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Article

The Politics of Prosecuting Genocide and War Crimes in Asia  

John Ciorciari

Delivering justice for genocide, war crimes, and other mass atrocities inevitably presents steep political challenges. That has certainly been true in Asia, where relatively few such international crimes have been prosecuted. Many Japanese were tried for war crimes following the Second World War, but for decades thereafter, the region saw only a few ill-fated efforts to advance justice for mass crimes. Some political space for accountability opened after the Cold War, enabling the creation of tribunals in Timor-Leste, Cambodia, and Bangladesh to address some of the many instances of impunity in Asia. Some observers have welcomed these trials as important efforts to advance accountability in a region rife with impunity. Still, the design and performance of these tribunals have reflected the difficulty of subjecting politically empowered or protected actors to justice. In each instance, trials have focused on suspects defeated at the ballot box or on the battlefield, prompting charges of victor’s justice. In other cases, including Indonesia, Sri Lanka, and Myanmar, even mounting an accountability process has proven a formidable challenge. In a region where Westphalian sovereignty and the norm of noninterference are strong, the will of incumbent domestic authorities remains the political linchpin for accountability efforts. In Asia as elsewhere, prosecuting international crimes requires exploiting windows of political possibility, although typically at the cost of accepting highly selective justice.

Article

Legal Repression in Russia  

Katerina Tertytchnaya and Madeleine Tiratsoo

Contemporary authoritarian regimes use the law in order to stifle their rivals’ ability and willingness to challenge the state. Research has investigated the conditions that make legal repression more likely in electoral autocracies and advanced our understanding of the ways in which legislation may be used for repressive ends in these settings. To a lesser extent, studies have also explored the consequences of legal repression in nondemocracies, focusing on its impact on dissent, opposition leaders, protesters, and civil society. This article discusses how, in Vladimir Putin’s Russia, the law has been used to exercise political power vis-à-vis the opposition. Since the early 2000s, the Russian authorities have used legislative channels to adopt and refine laws and regulations aimed at hindering protest and inhibiting the development of an independent civil society. The discussion of the Russian case contributes to comparative research on legal repression and authoritarian politics in various ways. First, it offers important insights into the direct and indirect consequences of legal repression on dissent, the development of civil society, and public opinion toward groups targeted by legal repression. Second, the study of Russia illustrates how institutional capture and power consolidation facilitate the adoption and implementation of repressive legislation. Finally, the Russian case advances our understanding of the dynamic nature of legal repression. Reforms to laws regulating protest and civil society in Russia showcase how domestic and external events may cause legal repression to escalate. The article concludes by identifying fruitful avenues for future research on legal repression.

Article

Femicidio and Feminicidio Laws in Latin America  

Pamela Neumann

Femicidio refers to the murder of a woman because of her gender. Feminicidio emphasizes the role of the state in enabling these crimes and the impunity with which they are treated. Feminist legal activism and the development of supranational and regional human rights instruments throughout the 1990s and 2000s were essential to the development of femicidio/feminicidio laws across Latin America. As of 2018, such laws were in effect in 18 countries across the region. However, the precise content and scope of laws criminalizing femicidio/feminicidio vary. For example, in the case of Mexico, transnational feminist legal activism, including a case brought before the Inter-American Human Rights Court, was essential to shaming the Mexican state into codifying feminicidio. This process was facilitated by the presence of feminist legislators within the Mexican legislature, who advocated for such legislation. In the case of Nicaragua and Peru, local feminist advocacy and copious documentation of the scope of the problem of femicidio/feminicidio proved more significant in the ultimate codification of femicidio/feminicidio. However, the legal advances against gender violence achieved in Nicaragua in 2012 were subsequently undone due to pressure from men’s rights and religious conservatives, leading to the weak implementation of the law criminalizing femicidio.

