal:: Turkish Policy Quarterly (TPQ)
Institution:: Turkish 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

10. Population density and governance in Africa

Author:: Pranish Desai
Publication Date:: 10-2022
Content Type:: Working Paper
Institution:: Afrobarometer
Abstract:: Across Africa, denser populations are associated with less confidence in institutions and the rule of law. What does that mean for the world’s fastest-urbanising continent?
Topic:: Governance, Population, Urbanization, and Rule of Law
Political Geography:: Africa

11. The Rollback of Human Rights and the Rule of Law in Hong Kong

Author:: Michael C. Davis
Publication Date:: 02-2021
Content Type:: Policy Brief
Institution:: The Jamestown Foundation
Abstract:: After the Hong Kong protest movement exploded in 2019, the world looked on with both hope and trepidation. Protestors made five demands: that a proposed extradition law be withdrawn; that there be an independent investigation of police behavior; that the protests stop being characterized as riots; that any charges against arrested protesters be dropped and that promised universal suffrage be implemented (HKPF, December 25, 2019). After months of protest, Hong Kong Chief Executive Carrie Lam publicly withdrew the extradition bill, fulfilling the first of the protestors’ demands (SCMP, September 4, 2019). But this temporary victory was too little too late and overshadowed by the ongoing and often violent crackdown on the protesters, and then in 2020, with Beijing’s imposition of the new National Security Law (NSL) (China Brief, July 29, 2020).
Topic:: Human Rights, Law, Rule of Law, Protests, and Repression
Political Geography:: China, Asia, and Hong Kong

12. What Is Wrong?

Author:: Kemal Koprulu
Publication Date:: 03-2021
Content Type:: Journal Article
Journal:: Turkish Policy Quarterly (TPQ)
Institution:: Turkish 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

13. Paraguay's Compliance With The Inter-American Human Rights System

Author:: Aníbal Pérez-Liñán, Madeline Soiney, and Andrés Hernández
Publication Date:: 12-2021
Content Type:: Working Paper
Institution:: Kellogg Institute for International Studies
Abstract:: Why do new democracies comply with international human rights obligations? We analyze Paraguay’s compliance with all reparation measures requested by the Inter-American Human Rights System over the past two decades. In contrast to most studies, which focus on reparation measures ordered by a single organ in the system, our study covers all orders resulting from friendly settlements, reports published by the Inter-American Commission on Human Rights, and rulings by the Inter-American Court of Human Rights. We provide a novel classification of human rights cases, and evaluate three competing explanations for compliance: legal factors, international pressures, and domestic political will. Our analysis of 1,426 reparation-years underscores the importance of changes in political will over time.
Topic:: Human Rights, Democracy, Rule of Law, and Institutions
Political Geography:: Latin America, Paraguay, and Global Focus

14. The EU-Turkey Visa Liberalization Saga: Lessons from the European Neighborhood

Author:: Ioannis N. Grigoriadis and Ayşe Tuba Uslu
Publication Date:: 06-2021
Content Type:: Working Paper
Institution:: Hellenic Foundation for European and Foreign Policy (ELIAMEP)
Abstract:: This policy paper co-authored by Ioannis Grigoriadis, Senior Research Fellow of ELIAMEP and Head of its Turkey Programme, and Ayşe Tuba Uslu, Senior at the Department of International Relations of Bilkent University, lays out the main challenges for the successful conclusion of the Visa Liberalization Dialogue (VLD) between the European Union and Turkey. It examines the impact of democratic backsliding, the decline of the rule of law, fundamental rights and divergence in the legal framework regarding organized crime and anti-terrorism on the VLD and highlights the mistrust that has developed between the parties. Through a comparison between Ukrainian, Georgian, Moldovan and Turkish VLDs, it aims to highlight how the VLD could come to a successful conclusion.
Topic:: Human Rights, Migration, Rule of Law, Visa, and Liberalization
Political Geography:: Europe, Turkey, Ukraine, Moldova, Middle East, Georgia, and Mediterranean

15. Public Administration in the era of Covid-19: Policy Responses and Reforms underway

Author:: Manto Lampropoulou
Publication Date:: 06-2021
Content Type:: Working Paper
Institution:: Hellenic Foundation for European and Foreign Policy (ELIAMEP)
Abstract:: Covid-19 has caused an unprecedented shock to the state apparatus and has triggered major reforms in the administrative system of Greece. Policy responses to the pandemic have brought about several positive changes towards the modernization and de-bureaucratization of public administration. However, the pace and scale of change vary significantly. The pandemic has acted as a strong driver for the digital transformation of the public sector and the strengthening of e-government policies. Numerous administrative procedures were streamlined, digitalized and simplified, working conditions have become more flexible and several improvements have taken place in service delivery and state-citizen relations. The observed centralisation of decision-making and the often use of fast-track procedures have raised questions of democratic control, transparency and the rule of law, while the emergency measureshave been criticized for the threats they pose for the protection of citizens’ rights, individual liberties and personal data. A key challenge remains the integration the emergency measures of the covid-19 policy agenda into a longer-term programme of administrative reform in the post-covid era.
Topic:: Reform, Democracy, Rule of Law, Public Policy, Transparency, COVID-19, and Digital Policy
Political Geography:: Europe and Greece

16. The Lie Detector and the Stories about It: Narrative of the Fight against Organised Crime in the Function of Capturing the State

Author:: Marija Pavlovic, Bojan Elek, and Milos Jovanovic
Publication Date:: 03-2021
Content Type:: Commentary and Analysis
Institution:: Belgrade Centre for Security Policy
Abstract:: How the narrative of the fight against organised crime is used to capture the state? Find out in the latest BCSP analysis. The objective of this report is to analyze the narrative of the fight against organised crime, i.e., the story the authorities are offering the public concerning this topic, for the purpose of establishing how it is used to capture the state. More precisely, the analysis attempts to explain how the polygraph was abused during the declared war on mafia to suspend judicial institutions, ‘cleanse’ some in the eyes of the public or criminalise others outside the statutory criminal procedure, and to identify the consequences of this approach to fighting organised crime. The so-called war on mafia officially began on 19 October 2020, when the President of Serbia used his Instagram profile to announce the final showdown between the state and organised crime. Set forth after a series of unsolved murders that had taken place on the streets of Serbian cities – characterised by experts mostly as mafia-style terminations – it initially looked like a marketing move that preceded the constitution of a new Government. Such understanding was supported by the fact that this was not the first time that government officials declared war on organised criminal groups. Former Minister of the Interior [MoI] declared a similar war almost four years earlier, under similar circumstances. One hero particularly stood out in this war. It was the lie detector, the omnipotent polygraph, used extensively in the previous months as the supreme arbiter of truth. Instead of lengthy court proceedings, complex investigations and obtaining evidence acceptable to the court, the polygraph was used by the highest state officials as a simple tool to directly prove to the citizens whether someone was telling the truth or lying, and to unmistakably determine guilt or innocence. Trials were replaced by media performances involving debates on who passed the lie detector test and who refused to take it, while politicians kept offering to be subjected to it or calling each other out for not doing the same thing, all in the name of the alleged fight against organised crime.
Topic:: Media, Rule of Law, Police, Judiciary, and Organized Crime
Political Geography:: Europe and Serbia

17. The Crime-Politics Nexus Entrapping The Balkans

Author:: Bojan Elek and Giorgio Fruscione
Publication Date:: 10-2021
Content Type:: Commentary and Analysis
Institution:: Belgrade Centre for Security Policy
Abstract:: We are presenting you the Dossier on organized crime in the Balkans, produced in cooperation between the Italian Institute for International Political Studies (ISPI) and Belgrade Centre for Security Policy. In some of the countries of the Western Balkans, criminal groups and political elites have grown increasingly interdependent. In particular, Serbia’s and Montenegro’s societies have suffered the most from these links. The two countries have long been considered frontrunners in the EU integration process, whose final completion, however, is difficult to foresee. Similarly, Albania’s EU negotiating process has also been delayed for years, in part because of the country’s role in global drug trafficking schemes. The crime-politics nexus is contributing to the erosion of the rule of law in several Balkan countries, where the risk – or reality – of state capture is increasingly worrisome. In light of recent events, Serbia appears to be the most concerning case as its authoritarian drift currently seems hard to reverse. Which consequences does the situation in Serbia have on other Balkan countries? What impact does state capture have on regional stability? And what is changing for the region’s integration prospects with the EU?
Topic:: Security, Crime, Rule of Law, Organized Crime, and State Capture
Political Geography:: Europe and Serbia

18. 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

19. 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

20. 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

21. 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

22. 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

23. Rule-Bending Debates in Recent Finnish EU Policy: Pacta Sunt Servanda?

Author:: Saila Heinikoski
Publication Date:: 02-2021
Content Type:: Policy Brief
Institution:: Finnish Institute of International Affairs
Abstract:: The Finnish EU policy line has traditionally been adaptable and compromise-seeking, but recent examples related to the rule-bending of EU law reveal some new tendencies. Finland has stood out from the European mainstream in several cases that relate to the rule-bending of EU law in three different ways: rule-bending by others, collective rule-bending, and its own rule-bending. First, intervening in rule-bending by others has found support in Finnish EU policy. Finland prioritized the rule of law in its 2019 Council presidency, as well as in the Government Report on EU policy published on 28 January 2021. Second, alleged collective rule-bending seems to be linked to the threat of federalism. In negotiations on the recovery and resilience facility in 2020, there was a wide domestic debate on whether the result was consistent with the traditional interpretation of EU treaties. Third, Finland’s own rule-bending of the Schengen Border Code’s six-month limit for internal border controls during the Covid-19 crisis seems to have been quietly accepted, with the Interior Minister acknowledging the existence of an “illegal state of affairs”.
Topic:: Regional Cooperation, Treaties and Agreements, European Union, Rule of Law, Regionalism, and Federalism
Political Geography:: Europe and Finland

