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Article

Existing theories of international law are largely state-centric. While international cooperation can benefit all, states are often tempted to violate their promises in order to manage economic and political crises. States must accordingly balance enforcement against flexibility: legal institutions must provide enough enforcement that states comply most of the time yet also provide enough flexibility that states can violate during crises. Such a balance is possible when laws are crafted and enforced by unitary actors that will tolerate occasional violations by others in order to preserve their own right to occasionally violate. However, the changing doctrine of sovereign immunity has dramatically transformed the actual practice of international law. Non-state actors and domestic courts play an increasingly important role in challenging state legal violations, generating a divergence between the theory and practice of contemporary international law. This divergence is apparent in many issue areas, including terrorism, human rights, sovereign debt, and foreign investment. This divergence suggests that political scientists and legal scholars must reconsider the limits of state-centric theories and examine the role of non-state actors and domestic courts.

Article

Political scientists—primarily in the discipline’s international relations subfield—have long studied international law. After considering how political scientists and legal scholars define international law, this article identifies five stages of political science research on international law, including the current interdisciplinary international law and international relations (IL/IR) stage, and it reviews three trends in political science research that constitute an emerging sixth stage of interdisciplinary scholarship: a law and world politics (L/WP) stage. First, moving beyond the “IL” in IL/IR scholarship, international relations scholars are increasingly studying domestic law and domestic courts—not only their foundational role in supporting international law and international courts but also their direct role in core areas of international relations, including international conflict and foreign policy. Second, moving beyond the “IR” in IL/IR scholarship, political scientists are adapting their research on international law to the broader world politics trend in political science by studying types of law—including extraterritoriality, conflict of laws, private international law, and the law of transnational commercial arbitration—that govern the transnational activity of private actors and can either support or hinder private global governance. Third, moving beyond the domestic-international divide, political scientists are increasingly rejecting “international law exceptionalism,” and beginning to take advantage of theoretical convergence across the domestic, comparative, and international politics subfields to develop a better general understanding law and politics.

Article

There is a global trend of democratic retrenchment across the world, in both new and more established democracies. The African continent is part of the trend, although there are distinct regional variances on the continent. Yet, despite democratic gains in some states and along some dimensions of democratic rights, the overall trend is that the democratic gains won in the period after 1990 are now eroding. Democracy is challenged in ways that pose threats to freedom of speech, association, and information, the ability to choose political leaders, protection of personal integrity and private life, and the rule of law with recourse to independent courts. As part of a global trend of democratic backsliding, African states have adopted legal restrictions on key civil and political rights that form the basis of democratic rule in a range of countries, from dominant party regimes such as Zimbabwe, Rwanda, and Tanzania to competitive electoral democracies like Zambia, Senegal, and Malawi. In South Africa, where democracy and rule of law appear deeply institutionalized, the succession battles and exposed levels of corruption under President Zuma, now removed from the leadership of the ANC party, suggest a weakening of the institutions intended to check executive powers. The September 2017 court annulment of the Kenyan elections suggests that the courts were able to perform an important accountability function and safeguard free and fair elections. Yet, the aftermath of the 2017 Kenyan elections culminated in early 2018 with President Uhuru Kenyatta closing down television and radio stations. Civil society actors, policy makers, and scholars warn against the democratic backlash and its negative implications for domestic and international politics. Internationally, the African democratic backlash challenges global actors who have long pressured developing countries to politically liberalize. Yet, following what appears to be a global trend of democratic backsliding, space for international influence and the spread of liberal norms is closing rapidly. Domestically, the observed backlash against democracy may pose further social and political threats with wide-reaching implications for development. This may, in turn, challenge the implementation of Sustainable Development Goals (SDGs). Whereas closing space for civil society impacts first and foremost on voice and participation, restrictions on civil society ultimately may curb even the most seemingly apolitical activities such as humanitarian relief. At present, there is limited understanding of possible response mechanisms to the conscious attempts at democratic rollback from political elites. How do activists come together to advocate for particular rights? When are activists more effective in generating mass citizen support for their campaigns? How can researchers, international actors, and domestic civil society organizations work together to disseminate and use knowledge about organizational resilience in these circumstances? These will be pressing questions for scholars and activists going forward.

Article

Until the end of the 1980s, most observers believed that democratic prospects in Africa were limited, given the low level of economic development, the absence of strong nation-states, and the inexistence of a long history of social and political pluralism. However, beginning in 1989, a wave of popular protests demanding democratic reforms swept the continent. Within a couple of years, virtually all the countries liberalized their political systems. Since then, Africans have shown consistently that they strongly prefer and support democratic rule. At the same time, democratic institutions such as electoral commissions and constitutional courts have taken root on the continent. These developments suggest that the question of the feasibility of democracy in Africa is no longer relevant. Nonetheless, the existence of democratic demands, support, and institutions does not mean that democracy is easy to establish and consolidate. In many African countries, democratic gains are reversible and face several hindering factors, including state weakness, autocratic mindset, unstable and divided civic and political organizations, and widespread identity politics. This is why the level and quality of democracy on the African continent vary dramatically from country to country and from one region to another.