Article

Europe’s Supranational Courts and LGBT Rights  

M. Joel Voss

Europe has some of the most powerful human rights legal institutions in the world including two supranational human rights courts—the Council of Europe’s European Court of Human Rights and the European Union’s Court of Justice (hereafter, together—the Courts). After decades of relative quiet, the Courts have begun hearing more cases concerning LGBT rights. Judgments of the Courts have advanced some facets of LGBT rights like anti-discrimination in the workplace while disappointing gay-rights advocates in other areas, for example family life and asylum. Scholarship on European courts and LGBT rights is not as developed as scholarship on norm advocacy or policy diffusion within states in Europe. The research that does exist looks at how decisions by the European Court of Human Rights and the European Court of Justice deal with current European law, how the institutions are designed, or how the supranational courts may act as agents of change or status quo institutions in shaping wider European behavior. This lack of newer research on the Courts presents ample opportunity for new avenues of research that examines not only how decisions are made at the Courts but also how states implement decisions and how states view the legitimacy of each Court.

Article

Legal and Policy Battles Over Same-Sex Relationships  

Erez Aloni

Since the 1980s, lesbian, gay, bisexual, transgender, and queer (LGBTQ) social movements worldwide have put significant energy into securing relationship rights. In the 1970s, however, the general sentiment in such movements in the Occident had been anti-marriage and anti-nuclear family. This changed in the 1980s due to three factors: the impact of HIV/AIDS, which emphasized how vulnerable same-sex families are; the rise of families headed by same-sex parents who did not have the same protections as their different-sex counterparts; and globalization, which transferred the ideas about same-sex relationships among movements and created energy and useful policy connections. During the 1990s, a wave of marriage alternatives spread around the world, sometimes extended by legislatures and other times by courts. The rise of alternatives has raised these questions: are they a temporary compromise on the path to marriage equality; are they a replacement for marriage that is free of its historical discriminatory heritage; or are they proposing an additional legal institution alongside marriage? In the 2000s and since, marriage equality became realistic and more common as two dozen countries gradually extended marriage rights to same-sex couples, initially in Europe and North America, but later also in Australasia, in the entire Americas, and even—in fewer countries—in Asia and Africa. Incrementalism is the generally accepted theory for why progress occurs in some countries and delays in others. However, scholars have criticized the theory as descriptively inaccurate and, normatively, as portraying marriage as the final frontier for LGBTQ equality—thus contributing to that community’s emphasis on marriage equality to the neglect of other possible advocacy avenues. Further, the incrementalistic account should take into consideration that the path toward recognition is not linear and is international as well as national. Supranational courts have played an important role in the progress toward recognizing same-sex relationships; at the same time, the globalization of LGBTQ relationship rights has also resulted in a strong backlash and in regression in some countries.

Article

LGBT and Queer Politics in the Commonwealth  

Matthew Waites

The Commonwealth is the international governmental organization of states that emerged from the British empire, and since 2000 it has emerged as a focus for contestation relating to the regulation of same-sex sexualities, gender diversity, and diverse sex characteristics. Following colonial criminalizations focused on same-sex sexual acts, and later formal decolonizations, there have appeared many national movements for decriminalization and human rights in relation to sexuality and gender. The Commonwealth has emerged as a site of politics for some significant actors claiming human rights in relation to sexual orientation, gender identity and expression, and sex characteristics. This has been led by specific organizations of lesbian, gay, bisexual, and transgender (LGBT) people, increasingly with intersex people and allies, but it is also important to consider this in relation to queer people, understood more broadly here as people in all cultures experiencing forms of sexualities, biological sex and genders outside the social structure of heterosexuality, and its associated sex and gender binaries. A range of forms of activist and non-governmental organization (NGO) engagement have occurred, leading to shifts in Commonwealth civil society and among some state governments. This has required researchers to develop analyses across various scales, from local and national to international and transnational, to interpret institutions and movements. The British Empire criminalized same-sex sexual acts between males, and to a lesser extent between females, across its territories. In certain instances there were also forms of gender regulation, constraining life outside a gender binary. Such criminalization influenced some of those claiming LGBT human rights to engage the Commonwealth. Research shows that a majority of Commonwealth states continue to criminalize some adult consensual same-sex sexual activity. Yet the history of struggles for decriminalization and human rights within states in the Commonwealth has led up to such recent important decriminalizations as in India and Trinidad and Tobago in 2018. LGBT and queer activist engagements of the Commonwealth itself commenced in 2007 when Sexual Minorities Uganda and African allies demanded entry to the Commonwealth People’s Space during a Heads of Government meeting in Kampala. Activism has often focused on the biannual Heads of Government meetings that are accompanied by civil society forums. A particularly significant phenomenon has been the emergence of a “new London-based transnational politics of LGBT human rights,” evident in the creation from 2011 of new NGOs working internationally from the United Kingdom. Among these organizations was the Kaleidoscope Trust, which shaped the subsequent formation of The Commonwealth Equality Network as an international network of NGOs that became formally recognized by the Commonwealth. Significant developments occurred at the London Commonwealth Heads of Government meeting in April 2018; Prime Minister Theresa May expressed “regret” for past imperial criminalizations while announcing funding for Kaleidoscope Trust and other UK-based groups to use in international law reform work. These developments exemplify a wider problematic for both activists and analysts, concerning how LGBT and queer movements should engage in contexts that are still structured by imperial legacies and power relations associated with colonialism, persisting in the present.

