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561. Transitional Justice in Nepal: A Look at the International Experience of Truth Commissions

Author:
Karon Cochran-Budhathoki
Publication Date:
09-2007
Content Type:
Policy Brief
Institution:
United States Institute of Peace
Abstract:
Amid the run-up to the Constituent Assembly elections scheduled for November, Nepal's government has prepared a Truth and Reconciliation Commission Act, as required by the November 2006 Comprehensive Peace Agreement between the government and the Communist Party of Nepal-Maoist (CPN-M). The Truth and Reconciliation Commission (TRC) is the most prominent of several commitments made during the peace process to promote transitional justice following Nepal's more than ten-year civil war—along with a committee to investigate disappeared persons and a commission to investigate abuses of the armed forces and police during democracy protests in 2006. But transitional justice—or the process of fairly confronting the legacy of past crimes committed during the armed conflict—is only beginning to be discussed in the general public in Nepal. Consequently, there is little understanding outside a small circle in the capital of what options there are to provide truth and accountability for atrocities and rights abuse that occurred during Nepal's conflict or what other countries have done to cope with similar issues.
Topic:
Democratization, International Law, and Political Economy
Political Geography:
Asia and Nepal

562. Building the Rule of Law under UN Transitional Administration

Author:
Carolyn Bull
Publication Date:
01-2007
Content Type:
Policy Brief
Institution:
United Nations University
Abstract:
For international actors seeking to consolidate peace and democracy in disrupted states, the importance of establishing the rule of law is well-recognised. Yet this goal has proven frustratingly elusive. In the hostile intervention environment of the post-conflict disrupted state, international actors in the UN system and elsewhere have struggled to build legitimate state structures to redress disputes peacefully. They have found it even more challenging to instil principles of governance that promote accountability to the law, protect against abuse and generate trust in the state. This brief examines the difficulties faced by UN peace operations in attempting to build the rule of law, with reference to UN transitional administrations in Cambodia, Kosovo and East Timor.
Topic:
Conflict Resolution, Development, Government, International Law, and International Organization
Political Geography:
Kosovo and Cambodia

563. Reflections on Multilevel Legitimacy

Author:
Fritz W. Scharpf
Publication Date:
07-2007
Content Type:
Working Paper
Institution:
Max Planck Institute for the Study of Societies
Abstract:
The function of legitimacy is to ensure voluntary compliance with unwelcome exercises of governing authority. Since practically all European law needs to be implemented and enforced by the governments and courts of the member states, the EU does not have to face its citizens directly. It follows that the legitimacy of European governance ought to be conceptualized at two levels. At one level, the legitimacy of member states is decisive for the compliance of individuals and firms, regardless of the ultimate origin – international, European or national – of the rules that demand this compliance. At the other level, the legitimacy of the European “government of governments” is decisive for the voluntary compliance of member states with the obligations imposed on them by the EU. What should be worrying however is the impact which EU governance – especially the rules of negative integration defined by politically non-accountable actors – may have on the legitimacy of member states, and ultimately on their capacity to comply.
Topic:
Government, International Law, and Treaties and Agreements
Political Geography:
Europe

564. Germany's Involvement in Extraordinary Renditions and Its Responsibility under International Law

Author:
Laura Tate Kagel
Publication Date:
12-2007
Content Type:
Journal Article
Journal:
German Politics and Society
Institution:
German Politics and Society Journal
Abstract:
As investigative journalists and nongovernmental organizations (NGOs) increasingly uncover the nature and scope of a U.S. government program known for transferring terrorist suspects outside of normal legal and administrative channels, the role of European states has come under scrutiny. To a large degree, these states have erected a “wall of fog,” as a report from the German Institute of Human Rights describes it, blocking access to information that would allow for independent assessments of the human rights implications of the counterterrorism practice known as “extraordinary rendition.”
Topic:
International Law and Terrorism
Political Geography:
United States, Europe, Germany, and Egypt

565. How Canada's Supreme Court Sparked a Patients' Rights Revolution

Author:
Jacques Chaoulli
Publication Date:
05-2006
Content Type:
Working Paper
Institution:
The Cato Institute
Abstract:
Early efforts by Western democracies to restrict freedom of contract were rationalized on the ground that such restrictions were necessary to prevent the suffering of ordinary citizens. People who oppose the freedom to opt out of state-run health insurance schemes turn that rationale on its head: they oppose freedom of contract even when it is necessary to prevent the suffering of ordinary citizens. A recent ruling by the Canadian Supreme Court has helped to restore that freedom and the right of patients to make their own medical decisions.
Topic:
International Relations, Foreign Policy, Government, and International Law
Political Geography:
Canada

566. Bridging the Unbridgeable? A Commonlaw View on Judicial Co-operation and Mutual Recognition in an Area of Freedom, Security and Justice