24. Gender-responsive Budgeting in Tanzania

Author:: Bertha O. Koda and Lilian V Mtasingwa
Publication Date:: 12-2021
Content Type:: Research Paper
Institution:: Oxfam Publishing
Abstract:: The Constitution and laws of the United Republic of Tanzania require the use of gender-responsive budgeting (GRB) to promote gender-balanced and integrated national economic plans. It is at the village level where community budget needs are identified, though women’s needs are often marginalized. Although women are best at articulating their needs, their voices are seldom raised owing to limited representation. Government budgets typically sideline the needs of small-scale female farmers for access to land, markets, credit, and extension services, especially compared with male farmers. Instead, budgets designed to address general farmers’ needs, such as markets and loans for inputs and storage for surplus harvests, are directed primarily to farmers who grow strategic crops, who are mainly men. Tanzania provides for a separate budget facility for women and youth, and although most interviewees from the grassroots and the government consider this as evidence of a gender budget, it reflects a limited knowledge of GRB. Some projects supported by nongovernmental organizations and civil society organizations reflect women’s and men’s diverse needs, a feature that government budgeting should emulate. Communities need to be empowered to challenge constraints to their participation in decision making on budgets related to their priority needs. Citizens must be involved in all phases of the budget process and cycle. Government officials and institutions must be provided with adequate GRB knowledge and skills so they can use available democratic systems and structures to empower communities to engage in GRB.
Topic:: Governance, Rule of Law, Diversity, and Gender
Political Geography:: Africa and Tanzania

25. 2023: Turning Moment for European Energy Policy toward Balkans and the European Promotion of the Rule of Law

Author:: Aleksandar Kovacevic
Publication Date:: 09-2021
Content Type:: Policy Brief
Institution:: Institute for Development and International Relations (IRMO)
Abstract:: The year 2023 is likely to bring congruence of events that may cause a “perfect storm” of breaking down security of energy supply, fragile political stability in the Balkans and its unsustainable social contract. As the region grows fragmented from mid-1960’s till nowadays, very few economic forces remain the EU than among themselves. The terms of trade favor imports against exports. After 20 years of infrastructure development and integration efforts, with support of donors and creditors, despite small improvements; Logistic Performance Index (LPI) for the Balkan countries remains slightly over half of best performers such as Germany. Port resources in place that may cause such impact to entire region in the given moment of time. Cross border trade in goods and services is negligibly small. Countries trade more with the rest of are not allocated in line with the commercial practice. That is not good enough for the region that links Mediterranean with the landlocked Danube area. Travel time along major railway routes (Zagreb – Belgrade or Belgrade -Bar) are twice longer than during 1980’s. Belgrade Port, that is the key destination for transport with all sea ports in the region is constrained by the city planning and kept below minimum throughput to be reported in European inland port statistics. Croatia, Montenegro or Albania, are hardly in position to engage into trade as their ports operate far below competitive thresholds. The transactions are prohibitively expensive.
Topic:: Energy Policy, International Cooperation, Infrastructure, European Union, and Rule of Law
Political Geography:: Europe and Balkans

26. Rebuilding Constitutionalism and Rule of Law in Zimbabwe

Author:: Stephen Buchanan-Clarke and Sikhululekile Mashingaidze
Publication Date:: 08-2021
Content Type:: Policy Brief
Institution:: Good Governance Africa (GGA)
Abstract:: Recommendations to the Zimbabwean government Commit to a new, inclusive pathway for a mediated, citizen-centred national dialogue to align with and enact the principles set out in the Zimbabwe Constitution of 2013, to resolve the current constitutional crisis and legitimacy question. Comprehensive legal, political, and economic reform is critical. Commit to the drafting and passing of a comprehensive electoral law consistent with the 2013 Constitution that guarantees the independence of the Zimbabwe Electoral Commission (ZEC), allows for the appointment of an independent ZEC chair from outside of Zimbabwe, and prevents government from interfering with the work of the commission. Ensure a comprehensive delimitation exercise, extend the voter registration process, and ensure there is a transparent and comprehensive verification process to develop a credible voters’ roll. This would include allowing independent interested stakeholders from civil society, the media, and opposition parties access to inspect the voters’ roll prior to elections. Promote a free and fair election campaign environment for all players, and actively guard against voter intimidation by establishing a special body to investigate complaints of political violence and allow external independent observers early access to all voting stations prior to election day. Restore independence and citizen trust in the county’s public institutions through, for example, the institution of an independent and impartial judicial committee tasked with restoring judicial independence and making recommendations for complete judicial reform, to eradicate judicial corruption, ensure the independence of judges and improve the functioning of the courts. End partisanship in the police force, starting with undertaking investigations into allegations of human rights violations against the Zimbabwe Republic Police (ZRP) and other security sector agencies, and ensuring those responsible for such abuses are held accountable under the law.
Topic:: Government, Human Rights, Reform, Elections, Constitution, Rule of Law, Police, and Inclusion
Political Geography:: Africa and Zimbabwe

27. Kosovo Security Barometer Special Edition on Corruption, Rule of Law and Police integrity in Kosovo

Author:: Shpat Balaj
Publication Date:: 02-2021
Content Type:: Special Report
Institution:: Kosovar Centre for Security Studies (KCSS)
Abstract:: The first section introduces the level of trust expressed by respondents on the relevant institutions (justice, security and municipal institutions), as well as the direct contact of the surveyed respondents with these institutions during 2018. Similar to previous years, security institutions are leading when it comes to public trust when compared to other institutions analysed in this special edition. The second section of the report interprets key security threats and risks in Kosovo. Given that corruption has been ranked as the highest problem to Kosovo’s national security, this section is focused on views of respondents towards corruption in the relevant institutions. Apart from general interpretation of data on corruption in Courts, Prosecution, Kosovo Police and Municipalities, the report offers cross-tabulated data analysis based on regions, rural/urban areas, gender balance, and ethnic composition of respondents for all targeted institutions. While, the third or final section of the report provides a detailed interpretation of open-ended and closed-ended questions of the 2018 survey of Kosovo Security Barometer on main issues harming police integrity in Kosovo. Accordingly, results presenting opinions of respondents on corruption within sectors of the Kosovo Police mirror a better understanding on what are the most and the least corrupted police sectors in Kosovo. Furthermore, data analysis through cross-tabulated results (based on regions, areas, gender balance, and ethnic background) provides an exhaustive elaboration of respondents’ attitudes towards police corruption in Kosovo. Given that the Kosovo Security Barometer’s survey was conducted in the second half of 2018 (September-October 2018), thus it does not reflect some of the developments that have occurred from November 2018 to March 2019.
Topic:: Security, Corruption, Rule of Law, and Police
Political Geography:: Eastern Europe and Kosovo

28. 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

29. Protection, Justice, and Accountability: Cooperation between the International Criminal Court and UN Peacekeeping Operations

Author:: Shilpa A. Venigandla
Publication Date:: 05-2021
Content Type:: Policy Brief
Institution:: International Peace Institute
Abstract:: Most countries that host UN peacekeeping operations face an impunity gap. Their national courts often lack the capacity to prosecute international crimes such as genocide, crimes against humanity, war crimes, and grave violations of human rights. As a result, special or hybrid courts and international courts, like the International Criminal Court (ICC), often have to step in. In such contexts, some UN peacekeeping operations have been mandated by the UN Security Council to support justice, fight impunity, and pursue accountability, mainly in support of national justice mechanisms. This issue brief focuses on cooperation between UN peacekeeping missions and the ICC. After discussing the impunity gap when it comes to international criminal justice, it outlines frameworks that provide a foundation for cooperation between the ICC and the Security Council. It then explores the benefits of cooperation and the political barriers and conflict dynamics that have prevented UN peacekeeping operations from fully assisting the ICC. The paper concludes by considering how the protection of civilians (POC)—particularly the establishment of a protective environment—could provide opportunities for cooperation between peacekeeping operations and the ICC in pursuit of a more coherent approach to international justice. Given that international justice reinforces protection mandates, POC could serve as a guiding principle for peace operations’ future support to international criminal justice. By reflecting and building on best practices and lessons learned from previous challenges, peacekeeping operations can more effectively pursue international justice and ensure the sustainability of their protection efforts.
Topic:: United Nations, Peacekeeping, Rule of Law, Accountability, Justice, and International Criminal Court (ICC)
Political Geography:: Global Focus

30. Judicial Independence in Afghanistan: Legal Framework and Practical Challenges

Author:: Shoaib Timory
Publication Date:: 02-2021
Content Type:: Policy Brief
Institution:: Afghanistan Research and Evaluation Unit (AREU)
Abstract:: In a government with a separation of powers, independence is an indispensable feature of the judiciary. An independent judiciary gives credibility to political systems and is also the force behind reinforcing democracy and the rule of law. This watching brief briefly maps out the existing legal framework that ensures the independence of the judicial branch in Afghanistan and the reasons for the weak utilis ation of this feature which puts the judiciary in an uneven position compared to the other two branches of government. Moreover, the watching brief presents a set of recommendations for the enhancement of judicial independence in the country.
Topic:: Democracy, Rule of Law, Judiciary, and Independence
Political Geography:: Afghanistan and Middle East

