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31. 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

32. Internal Security in Papua New Guinea: Trends and Prospects

Author:
Sinclair Dinnen
Publication Date:
12-2017
Content Type:
Commentary and Analysis
Institution:
Lowy Institute for International Policy
Abstract:
Concerns about personal security have been prominent in Papua New Guinea for many years. Personal security figures regularly in travel advisories issued by foreign governments. International news coverage of Papua New Guinea is often about violence or crime, reinforcing the country's reputation as a dangerous and lawless place. A visitor to Port Moresby, the sprawling national capital, sees evidence of this in the elaborate security arrangements that shape the urban landscape. Drivers of insecurity in this young nation are complex and multidimensional, stemming from the legacies of a recent colonial past, along with the ongoing challenges of state consolidation and the uneven effects of economic globalisation. The main security threats are non-traditional, including urban crime, gender-based violence, corruption, arms trafficking, border protection, resource poaching, climate change, natural disasters, and transnational crime. Although some view China's growing presence as a potential threat, its activities in Papua New Guinea have been largely confined to diplomacy, development assistance and investment. Prime Minister Peter O'Neill has acknowledged the absence of any "distinct conventional external threat", while PNG's National Security Policy recognises the developmental and political character of the country's security challenges.
Topic:
Security, Crime, Development, Natural Resources, and Rule of Law
Political Geography:
AustralAsia and Papua New Guinea

33. Land Acquisition in India: A Review of Supreme Court Cases (1950-2016)

Author:
Namita Wahi, Ankit Bhatia, Pallav Shukla, Dhruva Gandhi, Shubham Jain, and Upasana Chauhan
Publication Date:
03-2017
Content Type:
Special Report
Institution:
Centre for Policy Research, India
Abstract:
Context: India faces serious challenges in creating development processes that generate economic growth while being socially inclusive, ecologically sustainable, politically feasible, and in accordance with the Rule of Law. Equitable and efficient acquisition of land by the state for economic development projects, including infrastructure and industry, lies at the heart of these challenges. Simultaneously, securing constitutionally guaranteed land rights to the poorest and most vulnerable communities in India against the state and other dominant communities, has been considered crucial to their economic and social empowerment. Land is not only an important economic resource and source of livelihoods, it is also central to community identity, history and culture. Unsurprisingly then, throughout India, dispute over state acquisition of land that deprives people of their land rights spans various dimensions of economic, social, and political life. How do we mitigate this conflict? The CPR Land Rights Initiative report on ‘Land Acquisition in India: A Review of Supreme Court cases from 1950-2016’, offers some preliminary answers to this question. Not only is this report the first comprehensive country-wide study of land acquisition disputes since India's independence, but also for the first time ever analyses these disputes along various metrics, such as i) public purpose, ii) procedure for acquisition, iii) compensation, iv) invocation of the urgency clause, v) pendency of claims, and vi) tracks trends with respect to distribution of disputes across geography and time, and central and state laws. The Report also analyses litigation under the newly enacted Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR Act) for the three year period, 2014 to 2016. A detailed presentation of the findings from the report can be accessed here. Key findings: Reasons for inequity between state and land losers: The Report concludes that the political and social contestation over land acquisition stems from the inherently coercive nature of the land acquisition process, which creates a severe imbalance of power between the state and land losers. While much of this imbalance was created by the text of the Land Acquisition Act, 1894, a considerable part of it could also be attributed to executive non-compliance with the rule of law. The result is a situation of great inequity for the land losers. Legal reform under the LARR Act should be implemented by government, not subverted to redress these inequities: The Report finds that specific provisions of the LARR Act are steps in the right direction to redress the imbalance of power that was built into the Land Acquisition Act, 1894 in so far as: i) they empower livelihood losers along with title-holders to bring claims for compensation and rehabilitation, ii) bring compensation requirements in accordance with existing reality, and iii) introduce requirements of consent and social impact assessment. The Report shows that litigation helps channelise political contestation of state action into legal as opposed to extra legal disputes. Therefore, by empowering hitherto disempowered land losers to bring claims under the LARR Act, the Act will help preempt extra-legal conflict. Since conflict inevitably stalls or derails legitimate development projects, it is in the interest of the government to comply with, and not subvert the LARR Act. Legal reforms must be supplemented by administrative and bureaucratic reforms: The Report highlights that legal reform is a necessary but not a sufficient precondition for ensuring greater equity and efficiency within the land acquisition process. In the absence of administrative and bureaucratic reforms, the introduction of the LARR Act will not succeed in eliminating inequities and inefficiencies embedded within the implementation of existing land acquisition procedures. In fact, the increase in procedural requirements under the LARR Act implies an even greater need for securing executive compliance with the rule of law, in order to translate the equities intended by these additional procedures into reality for land losers. Types of administrative reforms required: Such administrative reforms include building of state capacity to meaningfully comply with the increased procedural requirements stipulated by the LARR Act, and designing institutional structures that incentivise such compliance with the rule of law. This, in turn, requires a serious mind-set shift within the government toward accepting the reform enshrined in the LARR Act, and not subverting it as we have seen in both the LARR Ordinance, and the state amendments to the LARR Act, as also the rules adopted to implement the LARR Act in the states.
Topic:
History, Reform, Economic growth, Land Law, Courts, Supreme Court, Rule of Law, and Land Rights
Political Geography:
South Asia, India, and Asia