Article

The Lisbon Treaty  

Jacques Ziller

The expression “the Lisbon Treaty” (LT) is a shortcut to the treaties upon which the European Union (EU) has been based since December 1, 2009. During the “reflection period” that lasted from June 2005 to December 2006 three options were available: remaining with the European treaties as amended by the Nice Treaty; starting new negotiations in order to adopt some changes deemed technically necessary; or trying to get “the substance” of the Constitutional Treaty (CT) of 2004 approved in the form a new treaty. Most member states and the EU institutions were in favor of the third option. The negotiations that led to the adoption of the LT in December 2007 departed from the usual treaty amendment scenarios. The content of the LT is to a large extent similar to that of the CT, as most of the novel provisions of that treaty have been taken over as they were written in the CT and introduced in the existing European Community (EC) and EU treaties. Apart from a few institutional innovations such as the Permanent President of the European Council and the new voting system in the Council, most innovations with regard to the European communities are to be found in the details. The ratification process of the LT was difficult, as it was slowed down by the necessity to hold two referenda in Ireland, and to overcome the resistance of the President of the Czech Republic, an overt Euroskeptic. The negotiations of 2007–2009 shed some light on the importance in EU policy-making and especially in treaty negotiations of the epistemic community of legal experts and, more precisely, of experts in EU law. Events in the years 2010 and 2011 led to minor treaty amendments, shaping the present content of what is usually referred to as the LT. Whether Brexit and the EP elections of 2019 will lead to important changes remains unknown.

Article

Israel and the European Union  

Sharon Pardo

Israeli-European Union (EU) relations have consisted of a number of conflicting trends that have resulted in the emergence of a highly problematic and volatile relationship: one characterized by a strong and ever-increasing network of economic, cultural, and personal ties, yet marked, at the political level, by disappointment, bitterness, and anger. On the one hand, Israel has displayed a genuine desire to strengthen its ties with the EU and to be included as part of the European integration project. On the other hand, Israelis are deeply suspicious of the Union’s policies and are untrusting of the Union’s intentions toward the Israeli-Palestinian conflict and to the Middle East as a whole. As a result, Israel has been determined to minimize the EU’s role in the Middle East peace process (MEPP), and to deny it any direct involvement in the negotiations with the Palestinians. The article summarizes some key developments in Israeli-European Community (EC)/EU relations since 1957: the Israeli (re)turn to Europe in the late 1950s; EC–Israeli economic and trade relations; the 1980 Venice Declaration and the EC/EU involvement in the MEPP; EU–Israeli relations in a regional/Mediterranean context; the question of Israeli settlements’ products entering free of duty to the European Common Market; EU–Israeli relations in the age of the European Neighbourhood Policy (ENP); the failed attempt to upgrade EU–Israeli relations between the years 2007 and 2014; and the Union’s prohibition on EU funding to Israeli entities beyond the 1967 borders. By discussing the history of this uneasy relationship, the article further offers insights into how the EU is actually judged as a global-normative actor by Israelis.

