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221. Media and the Law: An Overview of Legal Issues and Challenges

Author:
Peter Noorlander
Publication Date:
07-2011
Content Type:
Working Paper
Institution:
National Endowment for Democracy
Abstract:
The legal environment in which a media outlet operates is a crucial factor in its success. Rules and regulations can hinder or enable the growth of media and restrict or promote particular kinds of content. A liberal and empowering legal regime will allow media to publish hard-hitting investigative reports and fulfill their function as watchdog of democratic society without fear of legal sanction, thus helping to make governments more accountable. This is a public good lost to citizens of countries with restrictive legal regimes.
Topic:
Development, Terrorism, Third World, Mass Media, and Law
Political Geography:
United States and United Kingdom

222. The Kabul Courts and Conciliators: Mediating Cases in Urban Afghanistan

Author:
Zuhal Nesari and Karima Tawfik
Publication Date:
08-2011
Content Type:
Policy Brief
Institution:
United States Institute of Peace
Abstract:
USIP observation in the Kabul court system shows that a significant number of legal disputes are being resolved through a combination of formal and informal justice mechanisms, contrary to the assumption that resorting to traditional dispute resolution bodies occurs only in rural areas where legal awareness and access to courts is low. Specifically, the Kabul courts frequently refer cases to conciliators who are not part of the formal judiciary. This yields benefits for both the courts and litigants: Conciliators reduce the courts'; caseload and litigants receive a cost-effective and expeditious alternative to trials. The Afghan civil and commercial procedural codes specifically allow decisions made between litigants and a conciliator to be formally registered with the court, which may provide a legal model for recognition of decisions by traditional shuras or jirgas. In practice, however, litigants are not uniformly provided with the option of settling their cases through conciliators. Therefore, increased public awareness of the legal option to refer cases to conciliators would provide litigants with the relevant knowledge they need to make an informed decision about the best way to resolve their disputes, and reduce the demand for the already overburdened formal justice sector.
Topic:
Crime and Law
Political Geography:
Afghanistan

223. Turning Legal Pluralism into State-Sanctioned Law: Assessing the Implications of the New Constitutions and Laws in Bolivia and Ecuador

Author:
Anna Barrera
Publication Date:
08-2011
Content Type:
Working Paper
Institution:
German Institute of Global and Area Studies
Abstract:
Former colonial countries and ethnically and/or religiously diverse societies have long faced the challenge of accommodating distinct and largely conflictive normative orders within a single polity.1 In such contexts of legal pluralism, particular social groups have often, besides state law, followed their own law-like principles, rules, and procedures, which typically originate from distinct sources of legitimacy such as tradition or religion, cultural values and forms of organization (Griffiths 1986; Sousa Santos 1987; Merry 1988; Benda-Beckmann 2002).
Topic:
Conflict Resolution, Democratization, Ethnic Conflict, and Law
Political Geography:
Latin America, Ecuador, and Bolivia

224. Leashing the Surveillance State: How to Reform Patriot Act Surveillance Authorities

Author:
Julian Sanchez
Publication Date:
05-2011
Content Type:
Working Paper
Institution:
The Cato Institute
Abstract:
Congress recently approved a temporary extension of three controversial surveillance provisions of the USA Patriot Act and successor legislation, which had previously been set to expire at the end of February. In the coming weeks, lawmakers have an opportunity to review the sweeping expansion of domestic counter-terror powers since 9/11 and, with the benefit of a decade's perspective, strengthen crucial civil-liberties safeguards without unduly burdening legitimate intelligence gathering. Two of the provisions slated for sunsetroving wiretap authority and the so-called “Section 215” orders for the production of records—should be narrowed to mitigate the risk of overcollection of sensitive information about innocent Americans. A third—authority to employ the broad investigative powers of the Foreign Intelligence Surveillance Act against “lone wolf” suspects who lack ties to any foreign terror group—does not appear to be necessary at all.
Topic:
Defense Policy, Intelligence, National Security, Counterinsurgency, Governance, and Law
Political Geography:
United States

225. Does International Criminal Law Still Require a 'Crime of Crimes'? A Comparative Review of Genocide and Crimes against Humanity

Author:
Alexander R. J. Murray
Publication Date:
09-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article argues that the crime of genocide is now a redundant crime in international law given the advances that have been made in the case law and application of crimes against humanity. It does this by providing an historical analysis of the two crimes before going on to consider four separate crimes against humanity and corresponding acts of genocide. The primary argument leveled against genocide is the difficulties that stem from proving the intent in the mind of the perpetrator to destroy a particular group in contrast to the less demanding category of crimes against humanity. It argues for a pragmatic rather than philosophical approach to international justice for the benefit of the victims and the prevention of criminal acts in the future.
Topic:
Law

226. 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

227. Alternative Dispute Resolution in Africa: Preventing Conflict and Enhancing Stability

Author:
Ernest Uwazie
Publication Date:
11-2011
Content Type:
Policy Brief
Institution:
Africa Center for Strategic Studies
Abstract:
Backlogged court dockets in Africa, often requiring claimants to wait years, are common. The resulting perception that justice cannot be attained through official channels is a potential catalyst for intergroup violence and political instability. Alternative Dispute Resolution is an increasingly popular complement to official legal channels to resolve less serious disputes in a timely manner through mediation while enhancing claimants' sense of justice. Establishing legislation supporting Alternative Dispute Resolution as well as broadening the number and caliber of mediators can expedite the adoption of this mechanism.
Topic:
Conflict Prevention, Political Violence, and Law
Political Geography:
Africa

228. 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
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

229. 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
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

230. The Global Abolition of Human Trafficking – The Indispensable Role of the United States

Author:
Mark P. Lagon
Publication Date:
02-2011
Content Type:
Journal Article
Journal:
Georgetown Journal of International Affairs
Institution:
Georgetown Journal of International Affairs
Abstract:
Much progress has been made in the fight against human trafficking over the past ten years thanks to the implementation of a UN treaty and a comprehensive U.S. law to combat this crime. What actions have states and non-state actors taken against human trafficking so far, and what more should be done in order to help the millions of trafficking victims worldwide?
Topic:
United Nations and Law
Political Geography:
United States