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61. Reconceptualizing Implementation: The Judicialization of the Execution of the European Court of Human Rights Judgments

Author:
Helen Keller and Cedric Marti
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
This article proposes a shift of perspective concerning the implementation of European Court of Human Rights (ECtHR) judgments. Acknowledging that implementation of the Court’s judgments is primarily of a political and domestic nature, the authors argue that the process has become increasingly internationalized and judicialized by the ECtHR in recent years. Taking a broad, three-tiered perspective that distinguishes between the pre-judgment stage, the judgment itself and the post-judgment stage, the authors analyse the means by which the ECtHR has engaged in implementation of its judgments and explore the benefits of judicialization in this area to secure a key aspect in guaranteeing effective protection and the long-term future of the European Convention on Human Rights system, namely full and timely judgment compliance.
Topic:
Human Rights, International Law, Law, and Courts
Political Geography:
Europe and France

62. Bridging Comparative and International Law: Amicus Curiae Participation as a Vertical Legal Transplant

Author:
Anna Dolidze
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
Legal transplants scholarship has thoroughly examined the transnational diffusion of legal institutions. Although Article 38 of the Statute of the International Court of Justice acknowledges that international law draws upon domestic legal systems, the exchange of legal institutions between states and international law has yet to receive similar treatment. This article highlights the process of vertical diffusion – that is, the borrowing of legal institutions between the nation-state and international law. Vertical diffusion takes place in two forms: downward and upward diffusion. Scholarship on the internalization and vernacularization of international law has highlighted the process of downward diffusion. This article offers a theory of internationalization of law and the emergence of internationalized legal transplants. It draws on a study of the internationalization of the amicus curiae participation procedure from the United Kingdom to the European Court of Human Rights. Three main conditions must be present for internationalization: the institution’s structural transformation that results in a law-making opportunity, norm entrepreneurs, and access to the decision-making body. The study of internationalized legal transplants is important to have a more fine-grained perspective on the making of international law. The evidence of the diffusion of legal institutions between domestic law and international law also creates a bridge between international law and comparative law scholarship.
Topic:
Human Rights, International Law, Legal Theory, and Courts
Political Geography:
United Kingdom, Europe, and France

63. Letting Lotus Bloom

Author:
Ann Hertogen
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
In an increasingly interdependent world, state sovereignty is inherently limited in order to protect the equal sovereignty of other states. However, identifying the precise constraints on states is a different and far more difficult question. The traditional answer is found in the Lotus principle, which consecrates a freedom to act unless explicitly prohibited by international law. The principle has rightly come under attack because of its incompatibility with the needs of a modern international community. This is usually followed by calls to disregard the precedential value of the Permanent Court of International Justice’s Lotus judgment on which it is based. This article defends the Lotus judgment but argues that the principle is the wrong reading of the majority opinion and that it fails to create the right conditions for interstate co-existence and cooperation, the twin goals of international law identified by the majority. The article then examines the meaning of ‘co-existence’ for contemporary international law and weighs the principle of ‘locality’ as an additional criterion that ought to be considered when resolving conflicting claims of jurisdiction.
Topic:
International Law, Sovereignty, International Affairs, and Courts
Political Geography:
Europe, Turkey, and France

64. Domestic Violence as a Human Rights Issue: Rumor v. Italy

Author:
Ronagh J.A. McQuigg
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
This article focuses on the recent developments concerning domestic violence within the context of the Council of Europe. Since 2007, the European Court of Human Rights has issued a series of important judgments in cases involving domestic violence. The most recent of these is Rumor v. Italy, in which the Court issued its judgment on 27 May 2014. The article analyses this case in the context of the Court’s previous jurisprudence on domestic violence. In addition, on 1 August 2014, the Council of Europe’s Convention on Preventing and Combating Violence against Women and Domestic Violence entered into force, and the article will include a number of reflections on the potential held by this Convention. No violation of the European Convention on Human Rights was found in Rumor; however, the question of whether Italy would have been in breach of the provisions of the new Convention, to which it is a party, had this Convention been in force at the time of the relevant events, will be examined.
Topic:
Human Rights, International Law, Women, Gender Based Violence, and Courts
Political Geography:
Europe and Italy

65. EJIL Editors’ Choice of Books 2015

Author:
Sarah Nouwen, Christian Tams, Jan Klabbers, and Jean d'Aspremont
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
At the end of 2014, we invited the EJIL Board members to reflect on the books that had had a significant impact on them during the year. Their contributions, posted on EJIL: Talk!, were met with great interest and curiosity. As the end of another year approaches, we decided once more to invite our Board members to look back on their reading in 2015. In the following pieces Sarah Nouwen, Christian Tams, Jan Klabbers and Jean d’Aspremont write about the books they read or re-read this year and which they found inspiring, enjoyable or even ‘must reads’ for their own work or international law scholarship in general.
Topic:
Human Rights, International Law, History, and Courts
Political Geography:
Africa, Europe, and South Sudan