31. Exploring avenues in the EU’s rule of law crisis: What role for the Netherlands?

Author:: Luuk Molthof, Nienke van Heukelingen, and Giulia Cretti
Publication Date:: 08-2021
Content Type:: Policy Brief
Institution:: Clingendael Netherlands Institute of International Relations
Abstract:: Despite the existence of an extensive ‘rule of law toolbox’, the EU has found it difficult to deal with rule of law issues. Many experts attribute the EU’s failure to act to a lack of political will and determination on the part of EU institutions and member states. However, not all actors are lacking in political will (equally). The Netherlands, for instance, has been very concerned about the erosion of the rule of law inside the EU and has been one of the more active member states – along with, for instance, Belgium, Finland, Sweden and Denmark – in trying to address the EU’s rule of law crisis. In this policy brief, we examine three possible avenues available to the Netherlands to strengthen the political will of EU institutions and (like-minded) peers to assertively address this crisis and to increase pressure on backsliding member states to safeguard the rule of law.
Topic:: European Union, Democracy, Rule of Law, and Institutions
Political Geography:: Europe, Finland, Belgium, Denmark, Sweden, and Netherlands

32. Rule of Law Diplomacy: Why the EU Needs to Become More Vocal in Georgia, Moldova, and Ukraine

Author:: Laura Gelhaus, Pavel Havlíček, and Stefan Meister
Publication Date:: 07-2021
Content Type:: Policy Brief
Institution:: German Council on Foreign Relations (DGAP)
Abstract:: Supporting the rule of law has been central to the EU’s Eastern Partnership (EaP) policy since 2009. There has been very limited success in this, however. The EU’s core problem is what is usually its strength: addressing a highly politicized area through a technical approach. EU policymakers need to acknowledge that their political silence is permitting ruling elites in EaP countries to block progress in the rule of law and that the EU is failing to call out pervasive systems of informality there.
Topic:: Diplomacy, European Union, Partnerships, and Rule of Law
Political Geography:: Europe, Ukraine, Moldova, Georgia, and United States of America

33. Protecting checks and balances to save the Rule of Law

Author:: Eric Maurice
Publication Date:: 04-2021
Content Type:: Policy Brief
Institution:: Robert Schuman Foundation (RSF)
Abstract:: For half a decade, the Polish government has been reshaping the country's judicial system in a process described by the European Union as a "threat to the rule of law". Despite numerous Council of Europe reports and resolutions, several infringement proceedings and decisions of the Court of Justice of the European Union (ECJ), and the unprecedented activation of the so-called Article 7 procedure of the Treaty on European Union (TEU), the transformation of the judiciary into relays of political power has continued and accelerated since the Law and Justice Party (PiS) won a new term in 2019 and the reelection of President Andrzej Duda in 2020, pushing Poland to the limits of the European legal order.
Topic:: Government, European Union, Courts, and Rule of Law
Political Geography:: Europe and Poland

34. “No Going Backward”: Afghanistan’s Post–Peace Accord Security Sector

Author:: Annie Pforzheimer, Andrew Hyde, and Jason Criss Howk
Publication Date:: 03-2021
Content Type:: Special Report
Institution:: United States Institute of Peace
Abstract:: Failure to plan realistically for needed changes in Afghanistan’s security sector following a peace settlement—and failure to start phasing in changes now—will lead to post-settlement instability. This report examines the particular challenges Afghanistan will face, with examples from the climate following peace settlements in other parts of the world offering insight into what may occur and possibilities for response. An Afghan-owned and Afghan-led strategy that incorporates some of this report’s recommendations can help create a lasting foundation for Afghan and regional stability.
Topic:: Security, Political stability, Rule of Law, Peace, and Justice
Political Geography:: Afghanistan and South Asia

35. Extending Constitutional Rights to Pakistan’s Tribal Areas

Author:: Umar Mahmood Khan, Rana Hamza Ijaz, and Sevim Saadat
Publication Date:: 04-2021
Content Type:: Special Report
Institution:: United States Institute of Peace
Abstract:: When Pakistan’s Federally Administered Tribal Areas were officially merged into Khyber Pakhtunkhwa Province in May 2018, the five million residents of the former tribal areas acquired the same constitutional rights and protections—including access to a formal judicial system—as Pakistan’s other citizens. This report, based on field research carried out by the authors, explores the status of the formal justice system’s expansion, finding both positive trends and severe administrative and capacity challenges, and offers recommendations to address these issues.
Topic:: Security, Rule of Law, Justice, and Tribes
Political Geography:: Pakistan and South Asia

36. The rule of law in Poland or the false argument about the primacy of European law

Author:: Eric Maurice, Emilie Malivert, and Ana Pasturel
Publication Date:: 11-2021
Content Type:: Policy Brief
Institution:: Robert Schuman Foundation (RSF)
Abstract:: On 24 November, the Polish Constitutional Tribunal ruled that the European Convention on Human Rights was partially incompatible with the country's constitution. In July and October, it had issued similar rulings on the Treaty on European Union (TEU). This double decision comes as the European Commission suspended the approval of Poland's €36 billion recovery plan, including €23.9 billion in EU grants, due to concerns about the rule of law. On 19 November, the Commission also sent a letter to the Polish government as a prelude to the launch of a procedure that could lead to the suspension of EU funds under the budgetary conditionality regulation. The confrontation between the Polish government and the European institutions, primarily the Commission and the European Court of Justice, has been presented by the Polish government as a struggle of principle between the primacy of European law, which was allegedly being imposed excessively on Member States, with "the national legal order and the supreme force of the Constitution” being under threat. The Polish Prime Minister, Mateusz Morawiecki, explained that the implementation of EU law, as requested by the CJEU, would lead to "a fundamental lowering of the constitutional standards of judicial protection of Polish citizens, and unimaginable legal chaos". Beyond the grandstanding and responses in support of an effort to defend the sovereignty of peoples, it appears that the weakening of these constitutional norms in recent years in Poland is precisely what has led the Constitutional Tribunal to partly denounce the TEU (European Union) and the European Convention on Human Rights (Council of Europe), and that the quarrel over the primacy of European law is essentially a smokescreen to hide this situation.
Topic:: Human Rights, Sovereignty, Constitution, Rule of Law, Institutions, and Norms
Political Geography:: Europe and Poland

37. Non-Consensual Intimate Image Distribution: The Legal Landscape in Kenya, Chile and South Africa

Author:: Michelle Bordachar, Nonhlanhla Chanza, Kailee Hilt, Carlos Lara, Emma Monteiro, and Grace Mutung'u
Publication Date:: 06-2021
Content Type:: Working Paper
Institution:: Centre for International Governance Innovation
Abstract:: The non-consensual distribution of intimate images, colloquially referred to as “revenge pornography” or “image-based sexual abuse,” is an unforgiving reality that continues to plague the lives of many within the current digital landscape. It alludes to the non-consensual distribution of photos or videos depicting nudity, partial nudity or sexually explicit acts. This paper provides an overview of the state of the law, both existing and proposed, in three countries in the Global South — Kenya, Chile and South Africa — as it relates to the non-consensual distribution of intimate images. It was prepared under the overall coordination of CIGI’s Kailee Hilt and Emma Monteiro, who also wrote the introduction and conclusion. The three case studies were written by leading experts from Kenya, Chile and South Africa. The authors discuss current and proposed legislation in response to non-consensual intimate image distribution, while also sharing recommendations for further action to address this growing form of gender-based violence within the digital sphere. On June 24, 2021, CIGI held a panel discussion on this topic moderated by Ruhiya Seward, senior program officer at the International Development Research Centre. Grace Mutung’u, Michelle Bordachar and Nonhlanhla Chanza, experts who contributed the case studies in the paper, spoke about this issue as it pertains to Kenya, Chile and South Africa, respectively, and offered recommendations and road maps for further action within the existing landscape.
Topic:: Rule of Law, Sexual Violence, Judiciary, Digital Culture, and Digitization
Political Geography:: Kenya, Africa, South Africa, South America, and Chile

