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81. New Research on Transitional Justice

Publication Date:
02-2011
Content Type:
Video
Institution:
The Harriman Institute
Abstract:
Participants: Aryeh Neier (Founder, Human Rights Watch and President, Open Society Institute), Monika Nalepa (Political Science Department, Notre Dame University), Lara Nettelfield (Post-Doctoral Fellow, Harriman Institute, Columbia University), Tina Rosenberg (Pulitzer Prize-winning author of The Haunted Land: Facing Europe\'s Ghosts after Communism), Ruti Teitel (Ernst C. Stiefel Professor of Comparative Law, and Associate Director, Center for International Law, New York Law School, and Visiting Professor, London School of Economics), and Leslie Vinjamuri (School of Oriental and African Studies, University of London). This event is part of the "Human Rights in the Post-Communist World: Strategies and Outcomes " series (Harriman Core Project 2010-2011).
Topic:
Human Rights, Human Welfare, International Law, Post Colonialism, and Law
Political Geography:
Africa, New York, and Europe

82. The EU's Experience with Security Sector Governance

Author:
Louis-Alexandre Berg
Publication Date:
01-2011
Content Type:
Working Paper
Institution:
United States Institute of Peace
Abstract:
Civilian oversight ministries are essential to broader efforts to strengthen the performance and responsiveness of security and law enforcement forces. Ministries facilitate coordination among agencies, hold personnel accountable to law and policy, perform administrative functions, shield forces from political interference, and enable civilian oversight through the legislature, civil society, and other mechanisms. Failure to support these roles can undermine efforts to strengthen law enforcement and improve citizen safety in countries affected by conflict or instability. The European Union has extensive experience supporting oversight ministries, having prepared twenty-one ministries of interior to join the EU. The European Commission has assisted ministries in developing countries around the world, while the European Council has deployed civilian missions to crisis environments to establish security and the rule of law. Efforts to develop the laws, procedures, and organizational structures needed for effective oversight ministries face numerous challenges, from limited human capacity to political and organizational resistance, especially in countries transitioning from conflict or authoritarian rule.EU enlargement provided a unique incentive for countries to overcome obstacles to transforming their ministries and improving security sector governance. EU institutions helped translate this incentive into organizational changes by helping candidate countries define a clear structure and vision, deploying experienced experts from EU member states, and managing resistance through coordinated political engagement in support of clearly defined benchmarks. In crisis and stabilization countries, the EU has faced greater challenges. Without a strong external incentive, weak capacity and severe political tensions have undermined assistance efforts. The EU has been enhancing its capabilities for deploying skilled personnel to these environments and for leveraging member states' relationships with countries affected by conflict, to help them overcome political obstacles. Yet the EU has often struggled to achieve the coherence among member states and institutions necessary to support locally driven reforms. The United States can learn from the EU's successes and challenges by paying attention to the role of oversight ministries in the development of security and law enforcement forces overseas. To build its capacity to strengthen oversight ministries and other components of security sector governance, the United States should recruit personnel with broader sets of skills, improve coherence among agencies providing assistance, and deepen cooperation with the EU and other donor countries. Through collaboration in headquarters and in the field, the EU and the United States could complement each other's strengths and pursue common approaches to fostering institutional change in the security sector.
Topic:
Security, Regional Cooperation, and Law
Political Geography:
United States and Europe

83. The "Peoples' Congresses" in Russia: Failure or Success? Authenticity and Efficiency of Minority Representation

Author:
Alexander Osipov
Publication Date:
08-2011
Content Type:
Working Paper
Institution:
European Centre for Minority Issues (ECMI)
Abstract:
This paper addresses the phenomenon of public fora which are designed to represent certain ethnic groups and are set up through popular vote. The academic and practical interest in such "congresses" results from the fact that over time it has been shown that these endeavors have: (1)proven to be viable and durable organization structures for about two decades; (2)secured flexibility in their establishment and functioning;(3) provided for mass participation in public discussions and voting; (4) avoided "identity trap" and most complexities related to setting qualifications and the selection of eligibility criteria for the participants; (5) been a bridge between minority activists and public authorities. At the same time, the real practical outcomes, the ability to act independently and visibility of the "congresses" on the political landscape are far from being obvious, and this raises questions about the reasons for such doubtful achievements and the very meaning of "representation" in such a context.
Topic:
Human Rights, Governance, Law, and Minorities
Political Geography:
Russia, Europe, and Asia