34. Intelligence Services: Roles and responsibilities in good security sector governance

Author:
Fairlie Chappuis and Ronja Harder
Publication Date:
01-2017
Content Type:
Special Report
Institution:
Geneva Centre for Security Sector Governance (DCAF)
Abstract:
This SSR Backgrounder explains the roles and responsibilities of intelligence services in good security sector governance (SSG). Intelligence services perform an essential security function by providing governments with timely and relevant information necessary to protect the security of states and their societies. Applying the principles of good SSG to intelligence services makes them both effective and accountable within a framework of democratic governance, the rule of law and respect for human rights. This SSR Backgrounder answers the following questions: What are intelligence services? What do intelligence services do? How is intelligence produced? What intrusive legal powers do intelligence services hold? How can intelligence services comply with good security sector governance? How does security sector reform benefit intelligence services? How can secrecy be made compatible with good governance? What is international intelligence cooperation?
Topic:
Security, Human Rights, Intelligence, Governance, and Rule of Law
Political Geography:
Geneva and Global Focus

35. Iraq’s Year of Rage

Author:
Mieczyslaw P. Boduszynski
Publication Date:
10-2016
Content Type:
Journal Article
Journal:
Journal of Democracy
Institution:
National Endowment for Democracy
Abstract:
Iraqis of all ethnic and sectarian groups are fed up with the ineptitude and corruption of their political leaders and the institutions they control. Since 2015, they have turned out in record numbers to protest against their political elite. The protests that unfolded in 2015 and 2016 have highlighted two failings of Iraq’s post-2003 “democratic” order: 1) the entrenchment of a corrupt “partyocracy” that has captured the state and deepened sectarian divisions, and 2) the weakness of state institutions and the absence of the rule of law that have encouraged widespread corruption and fostered broad popular distrust of the post-Saddam Iraqi state.
Topic:
Social Movement, Democracy, Rule of Law, Protests, and Diversity
Political Geography:
Iraq and Middle East

36. Armed Private Security in Latin America and the Caribbean: Oversight and Accountability in an Evolving Context Regional Study

Author:
Alan Bryden, Nelleke van Amstel, Emmylou Boddi, Jean-Michel Rousseau, Mélanie Régimbal, William Godnick, Julián Bustamante, Lidia Espinoza, Alfredo Malaret, Amanda Cowl, Diego Fleitas, Ana Yancy Espinoza, Antoine Perret, Federico Moughty, and Gastón Schulmeister
Publication Date:
01-2016
Content Type:
Case Study
Institution:
Geneva Centre for Security Sector Governance (DCAF)
Abstract:
DCAF and the United Nations Regional Centre for Peace, Disarmament and Development in Latin America and the Caribbean (UNLIREC) have undertaken a regional study on armed private security in Latin America and the Caribbean, aimed at presenting an updated picture of the private security sector as well as the challenges the sector faces in terms of regulation and small arms control. The private security industry in Latin America and the Caribbean has grown significantly over the last 20 years. The study identified 16,174 private security companies in the region, with more than 2,450,000 legal employees working as security guards. Looking across the region, a number of important challenges can be identified in relation to the armed private security sector. These include a lack of specific and complete legal frameworks; informal private security markets; absence of a whole-of-government approach to regulation and oversight; insufficient institutional capacities for regulation and oversight; unclearly defined training requirements for PSC and their personnel; and the physical security and weapons management of PSCs. This newly gained knowledge is intended to support policy makers, national authorities and industry actors in their efforts to revise and strengthen their approaches to private security oversight and regulation in line with international standards and best practices. Strengthening private security regulation in the region contributes to reinforce both the rule of law and citizen security
Topic:
Security, Armed Forces, Weapons, Disarmament, and Rule of Law
Political Geography:
Geneva, United Nations, Latin America, and Caribbean