38. 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

39. Zuma Goes to Jail: Implications for Rule of Law, Democracy, and Governance in South Africa

Author:: Peter SAKWE MASUMBE
Publication Date:: 12-2021
Content Type:: Working Paper
Institution:: The Nkafu Policy Institute
Abstract:: There is a great silver lining in the quest for popular confidence in applying the rule of law, democracy, and governance processes in Africa’s politico-economic and socio-cultural landscapes, despite several setbacks occurring in several African countries today. In South Africa, the Constitutional Court recently found former president Zuma guilty of contempt of court and landed him a 15-month prison sentence, which is irrefutably a historic judgment in the annals of African politics. This judgment is loaded with several lawful and legitimate inferences for the continent’s democracies, rules of law, governances, and leadership. But can this judgment deter other African political leaders and apparent heavyweights in the governing processes from impunity? No matter the answer to this question, this judgment serves to remind Africans that human development in terms of applying democratic principles in the continent is gaining ground through the judiciary. Therefore, the African Union, with its Malabo’s Protocol and its envisaged creation of an African Court of Justice, reminiscence of the International Court of Justice, should re-examine itself, especially in the Protocol’s clause, which provides immunity to serving or former heads of state. This historical judgment pronounced by Acting Chief Justice Sisi Khampepe, signifies, in his words, “…A mission to share knowledge, rules of governance and democracy, in a lofty and lonely work of the judiciary, as an independent arm of government, impervious to public commentaries, and political rhetoric, to uphold and apply the Constitution and the law, no matter whose guts it is.” Ostensibly, in Africa, hardly has a court lower or higher, passed a safeguarding sentence, still less on a former president – civilian or military; whose governance was serenely investigated and found wanting. Necessarily, this judgment is unique, which an African court had to make, as deterrence to other African leaders.
Topic:: Civil Society, Democracy, Rule of Law, and Illegal Behavior
Political Geography:: Africa and South Africa

40. History and identity should not blight the EU’s enlargement policy towards the Western Balkans

Author:: Erwan Fouéré
Publication Date:: 05-2021
Content Type:: Working Paper
Institution:: Centre for European Policy Studies (CEPS)
Abstract:: The EU must reject any attempt to introduce notions of history and identity into its enlargement policy. Otherwise it risks trampling on its 70 years of experience in overcoming the legacy of the past and promoting a peace project based on reconciliation and the rule of law. Yet this is precisely what is happening with Bulgaria’s veto against the opening of EU accession negotiations with North Macedonia. In March of last year the European Council gave the green light for the opening of accession negotiations with Albania and North Macedonia. A date for the first intergovernmental conference to formally launch the negotiations with both countries remains – unfortunately, out of sight.
Topic:: History, European Union, Rule of Law, Regional Integration, Identity, and Regional Politics
Political Geography:: Europe, Bulgaria, Balkans, Albania, and North Macedonia

41. Detecting the Ideological Position of Political Islam Towards Liberal Democracy in Muslim Countries

Author:: Nikola Gjorshoski and Goran Ilik
Publication Date:: 01-2020
Content Type:: Working Paper
Journal:: Journal of Liberty and International Affairs
Institution:: Institute for Research and European Studies (IRES)
Abstract:: The question of the correlation between Islam, political Islam, and liberal democracy has so far been the most exposed topic in exploring the democratic capacity of political Islam and Islamic societies in general. What is particularly intriguing about the relationship between political Islam and liberal democracy is the fact of its westernized triviality that has received a pejorative tone in Islamic political circles. Simplified, the triviality of liberal democracy for the Islamic political campus implies imposing a model of democracy that cannot be fully compatible with the original Muslim notion of society and government. Hence, the following paper analyzes exactly the relations of political Islam to specific inherent categories of liberal democracy such as the rule of law, representative government, the separation of powers, and secularism as diferenta specifica of liberal western democratic discourse. Through the methods of induction and deduction, the author will illustrate how appropriate tangent or divergence is illustrated and how this is reflected in the general ideological positioning of political Islam towards liberal democracy in Muslim countries through an axiological and praxeological perspective.
Topic:: Democracy, Rule of Law, Islamism, Liberalism, Secularism, and Sharia
Political Geography:: Middle East, North Africa, and Global Focus

42. Protection through Policing: The Protective Role of UN Police in Peace Operations

Author:: Charles T. Hunt
Publication Date:: 02-2020
Content Type:: Policy Brief
Institution:: International Peace Institute
Abstract:: Since first deployed in 1960, United Nations police (UNPOL) have consistently been present in UN missions and have become increasingly important to achieving mission objectives. Since 1999, these objectives have often included the protection of civilians (POC), especially in places like the Central African Republic, Darfur, the Democratic Republic of the Congo, Mali, and South Sudan. But despite its rise in prominence, the protective role of UNPOL is generally undervalued and regularly overlooked, and missions have tended to overly rely on militarized approaches to POC. This report examines the roles and responsibilities of UNPOL regarding POC. It outlines UNPOL’s contributions to POC and perceived comparative advantages, using examples of their role as compeller, deterrent, partner, and enabler. It also identifies and draws lessons from challenges to police protection efforts, including ambiguous mandates, policies, and guidance; poor coordination; problematic partnerships; and deficits in capabilities, capacities, and tools. Drawing on these lessons from past and current deployments, the report proposes recommendations for how member states, the Security Council, the UN Secretariat, and field missions can improve UNPOL’s efforts to protect civilians going forward. These recommendations include: Clarifying the role of UN police in POC through mandates, policies, guidance, and training to align the expectations of UN peace operations, the Secretariat, and member states for what UNPOL are expected to do; Involving all UN police in POC and giving them a voice in decision making and planning to infuse whole-of-mission POC efforts with policing perspectives and empower UNPOL to act more readily; Enhancing partnerships between UN police, host states, and other mission components to enable more responsive, better coordinated, and more comprehensive approaches to POC; and Providing more appropriate and more flexible capabilities, capacities, and tools to address critical capabilities gaps and adapt existing resources to better meet UNPOL’s latent potential for POC.
Topic:: Security, United Nations, Peacekeeping, Reform, Rule of Law, Civilians, and Police
Political Geography:: Africa, Darfur, Mali, South Sudan, Central African Republic, and Congo

43. The Rule of Law and its Social Reception as Determinants of Economic Development. A Comparative Analysis of Poland and Germany

Author:: Christopher Hartwell, Kateryna Karunska, Krzysztof Głowacki, and Maria Krell
Publication Date:: 11-2020
Content Type:: Special Report
Institution:: Center for Social and Economic Research - CASE
Abstract:: The rule of law, by securing civil and economic rights, directly contributes to social prosperity and is one of our societies’ greatest achievements. In the European Union (EU), the rule of law is enshrined in the Treaties of its founding and is recognised not just as a necessary condition of a liberal democratic society, but also as an important requirement for a stable, effective, and sustainable market economy. In fact, it was the stability and equality of opportunity provided by the rule of law that enabled the post-war Wirtschaftswunder in Germany and the post-Communist resuscitation of the economy in Poland. But the rule of law is a living concept that is constantly evolving – both in its formal, de jure dimension, embodied in legislation, and its de facto dimension, or its reception by society. In Poland, in particular, according to the EU, the rule of law has been heavily challenged by government since 2015 and has evolved amid continued pressure exerted on the institutions which execute laws. More recently, the outbreak of the COVID-19 pandemic transformed the perception of the rule of law and its boundaries throughout the EU and beyond (Marzocchi, 2020). Against this background, this study examines the rule of law as a determinant of economic development in Germany and Poland from both the de jure and de facto perspectives.
Topic:: Economic Growth, Rule of Law, Trade, and Economic Development
Political Geography:: Europe, Poland, and Germany

44. Democracy under siege: Advancing cooperation and common values in the Indo-Pacific

Author:: Kharis Templeman
Publication Date:: 01-2020
Content Type:: Policy Brief
Institution:: Atlantic Council
Abstract:: Over the past three decades, democracy has put down roots in many seemingly unlikely places across Asia, from Mongolia to Indonesia. At a time when democracy is in global retreat, the majority of these Asian regimes have demonstrated surprising resiliency, though many continue to suffer from glaring flaws: weak state capacity and accountability institutions, the absence of impartial rule of law, and uneven protection of political rights and civil liberties. This issue brief, “Democracy under Siege: Advancing Cooperation and Common Values in the Indo-Pacific,” by Dr. Kharis Templeman, examines challenges and opportunities for advancing cooperation and common values in the Indo-Pacific as the region faces an increasing challenge from China.
Topic:: Civil Society, Corruption, Diplomacy, International Organization, Politics, Reform, Elections, Democracy, Rule of Law, Norms, and Transition
Political Geography:: Japan, China, Taiwan, East Asia, Asia, Australia, Korea, and Indo-Pacific