84. Language Policies and Law in Education in Post-Soviet Belarus

Author:
Iryna Ulasiuk
Publication Date:
09-2011
Content Type:
Working Paper
Institution:
European Centre for Minority Issues (ECMI)
Abstract:
The dissolution of the Soviet Union brought to the fore claims of linguistic minorities which had been ignored far too long. In almost all of the former Soviet republics language became an impetus to national revival and an important instrument in consolidating the newly independent states. At times excessively accentuated and overly politicized, the language issue demanded immediate reaction. It was not, therefore, surprising, that almost all of the former Soviet republics rejected to various degrees the legal dogmas which had been created in the Soviet Union and moved towards the weakening of the bonds within the former USSR, the lowering of the status of the Russian language as a symbol of long-term oppression and, as a consequence, the strengthening of the position of the titular language. Belarus has somewhat stood aloof in the process. With Russian being the de facto main language, and Belarusian playing largely a symbolic function, the position of other languages spoken by minority groups residing within the territory of Belarus seems indeed precarious. The present paper seeks to identify the main tendencies in the development of language legislation in the area of education, which has traditionally been considered as determinant for the survival of the language, in Belarus. It investigates the place of the Belarusian legislation in the field of education reserved for the language rights of the titular nation and those of national minorities.
Topic:
Education, Governance, Law, and Minorities
Political Geography:
Russia, Europe, and Belarus

85. Armin von Bogdandy and Jürgen Bast (eds). Principles of European Constitutional Law

Author:
Birgit Schlutter
Publication Date:
05-2011
Content Type:
Journal Article
Abstract:
After the entry into force of the Lisbon treaty on 1 December 2010, and right in the middle of the European response to the recent financial and economic crisis, the review of the second edition of Armin von Bogdandy's and Jürgen Bast's Principles of European Constitutional Law appears to be a timely and anything but anachronistic or cynical enterprise. The European effort to combat the financial crisis and set up a joint framework to regulate the banking sector shows the constant need for research on the 'founding principles of the polity' and the sources of its legitimacy (at 1). And indeed, the second edition of the book, too, provides a thorough examination of the main themes underlying a more closely connected Europe.
Topic:
Law
Political Geography:
Europe and Lisbon

86. Refugees on the High Seas: International Refugee Law Solutions to a Law of the Sea Problem

Author:
Killian S. O'Brien
Publication Date:
09-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Following in the aftermath of the Arab Spring, Europe's southern marine borders have been the showplace of human tragedies previously unseen on this scale and the issue of refugees on the high seas has assumed a newfound importance. This article examines the flawed system provided by the 'Constitution of the Oceans', the UN Convention on the Law of the Sea for the protection of the lives of migrants at sea. It submits that international refugee law is well-equipped to assume a greater responsibility in ensuring the protection of those involved. Although the concept of non-refoulement cannot be stretched ad absurdum, it may still be reasonably interpreted as providing a temporary right to disembark for the purpose of processing possible asylum applications. In the long-term, a system of burden-sharing and permanent, yet flexible, reception agreements remain the only sustainable solution.
Topic:
United Nations and Law
Political Geography:
Europe and Arabia

87. A Call to Members of the European Parliament: Take transparency seriously and enact the 'legislative footprint'

Author:
Lukas Obholzer
Publication Date:
10-2011
Content Type:
Policy Brief
Institution:
Centre for European Policy Studies (CEPS)
Abstract:
The code of conduct that was agreed by a cross-party working group of the European Parliament (EP), the EP Bureau and Conference of Presidents, is a watered-down compromise that lacks provision for the introduction of the 'legislative footprint' that the plenary requested the Bureau to set up. The legislative footprint is a document that would detail the time, person and subject of a legislator's contact with a stakeholder. Published as an annex to legislative reports, it would provide insight into who gave input into draft legislation. Unfortunately, the Constitutional Affairs (AFCO) Committee with Carlo Casini (EPP) as Chair and Rapporteur has so far failed to improve the draft in this respect. Against a backdrop of past scandals and recent criticism of early agreements negotiated in trilogues behind closed doors, the EP is about to miss an opportunity to show that it has learnt its lesson, and that it takes seriously its role as guarantor of legitimacy in EU decision-making. Transparency means proactive action: by adding a provision for a legislative footprint that identifies the interest representatives with whom key actors met and from whom they received advice, Members of the European Parliament (MEPs) have a chance to turn the EP into a role model for parliamentary transparency in a pluralistic democracy.
Topic:
Climate Change, International Organization, and Law
Political Geography:
Europe

88. Legal order free of pillars: European Courts' jurisdiction in the post-Treaty of Lisbon setting

Author:
Janne Salminen
Publication Date:
11-2011
Content Type:
Policy Brief
Institution:
Finnish Institute of International Affairs (FIIA)
Abstract:
From the legal point of view, the most important change ushered in by the Treaty of Lisbon concerns the scope of the jurisdiction of the Court of Justice of the European Union. This was widened due to the dismantling of the pillar structure. As a general rule, the jurisdiction of the European Courts now covers previous third pillar matters as well, namely criminal law and police co-operation. The dismantling of the pillar structure did not, however, affect the Common Foreign and Security Policy. The Union Courts still do not have jurisdiction in this area. This rule has two important exceptions. Although the Area of Freedom, Security and Justice is communitarised and more coherent than before, the previous limits in its territorial scope, namely the opt-outs of the UK, Ireland and Denmark, did not disappear, so limits in the Courts' jurisdiction remain. The Treaty of Lisbon amendments did not change the fundamentals of the judicial doctrines, such as the direct effect and primacy of European Union law. Importantly, the application of these doctrines was widened instead, owing to the depillarisation. The Treaty of Lisbon amendments meant that the decisions of the European Council and European Union bodies, offices and agencies can be reviewed under the preliminary ruling procedure. The Treaty of Lisbon changed the much-debated criteria for the standing of non-privileged applicants in actions to review the legality of the European Union acts.
Topic:
Security, Foreign Policy, Treaties and Agreements, and Law
Political Geography:
United Kingdom, Europe, Denmark, Lisbon, and Ireland

