Human rights are claims that all human beings have to the protection of fundamental human needs, interests, and freedoms. Debates about human rights consider whether such rights exist, and if they do, whether they are necessarily institutional norms codifiable in law and correlated with government duties or are instead preinstitutional or natural in some sense. Debates about human rights focus on the moral and practical grounds for such rights, the subjects of human rights, the types of human rights—civil, political, social, material, collective—and the precise lists of rights that fall within these broad, overlapping types. Debates also address objections against human rights as a conceptual, normative, and practical framework. Objections focus on issues such as ethnocentricity, cultural imperialism, forfeitability, individualism, claimability, and an adversarial ethos, among others.
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Human Rights
Kimberley Brownlee and Rowan Cruft
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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.
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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.
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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.
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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.
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Enlargement Policy and European Union Politics
Eli Gateva
Enlargement has always been an essential part of the European integration. Each enlargement round has left its mark on the integration project. However, it was the expansion of the European Union (EU) with the 10 Central and Eastern European countries (CEECs), Cyprus, and Malta, unprecedented in scope and scale, which presented the EU with an opportunity to develop a multifaceted set of instruments and transformed enlargement into one of the EU’s most successful policies. The numerous challenges of the accession process, along with the immensity of the historical mission to unify Europe, lent speed to the emergence of the study of EU enlargement as a key research area. The early studies investigated the puzzle of the EU’s decision to enlarge with the CEECs, and the costs and benefits of the Eastern expansion. However, the questions about the impact of EU enlargement policy inspired a new research agenda. Studies of the influence of the EU on candidate and potential candidate countries have not only widened the research focus of Europeanization studies (beyond the member states of the Union), but also stimulated and shaped the debates on the scope and effectiveness of EU conditionality. Most of the analytical frameworks developed in the context of the Eastern enlargement have favored rational institutionalist approaches highlighting a credible membership perspective as the key explanatory variable. However, studies analyzing the impact of enlargement policy on the Western Balkan countries and Turkey have shed light on some of the limitations of the rationalist approaches and sought to identify new explanatory factors.
After the completion of the fifth enlargement with the accession of Bulgaria and Romania in 2007, the research shifted to analyzing the continuity and change of EU enlargement policy and its impact on the candidate and potential candidate countries. There is also a growing number of studies examining the sustainability of the impact of EU conditionality after accession by looking into new members’ compliance with EU rules. The impact of EU enlargement policy on the development of European Neighbourhood Policy (ENP) and comparative evaluations of the Union’s performance across the two policy frameworks have also shaped and expanded the debate on the mechanisms and effectiveness of the EU’s influence. The impact of the Eastern enlargement on EU institutions and policymaking is another area of research that has emerged over the last decade. In less than two decades, the study of EU enlargement policy has produced a rich and diverse body of literature that has shaped the broader research agendas on Europeanization, implementation, and compliance and EU policymaking. Comprehensive theoretical and empirical studies have allowed us to develop a detailed understanding of the impact of the EU on the political and economic transformations in central and eastern Europe. The ongoing accession process provides more opportunities to study the evolving nature of EU enlargement policy, its impact on candidate countries, the development of EU policies, and the advancement of the integration project.
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The International Criminal Court in Africa and the Politics of International Justice
Phil Clark
The International Criminal Court (ICC) has generated considerable controversy since it came into force in 2002, principally because of its overriding focus on African conflict situations and suspects. This has led to accusations that the ICC is a neocolonial meddler in African affairs, wielding undue and unaccountable influence over the domestic political arena. Drawing on the author’s field research in Uganda and the Democratic Republic of Congo since 2006 this article contends that the neocolonialism critique of the ICC exaggerates the power of the Court while underestimating the capacity of African states to use the ICC to their own ends. Delivering distanced justice from The Hague with limited expertise on African societies and spending scant time in the field, the ICC has failed to grapple sufficiently with complex political dynamics “on the ground.” Combined with the Court’s heavy reliance on state cooperation, these factors have enabled African governments to use the ICC to target their political and military enemies while protecting themselves from prosecution. This has also emboldened African states in continuing to commit atrocity crimes against civilians, especially during periods of mass conflict and fraught national elections. While claiming to hover above the political fray, the ICC has become heavily politicized and instrumentalized by African states, with lasting and damaging consequences for the practice of national politics across Africa. To avoid being willfully used by African governments, the ICC must bolster its political expertise and become politically savvier. Rather than claiming to be neutral while hovering above the domestic terrain, the ICC must embrace its inherently political nature and deliver justice in a way that improves rather than undermines the practice of national and community-level politics across Africa.
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Land-Related Conflict and Electoral Politics in Africa
Catherine Boone
Land-related disputes and land conflicts are sometimes politicized in elections in African countries, but this is usually not the case. Usually, land-related conflict is highly localized, managed at the micro-political level by neo-customary authorities, and not connected to electoral competition. Why do land conflicts sometimes become entangled in electoral politics, and sometimes “scale up” to become divisive issues in regional and national elections? A key determinant of why and how land disputes become politicized is the nature of the underlying land tenure regime, which varies across space (often by subnational district) within African countries. Under the neo-customary land tenure regimes that prevail in most regions of smallholder agriculture in most African countries, land disputes tend to be “bottled up” in neo-customary land-management processes at the local level. Under the statist land tenure regimes that exist in some districts of many African countries, government agents and officials are directly involved in land allocation and directly implicated in dispute resolution. Under “statist” land tenure institutions, the politicization of land conflict, especially around elections, becomes more likely. Land tenure institutions in African countries define landholders’ relations to each other, the state, and markets. Understanding these institutions, including how they come under pressure and change, goes far in explaining how and where land rights become politicized.
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Citizenship Law as the Foundation for Political Participation in Africa
Bronwen Manby
The question of membership and belonging is widely recognized to have been at the root of many political crises in Africa since independence. The legal frameworks for citizenship were largely inherited from the colonial powers and still show strong affinities across colonial legal traditions. However, most African states have enacted significant amendments to citizenship laws since independence, as they have grappled with issues of membership, aiming to include or exclude certain groups. Substantive provisions have diverged significantly in several countries from the original template. African states have shared global trends toward gender equality and acceptance of dual citizenship. In relation to acquisition of citizenship based on birth in the territory (jus soli) or based on descent (jus sanguinis), there has been less convergence. In all countries, naturalization is inaccessible to all but a few. Manipulation of citizenship law for political purposes has been common, as political opponents have at times been accused of being non-citizens as a way of excluding them from office, or groups of people have been denied recognition of citizenship as a means of disenfranchisement. Moreover, even in states where a substantial proportion of residents lack identity documents, it seems that the rules on citizenship established by law have themselves had an impact on political developments.
The citizenship status of many thousands of people living in different countries across Africa remains unclear, in a context where many citizens and non-citizens lack any identity documentation that records their citizenship. The content of the law is arguably therefore less influential than in some other regions. A rapid development in identification systems and the increasing requirement to show identity documents to access services, however, is likely to increase the importance of citizenship law.
In response to these challenges, the African continental institutions have developed, through standard setting and in decisions on individual cases, a continental normative framework that both borrows from and leads international law in the same field.