45. 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

46. Towards a More Principled European China Policy?

Author:: Stephan Frühling
Publication Date:: 11-2020
Content Type:: Special Report
Institution:: Institut français des relations internationales (IFRI)
Abstract:: Promoting political values (democracy, human rights and the rule of law) in China is a colossal undertaking, but the EU could be more effective than we think. To do so, it must act strategically, in unity, and in concert with like-minded partners. It must also strengthen its record of upholding political values and reform its procedures for foreign policy decision-making. On 30 June 2020, China adopted a National Security Law for the Hong Kong Special Administrative Region that not only undermines human rights and the rule of law that were promised to its citizens, but also violates international law. A few weeks before, when China’s intention became public, the European Union reacted cautiously, expressing concern but clarifying that the introduction of the law would not adversely affect its relations with China. The EU’s first reaction fell far short of statements released by the United States, the United Kingdom and Australia, among others. But the EU’s reaction grew more critical over time. The first EU institution to adopt a tougher approach was the European Parliament. Shortly after, the European Commission and – to a lesser extent – the European Council followed with statements by its presidents after the EU-China summit held on 22 June 2020. This episode could turn out to be exemplary for the role of political values in the European Union’s relations with China. China and Europe have fundamentally divergent political values, even though they often use the same terminology. For a long time, many Europeans believed that China’s definition of democracy, human rights and the rule of law –, the three constitutive values enshrined in the Treaty of the European Union – would ultimately converge with the European understanding. This has not turned out to be the case. China is growing more self-confident, not only defending but starting to spread its own definitions of the triad of political values. This comes at a time when the EU is realigning its China policy more generally. The new European Commission strives to be a “geopolitical” entity strategically engaging to achieve concrete results in its bilateral relations with China. The starting point of this shift is the 2019 “Strategic Outlook” developed by the European External Action Service, which defines China not only as a “partner”, but also a “competitor” and a “systemic rival”. On political values, China clearly is a “systemic rival”. The crucial question is whether “systemic rivalry” in the field of political values carries implications for other policy fields in which the EU and China are partners or competitors. A general consensus that the EU should adopt a more principled China policy and defend and promote its political values spells out very differently across EU institutions. By institutional design, the European Council is a pragmatic rather than principled institution. Compromise resulting from bargaining among member states with different interests shapes its approach. At the other end of the spectrum, the European Parliament serves a principled watchdog function, but has very limited competencies in foreign and security affairs. The European Commission strives to overcome the decades-old challenge of policy silos resulting from its fragmented institutional structure and the more than 60 sectoral dialogues with China. This carries the potential to turn more principled. However, to this day it is not clear whether the European Commission will make the promotion of political values a policy priority even if this comes at the cost of economic cooperation. This paper outlines ongoing debates on the EU’s new China policy and the role of political values in it, and provides 25 concrete policy recommendations for a more principled China policy that defends and promotes democracy, human rights and the rule of law.
Topic:: Foreign Policy, Human Rights, Democracy, and Rule of Law
Political Geography:: China, Europe, and Asia

47. Security Sector Capture in Serbia – An Early Study

Author:: Predrag Petrovic and Jelena Pejic Nikic
Publication Date:: 02-2020
Content Type:: Commentary and Analysis
Institution:: Belgrade Centre for Security Policy
Abstract:: Report on state capture in Serbia is BCSP genuine and pioneering work aiming to document and deconstruct ongoing process of state capture in the security sector through presentation of mechanisms, actors and consequences of this process. For several years now, various international indexes have been measuring the stagnation and decline of democracy, the rule of law and fundamental freedoms in Serbia. Although the country is still formally in the process of European integration, the European Commission noticed back in 2018 that there are elements of state capture in the entire Western Balkans region. Due to the significance and ubiquity of this phenomenon in Serbia, the BCSP has embarked upon a pilot research project that aims to establish the main factors and conditions, as well as the mechanisms and actors, involved in state capture in the security sector. The capturing of the police, the security services and the defence sector in Serbia is analysed in this early study. Furthermore, it was necessary to situate the analysis in the country’s political context, and special chapters cover parliamentary oversight and control and the security sector financing. The research was conducted from May 2019 to April 2020 and is based on insights gleaned from both primary and secondary sources.
Topic:: Security, Regional Cooperation, Democracy, Rule of Law, and Regional Integration
Political Geography:: Europe and Serbia

48. The Impact of Disintegration Dynamics on EU Trade Policy: An Institutional Analysis

Author:: Konstantinos J. Hazakis
Publication Date:: 12-2020
Content Type:: Working Paper
Institution:: Centre for Global Political Economy, University of Sussex
Abstract:: Safeguarding access to international markets requires an effective EU international trade policy. Equally important, preserving an open, rules-based world trading system presupposes strong EU capability as well as consensus of EU states on the scope and targets of EU international trade policy. The paper presents a policy oriented analytical framework of EU international trade policy taking into consideration the impact of disintegration dynamics and emerging trade protectionism. Initially, the analysis sets the problem while section two offers the major tenets of the politicization of EU international trade policy. Section three presents the key arguments of the institutional analysis on the issue while section four analyses the content of an alternative policy framework for understanding disintegration - EU trade policy interaction. Section five concludes and reaches useful policy implications. It is suggested that there is a need for more Europe on international trade meaning enhanced, effective and inclusive EU trade institutional action.
Topic:: International Trade and Finance, European Union, Global Markets, Rule of Law, and Trade Policy
Political Geography:: Europe

49. From Words to Deeds: Upholding the Rule of Law in the CEE Region

Author:: Camille Dobler
Publication Date:: 09-2020
Content Type:: Working Paper
Institution:: EGMONT - The Royal Institute for International Relations
Abstract:: With ongoing discussions on rule of law conditionality, and with the European Commission first Annual Rule of Law Report due soon, the focus on the rule of law is back at the top of the EU political agenda this autumn. As eyes turn to the latest political developments and threats to core EU principles and values in Central and Eastern Europe (CEE), this policy brief suggests switching from a top-to-top perspective to a societal approach to uphold the rule of law. This would go beyond recommendations to cleanse the rule of law toolbox from inefficient political instruments, and strengthen legal ones. In addition to introducing conditionality, this brief advocates for more active support of local civil societies in exercising their democratic prerogatives over electoral and representative democracy.
Topic:: Civil Society, International Cooperation, International Law, European Union, and Rule of Law
Political Geography:: Europe

50. Justice for All and the Public Health Emergency

Author:: David Steven and Maaike de Langen
Publication Date:: 04-2020
Content Type:: Policy Brief
Institution:: Center on International Cooperation
Abstract:: The COVID-19 pandemic is an unprecedented global emergency. It is not only a health crisis but also a human rights crisis. Justice actors face daunting responsibilities as they design, implement, and enforce new measures to prevent the spread of infection. Measures that heighten the risk of human rights abuses can undermine trust, at a time when the justice system most needs to maintain the public’s confidence. For better or for worse, justice systems and justice workers are on the frontline of this pandemic. This Pathfinders briefing, drafted by lead authors David Steven, Maaike de Langen, Sam Muller, and Mark Weston with the input of more than 50 justice experts from around the globe, discusses the most pressing priorities that the public health emergency poses for justice leaders and proposes seven areas for urgent action as the tide of infections continues to rise. It is the first in the Justice in a Pandemic series.
Topic:: Human Rights, Governance, Rule of Law, Crisis Management, Peace, and COVID-19
Political Geography:: Global Focus

51. Justice for All and the Economic Crisis

Author:: David Steven and Maaike de Langen
Publication Date:: 07-2020
Content Type:: Policy Brief
Institution:: Center on International Cooperation
Abstract:: The COVID-19 pandemic has triggered what may be the worst global recession since the Second World War—and the impact of this second-order crisis will be widespread, including in the justice sector. Access to justice has been affected by the public health response to the coronavirus, but it will also be challenged by the economic downturn. The first in this series—Justice for All and the Public Health Emergency set out recommendations for how justice systems and actors can respond to the health impacts of the pandemic. This second briefing now turns to the question of how the economic downturn will affect access to justice—and how justice systems and partners can play a role in the recovery. The briefing examines how the economic effects of COVID-19 impact common justice problems, and how justice systems can anticipate and innovate in response. It provides recommendations for how justice systems and actors can react nimbly to the pandemic’s effects, and look ahead for opportunities to build back better, reshaping justice systems so they can support more inclusive, sustainable, and resilient economies.
Topic:: United Nations, Global Recession, Rule of Law, Crisis Management, and COVID-19
Political Geography:: Global Focus

52. Networks of impunity: Corruption and European foreign policy

Author:: Chris Raggett
Publication Date:: 03-2020
Content Type:: Policy Brief
Institution:: European Council on Foreign Relations (ECFR)
Abstract:: European governments have failed to prevent corrupt actors from laundering hundreds of billions of dollars through the international financial system and their own economies. This breakdown in the rule of law empowers kleptocratic regimes across the globe, which capitalise on the political culture underpinning Europe’s approach to globalisation. Western governments create a negative feedback loop that hinders their foreign policy initiatives when they treat corruption in other countries as an inherent part of the local culture. European policymakers should aim to catch up with, and overtake, their US counterparts on anti-money laundering regulation and enforcement. European countries should create national institutions – and an international coalition of Western states – that are dedicated to countering kleptocrats.
Topic:: Foreign Policy, Corruption, European Union, Rule of Law, Financial Crimes, and Impunity
Political Geography:: Europe

53. EU MONITOR: The new Slovak government: An exemplary to the rest of the V4 amidst global crises?

Author:: Miroslava Pěčková
Publication Date:: 07-2020
Content Type:: Special Report
Institution:: Europeum Institute for European Policy
Abstract:: The results of Slovak presidential and European elections in 2019 indicated a political change in Slovakia, distancing itself from a twelve year-long dominance of ruling party SMER, which got embroiled in many corruption scandals throughout its reign. Firstly, the presidential elections in March 2019 appointed Zuzana Čaputová to President, defeating SMER´s candidate Maroš Šefčovič. She took hold of the office as an explicit advocate for multilateralism, anticorruption and a more liberal direction for the country, stating that her “main focus is to bring about change in Slovakia, and for Slovakia to be a reliable and predictable partner of the European Union”, while having an “inspirational effect” to other European countries in this regard1. Secondly, two months later, the coalition PS-SPOLU (whose former vice-president is Čaputová) noticeably won the elections to the European Parliament, with its programme promising a “real European Slovakia” and an intention to actively participate in the EU´s development and unity2. The coalition´s success marked another election lost by SMER in a row and subsequently offered the possibility of further political upheaval in the upcoming elections. The composition of the new government coalition arising from the 2020 Slovak parliamentary elections confirmed the change of political leadership in the country, thus bringing a potential for change as it consists of the parties of previous opposition and defined itself against its predecessor. This paper will analyse the new government´s programme and policies specifically pertaining to rule of law and green transformation vis-à-vis their feasibility in the context of contemporary developments. The COVID-19 pandemic influenced the beginning of the rule of the new government and is going to affect the real shape of its original political plans and reforms due to significant impact on Slovak economy. Moreover, the paper will reflect if these developments are likely to be significant in the Visegrad 4 context.
Topic:: Politics, Elections, European Union, Rule of Law, and COVID-19
Political Geography:: Eurasia, Eastern Europe, Czech Republic, and Slovakia