Author:
Maik Martin
Publication Date:
06-2006
Content Type:
Journal Article
Journal:
Cultures & Conflits
Institution:
Cultures & Conflits
Abstract:
La reconnaissance mutuelle des décisions judiciaires constitue la pierre angulaire de la coopération pénale européenne. Philosophie officielle de l'Union européenne, ce principe se trouve à la base des instruments de coopération tels le mandat d'arrêt européen. Les premiers arrêts rendus par les Cours anglaises, irlandaises et allemandes démontrent cependant qu'une absence de confiance en les Etats membres de l'UE au niveau des systèmes pénaux gêne considérablement la mise en pratique de cette philosophie. Cet article évalue la jurisprudence émergente sur cette question, dans l'optique de déterminer à la fois l'efficacité des instruments actuels de reconnaissance mutuelle et de mettre en évidence les difficultés inhérentes à ce principe concernant la protection des droits fondamentaux. L'auteur conclut sur la nécessité d'une certaine harmonisation des droits pénaux des Etats membres pour que la confiance mutuelle puisse être à la base du principe de reconnaissance, ce qui permettra de réaliser « un espace de liberté, la sécurité et la justice ».
Topic:
International Law

567. The Constitutional Protection of Socio-Economic Rights in Selected African Countries: A Comparative Evaluation

Author:
John Cantius Mubangizi
Publication Date:
03-2006
Content Type:
Journal Article
Journal:
African Journal of Legal Studies
Institution:
The Africa Law Institute
Abstract:
This article evaluates the extent to which a few selected African countries have incorporated socio-economic rights in their constitutions, the mechanisms through which such rights are realised, the challenges such realisation entails and the approach taken by the courts and other human rights institutions in those countries towards the realisation and enforcement of those rights. The survey examines South Africa, Namibia, Uganda and Ghana. Apart from the logical geographical spread, all these countries enacted their present constitutions around the same time (1990 to 1996) in an attempt to transform themselves into democratic societies. In a sense, these countries can be seen as transitional societies, emerging as they have done, from long periods of apartheid and foreign domination or autocratic dictatorships. The latter is true for Uganda and Ghana while the former refers to South Africa and Namibia. The article concludes that South Africa has not only made the most advanced constitutional provision for socio-economic rights, it has also taken the lead in the judicial enforcement of such rights, an experience from which the other countries in the survey can learn.
Topic:
Development, Government, and International Law
Political Geography:
Africa

568. Genomics, Insurance and Human Rights: Is there a Place for Regulatory Frameworks in Africa?

Author:
Vincent O. Nmehielle
Publication Date:
03-2006
Content Type:
Journal Article
Journal:
African Journal of Legal Studies
Institution:
The Africa Law Institute
Abstract:
This article examines the human rights dimension of genetic discrimination in Africa, exploring the place of regulatory frameworks while taking into account the disadvantaged position of the average African. This is in response to the tendency of insurance companies toward making health insurance decisions on the basis of individual genetic information, which could result in genetic discrimination or health insurance discrimination based on a person’s genetic profile. The author considers such questions as the intersection between human rights (right to life, health, privacy, human dignity and against genetic discrimination) in relation to the insurance industry, as well as the obligations of state and non-state actors to promote, respect, and protect the enjoyment of these rights. The article argues that African nations should not stand aloof in trying to balance the competing interests (scientific, economic and social) presented by the use of genetic information in the health care context and that ultimately it is the responsibility of states to develop domestic policies to protect their most vulnerable citizens and to prevent entrenched private discrimination based on an individual’s genes.
Topic:
Development, Government, Human Rights, and International Law
Political Geography:
Africa

569. Rules of Procedure and Evidence of the Special Court for Sierra Leone

Publication Date:
03-2006
Content Type:
Journal Article
Journal:
African Journal of Legal Studies
Institution:
The Africa Law Institute
Abstract:
These Rules of Procedure and Evidence as first amended on 7 March 2003, are applicable pursuant to Article 14 of the Statute of the Special Court for Sierra Leone, and entered into force on 12 April 2002.
Topic:
Development, Government, and International Law
Political Geography:
Africa

570. Current Legal Issues in the External Relations of the European Union

Author:
Michel Petit
Publication Date:
12-2006
Content Type:
Working Paper
Institution:
European Research Papers Archive
Abstract:
This paper is based on a lecture delivered during the Academy of European Law Summer School 2006. It provides an examination from a legal perspective of three current themes in the external relations of the European Union. First, the legal implications of the pillar structure for external relations, including recent case law and practical issues arising from the application of Article 47 TEU, the borderline between Community external policies and the Union's common foreign and security policy, and practical interpillar cooperation. It concludes that it is easier to combine the pillars by means of pragmatic solutions, whereas it is much more difficult in the case of a strictly legal construction which takes into account the requirements of Union coherence and the separate character of each pillar. Second, the paper turns to the balance between Member States and the European Union/Community in external policy and in particular the application of the “AETR test” in recent case law including the “Open Skies” cases, the Lugano Convention Opinion and the “Mox Plant” case. It concludes that a proper application of the AETR remains a practical challenge that transcends the narrow issue of pure legal deduction as to whether Community competence is “affected” or not. And third, the paper considers the position of the EU within, and participation in the work of, international organisations such as the United Nations, the WHO and the WTO. The paper concludes by emphasising the need for collaboration between the institutions and for pragmatic solutions to the problems that are inevitable while the Union retains its current complex structure.
Topic:
International Relations, Development, and International Law
Political Geography:
Europe