37. Vote Buying with Illegal Resources: Manifestation of a Weak Rule of Law in Mexico

Author:
Gilles Serra
Publication Date:
04-2016
Content Type:
Journal Article
Institution:
German Institute of Global and Area Studies
Abstract:
Mexico’s consolidation strategy seems to be reaching a limit. The country’s transition from authoritarianism was largely based on a series of electoral reforms that leveled the playing field in elections. While this strategy was initially successful, it has failed to address several problems, especially in the electoral arena. This essay analyzes the preva- lence of two such problems, vote buying and illegal campaign finance, which are closely connected. I draw evidence from available accounts of the 2012 presidential election and subsequent contests in problematic states such as Tabasco. The outcomes of the midterm elections of June 2015 are also used to assess whether previous electoral reforms have provided effective solutions to the problems analyzed here. I suggest that no legal reform will be effective while these laws are only being weakly enforced. A more comprehensive package of measures strengthening the rule of law would help Mexico transition from electoral democracy to liberal democracy.
Topic:
Authoritarianism, Elections, Rule of Law, and Illiberal Democracy
Political Geography:
Latin America, North America, and Mexico

38. The High Council of Judges and Prosecutors in Turkey: Roundtable Discussion on Its New Structure and Operations

Author:
Onur Bayramoğlu
Publication Date:
01-2013
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
One of the most critical areas of reform in Turkey’s recent history involves the judiciary, which has served to corroborate the tutelary regime. With a discourse emphasizing that the judiciary itself must also be bound by the “rule of law”, the Justice and Development Party (JDP) took a number of steps toward reforming the administration of supreme judiciary bodies, as well as the judiciary in general. The constitutional amendments brought to the ballot in the referendum of 12 September 2012 essentially represented an initiative to transform the judiciary. The amendments package was intended to equip the Constitutional Court and the High Council of Judges and Prosecutors (HSYK) with a more pluralist structure. This report titled “the High Council of Judges and Prosecutors in Turkey: Roundtable Discussion on its New Structure and Operations” is based on discussions of the roundtable meeting attended by representatives from judges and prosecutors professional associations such as YARSAV (The Association of Judges and Prosecutors) and Demokrat Yargı (Democratic Judiciary Association), which adopted divergent positions over the course of the referendum; one representative from HSYK, the direct addressee in the debate; and experts with diverse opinions. With the roundtable, we intended to generate direct discussion by experts and practitioners of the field in a small group affording sufficient time for speakers. As a result, we treated the current situation and practice through an insider’s perspective and in detail. This also provided a shared platform where parties coming from varying political positions exchanged opinions regarding both the HSYK and several contested aspects of the judiciary reform. The roundtable ensured that critiques were communicated to and discussed with the directly relevant parties through face-to-face conversations.
Topic:
Democratization, Law, Rule of Law, Justice, and Judiciary
Political Geography:
Turkey and Middle East

39. Promoting the Rule of Law Abroad: Towards a Multi-Dimensional Approach

Author:
Manuel Balán
Publication Date:
01-2013
Content Type:
Policy Brief
Institution:
Institute for the Study of International Development, McGill University
Abstract:
Few if any issues are as crucial in ensuring sustainable development as the promotion and consolidation of the Rule of Law (henceforth RoL). In fact, RoL has become a major ingredient in analyses of what is missing in countries struggling for political and economic development. Yet, this objective remains elusive, as there is limited knowledge of what policies work in promoting the Rule of Law. With this in mind, this paper analyzes CIDA’s approach to RoL promotion, tracking how different programs promoted by CIDA addressed RoL concerns. Overall, and despite the term having been left out of CIDA’s priorities for some time, the organization shows interest and investment in RoL related projects. Yet, CIDA’s approach has lacked a clear and explicit direction, and has emphasized projects dealing with capacity building.
Topic:
Corruption, Development, Governance, Rule of Law, and Political Science
Political Geography:
Global Focus

40. Human Rights Standards for Targeted Sanctions

Author:
David Cortright and Erika de Wet
Publication Date:
01-2010
Content Type:
Policy Brief
Institution:
Fourth Freedom Forum
Abstract:
Support for human rights principles is essential for sustaining political support for the fight against global terrorism. Nothing erodes support for antiterrorism measures more than the perception that such programs are eroding basic individual freedoms. Disregard for the rule of law and an overreliance on repressive measures alienates many of the social groups and political constituencies whose cooperation is needed in the collective struggle against terrorism.
Topic:
Human Rights, Terrorism, Sanctions, and Rule of Law
Political Geography:
Global Focus