54. COMMENTARIES: State of the European Union address 2020

Author:: Katerina Davidova, Vít Havelka, Jana Juzová, Christian Kvorning Lassen, Danielle Piatkiewicz, and Zuzana Stuchlíková
Publication Date:: 09-2020
Content Type:: Commentary and Analysis
Institution:: Europeum Institute for European Policy
Abstract:: Experts from EUROPEUM Institute for European Policy comment on the State of the Union address (SOTEU) given by the President of the European Commission Ursula von der Leyen on 16 September 2020. Topics of the commentaries: Christian Kvorning Lassen: General Impressions – A Visionary Speech Challenged by Political Reality; Christian Kvorning Lassen: A Stronger European Health Union is Needed; Christian Kvorning Lassen: Migration – Ambitious rhetoric, dubious feasibility; Danielle Piatkiewicz: Multilateralism: Europe’s Call to Global Action – Taking the Lead; Kateřina Davidová: EU’s climate momentum not quashed by the pandemic as new target is presented; Jana Juzová: European Neighbourhoods – Vague Reassurances, Economy First; Zuzana Stuchlíková: Next Generation EU, Rule of Law and Conference on the Future of Europe; Vít Havelka: The EU and the UK fights over blame for Brexit fiasco
Topic:: Climate Change, Health, Migration, European Union, Multilateralism, and Rule of Law
Political Geography:: Europe

55. Sustainable Energy through Green bonds in India

Author:: Olaf Weber and Vasundhara Saravade
Publication Date:: 07-2020
Content Type:: Working Paper
Institution:: Gateway House: Indian Council on Global Relations
Abstract:: India’s energy future needs to be low-carbon, climate-resilient and protected against price fluctuation. It can meet these needs by investing in Canadian oil companies, given the country’s political stability and rule of law. India can also attract greater foreign direct investment at home through the issuance of green bonds, a climate finance debt instrument that addresses environmental and climate-related challenges. This paper explores the regulatory perspective of the green bond market.
Topic:: Climate Change, Energy Policy, Foreign Direct Investment, Rule of Law, and Renewable Energy
Political Geography:: South Asia, Canada, India, and North America

56. The Rule of Law in the EU Budget: Backing Down Is Too High a Price for the EU to Pay

Author:: Milan Nič, Roderick Parkes, Siawomir Sierakowski, and Shahin Vallée
Publication Date:: 11-2020
Content Type:: Policy Brief
Institution:: German Council on Foreign Relations (DGAP)
Abstract:: Hungary and Poland are threatening to veto the EU’s new budgetary arrangements if other governments apply the rule of law mechanism to them. It is becoming clear, however, that the new EU financial framework, and the much-heralded recovery fund, are more vital to Eastern Europe than to Europe’s South and that time is not on the side of the former. Awareness of this fact allows for a cool assessment of the pair’s bargaining positions – and of the precedent that any hasty resolution to the crisis will set.
Topic:: Government, Budget, European Union, and Rule of Law
Political Geography:: Europe and Eastern Europe

57. Poisoned heritage for the new Commission: The rule of law question

Author:: György Fóris
Publication Date:: 12-2019
Content Type:: Working Paper
Institution:: European Policy Centre (EPC)
Abstract:: The rule of law issue is not going anywhere anytime soon. The Polish and Hungarian governments will likely remain in power for years. Czech, Croat and some Romanian leaders seem impressed and ready to follow the paths Kaczyński and Orbán have paved. And Italy might not have seen the last of Matteo Salvini. Member states that increasingly question, ignore, or even attack previously agreed-upon policies, political priorities or common principles are becoming a regular occurrence within the Union, one that the new Commission will have to deal with. In this Discussion Paper, György Fóris finds that in an increasingly politicised Union, the design of the current rule of law mechanism is lacking. He argues it cannot function effectively on legal grounds alone as long as the existing Treaty foundations remain ambiguous and the final decision is taken at the political level, where it is the Council and not the Commission that is the decisive player. So the von der Leyen Commission will face a difficult choice: either try to live with all of the formal members of the Union, listening to and mediating between them, while continuing to defend the rules and values that were entrusted to it as the Guardian of the Treaty and thus preserve the EU’s unity. Or, take sides and lead an open political fight against those who seem to weaken the previously agreed interpretation of fundamental European rules and principles. Fóris, however, offers a third option: While not giving up on unity, likeminded and willing EU countries could intensify their level of cooperation, while formally retaining all parties within the framework of a larger (and looser) Community.
Topic:: Treaties and Agreements, European Union, and Rule of Law
Political Geography:: Europe, Poland, Romania, Hungary, Croatia, and Czech Republic

58. Egypt’s Consolidated Authoritarianism

Author:: Amr Hamzawy
Publication Date:: 09-2019
Content Type:: Research Paper
Institution:: Brown Journal of World Affairs
Abstract:: The current Egyptian political scene reveals an important paradox: since its ascendancy to power in 2013, the military-led authoritarian government has not faced significant challenges from civil society despite systematic hu- man rights abuses and continuous societal crises. Apart from limited protests by labor activists, student movements, and members of syndicates, Egyptians have mostly refrained from protesting, instead hoping that the government will improve their living conditions despite a rising poverty rate of 33 percent, an inflation rate between 11 and 12 percent, and unemployment at eight percent. This popular reluctance to challenge the authoritarian government has continued to shape Egypt’s reality since the collapse of the short-lived democratization process from 2011–2013.
Topic:: Authoritarianism, Democracy, Rule of Law, Protests, and Dictatorship
Political Geography:: Africa, Middle East, North Africa, and Egypt

59. Toward The End Of The Global War On Drugs

Author:: Khalid Tinasti
Publication Date:: 03-2019
Content Type:: Research Paper
Institution:: Brown Journal of World Affairs
Abstract:: Evidence indicates that the “war on drugs” has failed to achieve its stated objectives of eliminating or reducing the production, consumption, and trafficking of illegal drugs. In 2016, an estimated 275 million people used drugs globally, and the value of the drug trade is estimated at between US$426 and $652 billion, an increase from 208 million drug users and $320 billion of market turnover a decade ago.1 Furthermore, the war on drugs has created major negative unintended consequences impacting global development objectives: mass incarceration, a thriving illegal drug market, the spread of infectious diseases, urban violence, and human rights violations. These unintended consequences prompted a global movement to address the problems created by drug control policies, based on evidence that while drug use is harmful, harm can be mitigated with the right mix of policies.
Topic:: Crime, War on Drugs, Narcotics Trafficking, and Rule of Law
Political Geography:: Global Focus

60. A Court Worth Having? Growing Pains at the International Criminal Court

Author:: Tod Lindberg
Publication Date:: 05-2019
Content Type:: Special Report
Institution:: Georgetown Journal of International Affairs
Abstract:: The establishment of the International Criminal Court (ICC) in the Hague is a testament to liberal normative aspiration in international politics—the conviction that there should be a neutral juridical body, beyond the influence of the ebb and flow of political power among states, that is capable of holding the perpetrators of atrocities or aggression to account. Now, more than twenty years after the negotiation of the 1998 Rome Statute––the treaty establishing the court––and coming up on seventeen years since the ICC entered into force in 2002 with the ratification by sixty state-parties, one vexing question for proponents of international justice is that of how far beyond mere aspiration the court has managed to get.
Topic:: Politics, Rule of Law, Justice, and International Criminal Court (ICC)
Political Geography:: Yugoslavia, Rwanda, United States of America, and The Hague

61. Tyrannies of Majorities: A Conceptual Reassessment

Author:: Andreas Schedler
Publication Date:: 12-2019
Content Type:: Working Paper
Institution:: Kellogg Institute for International Studies
Abstract:: Since the invention of modern democracy, political theorists as well as practitioners have alerted us against the dangers of “majoritarian tyrannies,” whose substantive meaning, however, remains unclear and controversial. Many have also alerted us against the dangers of such alerts serving as rhetorical cover for antidemocratic elites. In this twin exercise of conceptual explication and reappraisal, I intend to both clarify the meaning and reevaluate the political role of the idea of majoritarian tyrannies. In the main part of the paper, I elucidate their internal structure and variance by discussing three logical presuppositions: (1) the performance of tyrannical acts, (2) the exclusive targeting of minorities, and (3) collective action by the majority. In the final part, I propose to revalue the concept as an instrument of horizontal accountability among citizens. Antipopulist rather than antidemocratic in nature, it allows the losers of majoritarian decisions to call their fellow citizens to account for the injustices they engender.
Topic:: Human Rights, Culture, Democracy, Citizenship, and Rule of Law
Political Geography:: Global Focus