Article

The Judiciary and the Rule of Law in Africa  

Charlotte Heyl

In a liberal conception of democracy, courts play an important role in facilitating the rule of law by controlling the abidance to rules and by holding the political branches of government accountable. The power of constitutional review is a crucial element for exercising horizontal accountability. Courts across Africa are vested with the power of constitutional review, and, generally speaking, their independence has substantially increased since the beginning of the 1990s—although African courts enjoy overall less independence than the global average for courts’ independence. Within the African region, the level of judicial independence varies widely, between contexts that rarely allow judicial independence and contexts where courts have more power to challenge the government. Furthermore, across the continent, African courts experience undue interference—which frequently takes place informally. Informal interference can occur through the biased appointments of judges, verbal and physical threats, violent attacks, the payment of bribes, or the ouster of sitting judges. Informal networks—held together by ties based on shared educational trajectories, common leisure activities, religion, kinship relations, or political affiliations—are the channels through which such pressure can be transmitted. Yet judges also can actively build informal networks: namely, with the legal community, civil society, and international donors, so as to insulate themselves against undue interference and to increase institutional legitimacy. Research has shown that the agency of judges and courts in signaling impartial decision-making, as well as in reaching out to society, is crucial to constructing legitimacy in the African context. In contrast, the explanatory power of electoral competition as an incentive for power holders to support judicial independence is not straightforward in the context of Africa’s political regimes, where the prospect of losing office is associated with financial, and in some cases even physical, insecurity. However, research on judicial politics in Africa is still only preliminary, because the field requires more comparative studies in order to fully reveal the political repercussions on Africa’s judiciaries as well as to delineate the scope conditions of the prominent theories explaining judicial independence.

Article

Lithuania and the European Union  

Ramūnas Vilpišauskas

For Lithuania, the geopolitical motive to join the European Union (EU) in order to prevent a repetition of the 1940s occupation has been as important as a motive to “return to Europe.” This motivation to become part of the West led the country’s political elites to conceptualize accession into the EU as an important part of the transition reforms which were expected to modernize Lithuania’s economy, public administration, and governance as well as contribute to the country’s security and create conditions for economic catching up. Membership in the EU, accession into NATO, and good neighborly relations became the three cornerstones of Lithuania’s foreign policy since the early 1990s and enjoyed broad political support. It was this support that arguably allowed for the maintenance of political and administrative mobilization and consistency of preparations for the membership during the pre-accession process. Public support for the EU membership remained above the EU average since accession in 2004. Around the time of accession, a new concept of Lithuania as “a regional leader” was formulated by the core of the nation’s foreign policy makers. The concept of a regional leader implied active efforts of mediating between Eastern neighbors and the EU, often in coordination with Poland, which was driven by the desire to stabilize the Eastern neighborhood and advance relations between Eastern neighbors and the EU and NATO. Although coalition building within the EU has been fluctuating between a strategic partnership with Poland and Baltic-Nordic cooperation, also most recently the New Hanseatic league, attention to the Eastern neighborhood and geopolitical concerns originating from perceived aggressive Russian policies remained a defining characteristic of the country’s European policy independent of personalities and political parties, which have been at the forefront of policy making. Completion of integration into the EU, in particular in the fields of energy and transport, as well as dealing with “leftovers” from accession into the EU, such as joining the Schengen area and the euro zone, became the other priorities since 2004. Lithuania has been one of the fastest converging countries in the EU in terms of GDP per capita since its accession. However, membership in the EU Single Market also had controversial side effects. Relatively large flows of emigrants to other EU member states generated political debates about the quality of governance in Lithuania and its long-term demographic trends such as a decreasing and aging population. Introduction of the euro in 2015 was perceived by the public as the main factor behind price rises, making inflation the most important public issue in 2016–2018. High per capita income growth rates as well as the prospect of the United Kingdom exiting the EU triggered discussions about excessive dependency on EU funding, the potential effects of its decline after 2020, and sources of economic growth. There are increasingly divergent opinions regarding further deepening of integration within the EU, especially in regard to alignment of member states’ foreign and security policies as well as tax harmonization. Still, membership in the EU is rarely questioned, even by those who oppose further integration and advocate a “Europe of nations.”