89. Just Expectations: A Compilation of TESEV Research Studies on the Judiciary in Turkey

Author:
Eylem Ümit Atılgan, Meryem Erdal, Mithat Sancar, and Suavi Aydın
Publication Date:
02-2011
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
Since the European Union membership process has gained a central position in politics, Turkey has become focused on reforms and change. However, this requires not only political will but also social acceptance, as Turkey’s drawbacks originate also from the social mentality as much as from the state tradition. Therefore, how social perception is changing in the areas expected to go through restructuring and how ready the society is for the possible reforms is a very important question. TESEV studied this issue within the scope of a research on “Social Perceptions and Mentality Structures” a few years ago and presented the results of this research to the public in the format of four separate books. In addition to ideological frameworks such as religiousness, secularism and nationalism, these studies addressed the general approach to the state and the patriarchal environment evident in families, and revealed how perceptions are changing at the individual and collective level. However, there is another very important stratum between political will and social ownership, and Turkey’s need for reform perhaps shows itself most keenly at this point. This stratum is the state institutions. It looks like it is a must for virtually the entire bureaucracy, and mainly the armed forces, the judiciary and the police, to restructure in terms of mentality, organization and functions. Taking this into consideration, Turkish Economic and Social Studied Foundation (TESEV) Democratization Program (DP) decided to continue its studies on “Perceptions and Mentalities” with bureaucratic institutions and address the judiciary as the first institution. One of the main reasons behind this choice was that there were very few studies on the judiciary, an institution that is in a central position in terms of democratization, law, and state-citizen relations in Turkey. Taking this shortcoming into account, a research series comprised of three separate studies that complement each other were prepared with the aim to inform and guide the public debate on the judiciary in Turkey. Based on these research projects conducted between early 2007 and mid-2009, TESEV DP published three separate books on the judiciary in Turkey. It should be noted that the study does not cover the developments taking place in the judiciary after the first half of 2009. The first book authored by Mithat Sancar and Eylem Ümit Atılgan attempted to shed light on the mentalities of judges and prosecutors and how they approach 2 the concepts of state, justice and rights. The second book authored by Mithat Sancar and Suavi Aydın aimed to determine the perception of justice in the society and the functionality attributed to the judiciary as an institution in the public mind. The book demonstrates that terms such as equity and criminality are interpreted within a pragmatic framework, and reveals the social perceptions that hamper the establishment of an understanding of law based on universal principles. The third book authored by Meryem Erdal takes a look at the press as an essential area that functions as a bridge between the judiciary as a bureaucratic institution and the way justice and law are perceived in the society. This is mainly because the support of a powerful media is a requirement for the institutional transformation of the judiciary based on democratic principles and norms as well as for the formation of the social perception that seeks a transformation as such. This English edition consists of an extensive summary of each of these three books with the aim to present their core findings in one volume. Turkey’s requirements in its democratization process are the formation of a citizenship in conformity with the universal norms recognized today, along with its administrative mechanisms. The bureaucracy of law and, hence, the judiciary are in a central position as the indispensible guarantees of such a transformation. We hope that this study will make serious contributions to discussions on the reforms that will be made in such an important area...
Topic:
Democratization, Law, European Union, Media, Justice, Judiciary, and Society
Political Geography:
Europe, Turkey, and Middle East

90. Warum betreibt der Europäische Gerichtshof Rechtsfortbildung? Die Politisierungshypothese

Author:
Martin Höpner
Publication Date:
02-2010
Content Type:
Working Paper
Institution:
Max Planck Institute for the Study of Societies
Abstract:
Scholars from law, political science and sociology agree that the European Court of Justice (ECJ) interprets European law extensively and that the Court has become an “engine of integration” that, de facto, conducts integration policy. On the basis of ten landmark ECJ decisions, this paper discusses whether the politicization hypothesis can help to explain this development. The politicization hypothesis posits that ECJ judges make their decisions based on the political interests of either the countries they come from or the parties they sympathize with. The party-based variant of the hypothesis does not seem to have any explanatory power. Similarly, the country-based variant delivers no systematic explanation that could supersede alternative explanations. However, the country-based variant fits quite well with some of the cases observed. I conclude that while situationally motivated acts of politicization may actually occur at the ECJ, which does not imply that the judicial code is being totally replaced by political considerations.
Topic:
International Law and Law
Political Geography:
Europe