62. Better Protection of the Rule of Law – or of European Taxpayers’ Money

Author:: Tamás Lattmann
Publication Date:: 11-2019
Content Type:: Policy Brief
Institution:: Institute of International Relations Prague
Abstract:: The rule of law holds great importance to the EU, as it also should to its member states and improving its protection has become a focus of new legislative efforts. Will this proposed regulation be useful and effective tool added to EU’s legislation or will it do the opposite and hurt the member state governments? The author focuses on already existing procedures and their deficiencies and compares them to the current proposal while also shedding light on the background of the new legislation. The reflection addresses some of the questions that may be raised related to EU law, member state sovereignty and its possible effects. The regulation still has a long way to go to become a law and in or order for that to happen it needs to be accepted by the Council. The author lists potential scenarios that could occur in the process of the law’s adoption and explains the legislative procedures.
Topic:: Rule of Law, Tax Systems, and European Parliament
Political Geography:: Europe

63. The Rule of Law: A Critical Building Block for Good Governance and Economic Growth

Author:: Conor M. Savoy
Publication Date:: 06-2019
Content Type:: Working Paper
Institution:: Center for Strategic and International Studies
Abstract:: The rule of law plays a critical role in the functioning of a well-governed, stable country. Not only does it help to provide transparent and accountable governance and protection of minority and human rights, it is also necessary to create the conditions for private sector-led growth, job creation, and attracting foreign investment. It should come as no surprise that five of the eleven indicators used by the World Bank in its annual Doing Business report are related to the strength of legal institutions; without strong, impartial legal institutions and respect for the rule of law, private sector actors—local and foreign—cannot make the investments needed to grow economies and create employment opportunities.1 Rule of law, though, remains an area of limited investment by donors. Part of this stems from an overall lack of attention on good governance, but it also comes from a sense that genuine reform requires significant involvement in local politics, which is something that many donors have traditionally sought to avoid. There does, however, seem to be a window of opportunity to reexamine good governance and, by extension, the rule of law. Since the adoption of the Sustainable Development Goals (SDGs) in 2015, there have been several shifts that have created such an opening. First, the SDGs included Goal 16: Peace and Security that explicitly endorsed the need for good governance, rule of law, and strong institutions. SDG 16 represents a strong commitment on the part of the international community to supporting the creation of transparent and accountable governing institutions. Second, the 2015 Financing for Development conference held in Addis Ababa elevated the importance of domestic resource mobilization and private sector investment in creating sustainable sources of development finance.2 While strong rule of law is not sufficient on its own to mobilize these two pools of capital, it is necessary to ensure that countries can effectively utilize their own resources and investors can commit private capital securely. Third, USAID has launched a new policy framework called the Journey to Self-Reliance, which seeks to move developing countries along a path toward sustainability and off foreign assistance.3 Critical to USAID’s Journey to Self-Reliance is a country’s commitment and capacity—two areas that will require significant strengthening of governance and rule of law.
Topic:: Human Rights, Governance, Economic Growth, and Rule of Law
Political Geography:: Global Focus

64. Systems Thinking for Peacebuilding and Rule of Law (French) (Penseé Systémique Pour la Consolidation de la Paix et L’état de Droit en Soutien de Réformes Complexes dans des Environnements Touchés par les Conflits)

Author:: Philippe Leroux-Martin and Vivienne O'Connor
Publication Date:: 08-2019
Content Type:: Policy Brief
Institution:: United States Institute of Peace
Abstract:: Ce rapport invite les spécialistes oeuvrant à la consolidation de la paix à intégrer les principes de la pensée systémique et de la théorie de la complexité dans la façon dont ils conçoivent, mettent en oeuvre et évaluent leurs interventions. En se fondant sur les études réalisées au cours des dix dernières années à l’USIP et en s’appuyant sur la littérature d’autres domaines – comme le développement organisationnel, le management situationnel, la gestion du changement et la psychologie – les auteurs prônent des approches plus personnalisées et flexibles dans la consolidation de la paix et de l’État de droit.
Topic:: Conflict, Rule of Law, and Peace
Political Geography:: Global Focus

65. Ukrainian Activism for Transparency and Accountability: Two Steps Forward, One Step Back

Author:: Olena Tregub
Publication Date:: 05-2019
Content Type:: Special Report
Institution:: United States Institute of Peace
Abstract:: In the wake of the Euromaidan protests that toppled the government of Viktor Yanukovych in 2014, Ukrainian activists and civil society organizations have pressed hard for anti-corruption reforms and greater openness and transparency in the public sector. Five years later, however, corruption remains a fixture of civic life—and a majority of Ukrainians believe the fight against corruption has been a failure. This new report reviews the changes that have taken place in the anti-corruption movement since the Euromaidan and identifies practical actions the international community can take to support reform efforts in Ukraine.
Topic:: Security, Corruption, Governance, Reform, Democracy, Rule of Law, Protests, Accountability, Transparency, and Justice
Political Geography:: Europe and Ukraine

66. Gendarmeries and constabulary-type police: Roles and responsibilities of police with mixed military and civilian characteristics

Author:: Ronja Harder and Jasper Linke
Publication Date:: 01-2019
Content Type:: Special Report
Institution:: Geneva Centre for Security Sector Governance (DCAF)
Abstract:: Gendarmeries and constabulary-type police go by many names, but all combine characteristics of both the military and civilian police. Because of their unique skill sets, demand for such forces to face new threats to domestic and international security has increased everywhere. However, the mixed military–civilian characteristics of gendarmeries and constabulary-type police pose special challenges for democratic civilian control and the appropriate use of force, especially in domestic law enforcement. This SSR Backgrounder describes the roles and functions of gendarmeries and similar forces and explains how applying the principles of good SSG enables them to fulfil their legitimate mission of protecting both state and human security with respect for human rights and the rule of law. This SSR Backgrounder answers the following questions: What are gendarmeries and constabulary-type police? What roles can gendarmeries play in domestic security? How can gendarmeries contribute to international security? Are gendarmeries compatible with democratic security governance? What does SSR mean for gendarmeries?
Topic:: Security, Human Rights, Law Enforcement, Military Affairs, and Rule of Law
Political Geography:: Geneva and Global Focus

67. Good Governance of the Security Sector in Southeast Asia: What Role for Parliament?

Author:: Mario Joyo Aguja, Hans Born, Pou Sothirak, Paul Chambers, Iis Gindarsah, Rastam Mohd Isa, Nurul Izzati Kamrulbahri, Mohd Syahir Naufal Mahmud Fauzi, Yin Myo Thu, and Aries A. Arugay
Publication Date:: 09-2019
Content Type:: Case Study
Institution:: Geneva Centre for Security Sector Governance (DCAF)
Abstract:: The publication "Good Governance of the Security Sector in Southeast Asia: What Role for Parliament?" is a compilation of contributions submitted at the 10th Anniversary Workshop of the Inter-Parliamentary Forum on Security Sector Governance in Southeast Asia (IPF-SSG) in Siem Reap on 15-16 September 2016. The publication consists of country case studies of Cambodia, Indonesia, Malaysia, Myanmar and the Philippines.
Topic:: Security, Governance, Law Enforcement, and Rule of Law
Political Geography:: Geneva, Indonesia, Malaysia, Asia, Philippines, Cambodia, Southeast Asia, and Myanmar

68. 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

69. 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

70. 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

71. Poland’s 2019 election: Bright prospects for the populist Right

Author:: Marco Siddi and Barbara Gaweda
Publication Date:: 10-2019
Content Type:: Working Paper
Institution:: Finnish Institute of International Affairs
Abstract:: Poland’s incumbent party Law and Justice seems poised to win the election thanks to its welfare policies and the weakness of the opposition. However, its attacks on the independence of the judiciary and the media could further erode the rule of law and exacerbate disputes with the EU.
Topic:: Authoritarianism, Elections, European Union, Populism, Conservatism, and Rule of Law
Political Geography:: Europe and Poland

72. Ten years after EULEX: Key principles for future EU flagship initiatives on the rule of law

Author:: Naim Rashiti
Publication Date:: 05-2019
Content Type:: Working Paper
Institution:: Centre for European Policy Studies (CEPS)
Abstract:: With its “credible enlargement perspective for and enhanced EU enlargement with the Western Balkans”, the EU plans to launch several new flagship initiatives for the six aspiring countries. The key initiative envisaged is “to strengthen rule of law” through more detailed assessment of the rule of law and reform implementation by including case-based peer reviews, trial monitoring of serious corruption cases and organised crime, developing indicators for reform implementation and deploying advisory missions. The EU has begun some planning but detailed action plans are yet to come. New programmes and initiatives should be new in content and form. In the case of Kosovo, things are more complex; the clarity of the new plan and drawing the line between the past and future is key for any success of the upcoming initiatives. With EULEX still on the ground, after 10 years of deployment, plagued by low trust and an image of failure, the rule of law has little improved in Kosovo. The EU should carefully consider the conditions upon which new initiatives are established. Equally, local authorities need to be fully in the driving seat. Reluctant to do so until now, the government has recently initiated a Functional Review of the Rule of Law Sector and Justice 2020. Their agendas have not progressed much in the absence of political will, and undefined roles and agendas remain between the local authorities and EU. Any new initiatives should be launched based on certain principles that ensure they have full local ownership, are driven by local demand, are based on in-depth evaluation and verification, build upon broad consultations and inclusion, have a clearly defined role and scope, have realistic expectations and contribute to streamlining the reform agendas.
Topic:: Reform, European Union, Rule of Law, and Regional Politics
Political Geography:: Europe