Article

In Europe, two budgetary treaties were adopted in 1970 and 1975, respectively. They changed the budgetary procedures on the founding treaties of the European Communities (EC). The main reason was the introduction of the concept of “own resources” in 1970 to replace national financial contributions. It was decided that customs duties, agricultural levies, and a certain percentage of the value-added tax (VAT) in the Member States should go to the EC budget. Since that would remove the budget control of the national parliaments, it was argued that the European Parliament should have budgetary powers. The argument was especially developed by the European Parliament. The Member States eventually accepted the argument, but with some hesitation, so in the end the Parliament got less than it demanded. The Member States focused on control and the Parliament focused on legitimacy. The Commission fought for its own prerogatives. Apart from empowering the European Parliament, the second budgetary treaty in 1975 also created the European Court of Auditors. And prior to the signing of the treaty, the institutions (Commission, Council, and Parliament) had also agreed to introduce a conciliation procedure as a part of the budgetary process. This was done by an inter-institutional agreement outside the new treaty. Tracing the processes of adopting the two treaties shows that there was a great deal of inter-institutional bargaining, but also inter-governmental bargaining within the Council of Ministers, where France arguably was the “laggard” in 1970, joined by Denmark in 1975, after the first enlargement in 1973. The United Kingdom, preoccupied with its renegotiation of membership and a referendum in June 1975, had a relatively low profile in the negotiations. Scholars have debated the explanatory power of the liberal intergovernmental approach (with emphasis on the role of the Member States), contrasting it with some institutionalist approach considered better suited to explaining these treaty reforms. Leading scholars have especially applied sociological and historical institutionalism.

Article

Federiga Bindi

Italy is a founding member state of the European Coal and Steel Community (ECSC) and, subsequently, the European Economic Community (EEC). At the time, membership meant anchoring the newborn Italian democracy, regaining international respectability after the Fascist period renewed vest internationally , and securing much-needed economic support to boost development. While in the 1950s the left side of the political spectrum vehemently opposed ECSC/EEC membership, starting with the late 1980s, European integration became the most important pillar of Italian foreign policy, an issue of shared consensus among different partiesa. The golden period for Italy – that is the phase when Italy was at the peak of its influence in the Communities - was the decade ranging from the mid 1980s to the mid 1990s,. At the time, Italian politicians such as Giulio Andreotti played fundamental roles in key moments of EEC/EU history: enlargement to the south, the single market, the Treaty of the European Union, and especially the creation of the euro are all key events in the history of the European Union which is safe to say would have never happened without the skillful contribution of Italy’s key government actors of the time. As European integration started again to be a contentious issue in domestic politics, so declined Italy’s influence. In more recent years: despite Italy’s formal status as a “big” member of the EU, Rome became less relevant than Madrid in EU decision making procedures. The parochial attitude of Italian elites, the incapacity of long-term programming, and relative government instability are all factors that have contributed to reducing the role of Italy in the EU.

Article

The civil war was a turning point in the life of the faith community in Sierra Leone, which previously had been politically complacent. With the establishment of the Inter-Religious Council (IRC), Christian and Muslim religious leaders joined together with a unified voice based on shared values to first, mediate the conflict and second, promote reconciliation through the establishment of the Truth and Reconciliation Commission (TRC). The efficacy of faith-based initiatives is attributed to many factors: the vast numbers of religious adherents, a far-reaching infrastructure of churches and mosques, close partnerships with international organizations, untainted reputation of clerics, and sacred texts that promote peace. Reconciliation is a dominant theme in both Christianity and Islam, giving religious leaders a powerful tool in bringing warring sides who share these faith commitments to the peace table, and, also, postconflict in encouraging restorative mechanisms, such as truth commissions that aim at reconciliation among enemies, over more retributive ones, such as courts. Like the earlier South African Truth and Reconciliation Commission (SATRC), which was headed by Archbishop Desmond Tutu, the Sierra Leone TRC was headed by a religious leader, Bishop Joseph Humper, then president of the Inter-Religious Council. Like the SATRC, it turned to religious notions of confession and redemption that resonated in a very religious society, where 60% of the population are Muslims and 30% are Christians. It was only partially successful, however, because of the existence of the Special Court for Sierra Leone operating contemporaneously, which was based on a punitive model of justice. Because of confusion about the two institutions’ different mandates, and fear of being prosecuted by the Court, even low-level perpetrators hesitated to testify at the TRC, limiting its ability to reconcile enemies. Unfortunately, the international community prioritizes justice over reconciliation, and is less supportive of restorative approaches that may resonate more deeply with religious people in postconflict societies.

Article

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

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.