66. Making Social Rights Real: Implementation Strategies for Courts, Decision Makers and Civil Society

Author:
Celeste Kauffman and César Rodríguez Garavito
Publication Date:
07-2014
Content Type:
Working Paper
Institution:
Dejusticia
Abstract:
In this document, we have examined the challenge of implementing ESCR decisions at the domestic, regional, and international levels. First, we have considered various factors that influence the implementation of ESCR decisions and have provided an overview of existing implementation mechanisms in regional and international law. Second, we have used case studies to illustrate aspects of successfully implemented decisions at the domestic, regional, and international levels. Finally, based on the successful case studies, we have outlined several implementation strategies that may be useful to domestic courts, regional and international courts, civil society, and human rights institutions.
Topic:
Civil Society, Human Rights, International Law, Law, Courts, Civil Rights, and Legal Sector
Political Geography:
Latin America

67. TESEV’s Suggestion: Anti-Corruption Legislation and International Acquis

Author:
R. Bülent Tarhan
Publication Date:
01-2014
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
This comprehensive work has been prepared by Prime Minister’s Chief Inspector Bülent Tarhan and contains all related UN and OECD documents, government of Republic of Turkey’s fight against corruption action plans, decision and circulars of the prime ministry, national programme of Turkey related with undertaking of the EU Legal Acquis related provisions of the Turkish law, EU Progress reports, GRECO Turkey Reports, all anti-corruption laws and GNAT Corruption Investigation Commission Report as well as Mr.Tarhan’s article ‘Institutional Foundation of Anti-corruption’. Published by TEPAV (The Economic Policy Research Foundation of Turkey) this work is an extensive source of information to anyone who has been interested in this subject matter. In order to navigate easily in this 1040 page long document, you can click on the titles and sub-titles in the summary of contents. This work has only been published in Turkish.
Topic:
Corruption, Law, European Union, Courts, Accountability, Transparency, and Justice
Political Geography:
Europe, Turkey, and Middle East

68. Socially Abhorrent but Legally Acceptable: A Study of Alleged Conversions of Sunnis and Shias in Cases of Inheritance in Pakistan

Author:
Shahbaz Ahmad Cheema
Publication Date:
07-2014
Content Type:
Journal Article
Journal:
South Asian Studies
Institution:
Department of Political Science, University of the Punjab
Abstract:
There are two main sectarian divisions among Muslims living in Pakistan; these are Sunni and Shia schools of thought. It is socially abhorred within these sects that a person belonging to them converts to another. This seems to be the reason that conversions from one sect to another are not found often in Pakistani society. If this social phenomenon of non-conversion is compared with the cases of inheritance contested in and decided by the apex judiciary of Pakistan we would be surprised by the fact that there are numerous stories of alleged conversions from Sunnism to Shiaism and vice versa. Analyzing the cases of inheritance decided by the apex judiciary of Pakistan, the paper explores the reasons of such conversions or assertions thereof. The analysis suggests that these conversions are mostly alleged and contested by the parties to such cases to enrich themselves financially or deprive the other party from any financial benefits which would have accrued had the propositus proved to be belonged to the other sect. The paper also brings to light how this space of maneuvering has been facilitated by different interpretations of law of inheritance by Sunni and Shia schools of thought.
Topic:
Courts, Sunni, Shia, Sharia, and Inheritance
Political Geography:
Pakistan and South Asia

69. Women Prisoners: A Case Study of Central Jail, Kot Lakhpat, Lahore

Author:
Khalid Manzoor Butt
Publication Date:
07-2014
Content Type:
Journal Article
Journal:
South Asian Studies
Institution:
Department of Political Science, University of the Punjab
Abstract:
Despite having kaleidoscopic culture, discrimination of womenfolk is quite common in Pakistan even today – seemingly fulfilling an undeclared agenda that women should be restricted from having liberty, education, economic exposure, and rights. But going behind the bars makes them even more vulnerable and adds to their exploitation because of the stigma they carry for whole of their lives. This descriptive research deals with the crucial issue of women prisoners in Pakistan; identify the factors that lead the involvement of women in criminal activities; and looks into the condition of women prisoners in jail through qualitative methodology.
Topic:
Crime, Prisons/Penal Systems, Women, and Courts
Political Geography:
Pakistan and South Asia

70. Recent Developments at the Extraordinary Chambers of the Courts of Cambodia

Publication Date:
03-2013
Content Type:
Policy Brief
Institution:
Open Society Foundations
Abstract:
The death of Ieng Sary, one of the three accused in Case 002 at the Extraordinary Chambers in the Courts of Cambodia, cast into sharp relief the many delays and difficulties that threaten to deny justice to the victims of the Khmer Rouge. The court continues to struggle with Case 002, while the specter of political interference haunts Cases 003 and 004, and a funding crisis hangs over the entire institution. This report examines recent events at the court and offers recommendations for action by the UN, the Royal Government of Cambodia, and the court’s donors.
Topic:
Conflict Resolution, United Nations, Courts, and Transitional Justice
Political Geography:
Cambodia