73. Kenyan Democracy and the Rule of Law

Author:: John Mukum Mbaku
Publication Date:: 03-2018
Content Type:: Special Report
Institution:: Georgetown Journal of International Affairs
Abstract:: Certain characteristics and values have the power to make or break a democracy. The supremacy of law, for instance, is the foundation on which democracy is built; it is the heart and soul of a free society and the basis for peaceful coexistence. This holds particularly true in Kenya. To manage the conflicting interests of diverse subcultures, all citizens, regardless of their political, economic, and ethnocultural affiliation, must be subject to the law. Thus, a governing process undergirded by the rule of law is critical for a future of peace and development in Kenya.
Topic:: Development, Government, Democracy, and Rule of Law
Political Geography:: Kenya and Africa

74. Budgetary Sanctions as a Mechanism to Protect the Rule of Law in the EU

Author:: Marta Makowska and Melchior Szczepanik
Publication Date:: 09-2018
Content Type:: Special Report
Institution:: The Polish Institute of International Affairs
Abstract:: In the draft multiannual financial framework (MFF) 2021-2027, the European Commission (EC) proposed a political conditionality mechanism through which EU funds could be suspended for countries violating the rule of law. If implemented, it would grant the EC new powers to control the condition of the rule of law in Member States, but it is based on imprecise criteria. Even though the EC has declared that the mechanism is designed to discipline state institutions responsible for breaches, it could be damaging mainly to the final beneficiaries of the funds.
Topic:: Sanctions, Budget, European Union, and Rule of Law
Political Geography:: Europe

75. 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

76. Civilian-Led Governance and Security in Nigeria After Boko Haram

Author:: Jibrin Ibrahim and Saleh Bala
Publication Date:: 12-2018
Content Type:: Special Report
Institution:: United States Institute of Peace
Abstract:: Nigeria’s military has largely degraded the capacity of Boko Haram since the peak of the insurgency in 2015. The government and security forces must now focus on winning the peace. This Special Report outlines the insurgency and its aftermath, the challenges facing the Nigerian government, the imperative of national police reform, and ways forward to stable and effective civilian-led governance.
Topic:: Security, Insurgency, Governance, Reform, Rule of Law, Justice, and Boko Haram
Political Geography:: Africa, Nigeria, Chad, Cameroon, and Niger

77. 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

78. 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

79. 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

80. 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

81. Frontier Justice: A New Approach for U.S. Rule of Law Assistance

Author:: Robert M. Perito and Donald J. Planty
Publication Date:: 05-2018
Content Type:: Commentary and Analysis
Institution:: Public International Law Policy Group
Abstract:: United States rule of law assistance is failing to help recipient governments provide good governance, security and justice. This is particularly true in three categories of states in crisis: (1) states that are experiencing extreme levels of organized criminal violence; (2) states where international Islamist terrorism is attempting to impose extreme versions of Shariah law; and (3) states where corrupt authoritarian governments have morphed into kleptocracies. Though conditions have changed in these countries, U.S. rule of law assistance continues to employ a fragmented and technocratic approach to improving foreign criminal justice systems. Dedicated officials, civil society leaders, and concerned citizens in these countries want to establish the rule of law. In many cases, our current assistance does not help them change the prevailing paradigm. What new approaches for U.S. rule of law assistance are required to provide them with the support needed to change the system? In countries threatened by criminal violence, terrorism, and corrupt authoritarian rule, the study found that those working to promote a democratic political process believed rule of law was the essential element in providing good governance, security, and justice. They pointed out that law enforcement authorities and the criminal justice system were primary targets for those seeking to impose despotic regimes. They looked to the United States as a natural ally sharing common values and providing a model of what they can achieve. These individuals confirmed the critical importance of U.S. assistance in preventing further deterioration in the local conditions and to providing any hope that the situation might be improved. In all cases, these activists lamented the fact that U.S. rule of law assistance programs were often not strategically focused, culturally relevant, or adequately resourced. They made clear that more—not less—U.S. help is required to move forward. Indeed, they called for increased use of U.S. political and diplomatic leverage, closer consultations on program selection and development, and more intelligent targeting of financial resources. Whether aimed at establishing justice, enabling economic development, or promoting foreign investment, U.S. rule of law assistance has been a tool of U.S. foreign and national security policy since the end of World War II. The Obama Administration, however, subordinated rule of law programming to assistance for promoting democracy, protecting human rights, and enabling good governance. There also was a sharp drop in the financial resources devoted to aiding the justice sector. Outside of large programs in Iraq and Afghanistan, funding for aid to courts and corrections fell from several billion dollars to $1.9 billion in 2013 to less than $500 million in 2016. At the same time, rule of law assistance became ‘securitized’ with assistance increasingly focused on convicting and incarcerating drug traffickers and terrorists. The study identified other conditions and practices that undermined the effectiveness of U.S. rule of law programming. From the Washington perspective there is no readily knowable number for the total amount the United States spends annually on rule of law assistance, nor is there a common policy, doctrine, strategy, or coordinating mechanism for this aid. Funding is provided from a number of legislative funding sources, allocated to various government departments, and then spread among numerous implementing partners, primarily non- governmental organizations (NGOs) and commercial contractors. Assistance programs militarize civilian security forces and train prosecutors to charge terrorism suspects and jailors to prevent radicalization. Government agencies concerned with the rule of law programming utilize staff with legal and law enforcement backgrounds largely as advisors and rely upon generic program officers to handle program design, funding and program management. As a result, establishing the rule of law is less a tool than an end state that hopefully will result from programs to ensure free elections, fight drug trafficking, and counter violent extremism. In the field, the study found the administration of U.S. rule of law assistance is neither strategically focused nor designed to produce sustainable change. U.S. programs fail to emphasize that state building efforts are political initiatives and not technical exercises. Program funding is not concentrated to achieve objectives and mobilize sufficient local support. In areas where criminals, jihadists, and insurgents operate without respect for national borders, U.S. assistance does not have a regional perspective. Project implementation is also affected by a lack of U.S. government staff with legal and law enforcement backgrounds on the ground and by risk adverse State Department personnel policies that restrict the movement of U.S. officials making it difficult for them to meet with counterparts and visit project sites to access progress.
Topic:: Security, Governance, Legal Theory, Rule of Law, Borders, and Legal Sector
Political Geography:: North America and United States of America

82. Exit Strategy: Rule of Law and the U.S. Army

Author:: Shima D. Keene
Publication Date:: 09-2018
Content Type:: Special Report
Institution:: The Strategic Studies Institute of the U.S. Army War College
Abstract:: Establishing the rule of law is a key goal and end state in counterinsurgency (COIN) operations and is a critical aspect of securing peace and preventing future conflict. However, recent experience in theaters such as Afghanistan has shown that establishing effective rule of law institutions and practices is not a straightforward task. Consequently, considerations as to how and when rule of law institutions can start to be developed and integrated into the stability transition process must not only be planned in advance, but also form part of the U.S. Army’s strategy from the start of any military intervention. The analysis provided in this monograph will assist the U.S. Army, and more broadly the Departments of Defense and State, in better facilitating a seamless rebalancing from military to police functions in post-conflict environments, and to ensure that sustainable and effective rule of law interventions are delivered as part of an exit strategy.
Topic:: Military Strategy, Armed Forces, Military Intervention, Rule of Law, Army, and Nation Building
Political Geography:: North America and United States of America

83. Integrity on Trial: Judicial reform in Georgia, Ukraine and Moldova

Author:: Steven Blockmans, Nadejda Hriptievschi, Viacheslav Panasiuk, and Ekaterine Zguladze
Publication Date:: 06-2018
Content Type:: Special Report
Institution:: Centre for European Policy Studies (CEPS)
Abstract:: Under the terms of their Association Agreements with the EU, Georgia, Ukraine and Moldova are expected to strengthen the independence of the judiciary, establish zero tolerance of corruption in the legal profession, and reform legislation regarding prosecutors, judges and lawyers. The EU is keen to identify and build upon existing positive sources of resilience, as well as to track and respond to vulnerabilities with the mix of instruments and budgets at its disposal. It is taking a differentiated approach to improving relations with its neighbouring countries. In the case of Georgia, this raises the question of whether the radical overhaul of the Saakashvili-era reforms can withstand the corruptive practices of narrow-minded political and economic operators. In Ukraine, the challenge is how to prolong and channel the positive reform dynamic to firmly anchor institutional and procedural change in the justice sector. In Moldova, the issue is rather to insulate the pockets of successful reform while supporting drivers of change in their fight against illiberal forces. This study identifies innovations in the three associated states’ justice sectors. It analyses changes to both the ‘hardware’ of the justice system, i.e. the constitutional and institutional frameworks, and the ‘software’, i.e. the selection, appointment, promotion and disciplinary procedures and other means to fight corruption in the justice sector. It concludes with a review of existing court practice with the AA/DCFTAs. By doing so, the paper not only gauges national judges’ awareness about the need to enforce their country’s contractual obligations with the EU, it also offers insights into the degree of domestic courts’ openness to use international/European law to put an end to conflicting national rules and bad practices.
Topic:: Corruption, Reform, European Union, Rule of Law, and Judiciary
Political Geography:: Europe, Ukraine, Moldova, and Georgia

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COLUMBIA UNIVERSITY PRESS