International institutions undermine their credibility if they ignore grave human rights violations. How can we shape these institutions to prevent this from happening?
The paper will address this question through a case study – the mass killing of prisoners of conscience in China for their organs. The conclusion of several research studies and an international tribunal is that evidence of this abuse exists beyond a reasonable doubt, and has existed since 2006. Yet, international institutions, with a few exceptions, have been unresponsive to this evidence, undermining trust in those institutions.
The paper will survey the international instances which have responded to this abuse and those which, despite efforts to engage them, have done nothing. The paper will attempt to set out what are the defects in the inactive institutions which have made them unresponsive and will make suggestions for reform which would allow for an enhancement of trust.
After some hesitation the Court of Justice of the EU accepted (in N.S. opinion 2/13, Căldăraru and LM) that the principle of mutual trust, even if of utmost importance for creating the Area of Freedom, Security and Justice, is not an absolute one. The ECtHR firstly warned in Avotiņš that mutual trust presumption as described by the CJEU in 2/13 opinion may in practice run counter the standard protected by the Convention according to which “the court in the State addressed must at least be empowered to conduct a review commensurate with the gravity of any serious allegation of a violation of fundamental rights in the State of origin”. But later in Romeo Castaño it endorsed in totality the CJEU’s standard of protection of fundamental rights in case of instruments based on mutual trust. This standard can be in contradiction with standard set out by German Constitutional Court which stated that “German public authority must not assist other states in violating human dignity”.
Since 1989, when the democratisation of the country begun only two governments could serve their full four-year mandate. The lack of trust in political actors and the functioning of the state organs is evident. In recent years the narrative concerning distrust has directed towards the question of institutional legitimacy of the judicial system. The issue of institutional legitimacy of the judiciary can be assessed from different perspectives, depending on institutional framework and governmental structure. For example in the the USA the politicization of the Supreme Court ( Robert A. Dahl), is self-evident, it has a policy-shaping role and serves as an ultimate legitimizer of the government’s policy. But Romania is a civil law country, with a semi-parliamentary system, where the independence of judiciary from any political interference is a key element of the democratic functioning, it is important to raise the question whether institutional legitimacy can be a reasonable expectation.
International courts function as an important pillar of the international rule of law. However, in recent years, many international courts have faced pushback by several types of actors. This has spurred considerable interest in analysing the performance of international courts. This paper contributes to this research by assessing the role of trust for the performance of international courts. It analyses how trust that actors have in international courts contributes to building robust authority of international courts – and inversely, due to which mechanisms, the lack of trust can undermine this authority.
The Treaty of Waitangi was signed on 6 February 1840 by the British Crown (the colonising power) and Maori (the indigenous people of New Zealand). The colonial authorities had insisted that the Crown would not acquire New Zealand as a British territory without the free consent of Maori. The pact entered into at Waitangi established a bicultural State that gave legitimacy to the British Crown in New Zealand. The Treaty has remained in the national consciousness. It has not been consigned to history but is a living instrument, symbolising the struggles that shape the national character. This paper records the changing attitudes towards the Treaty since 1840. From its inception, it was solemnly upheld. Then, it was dismissed as a “mere nullity” and languished for over 100 years. From there, It underwent a renaissance; it now stands at the forefront of national life,directing dialogue between Maori and Pakeha New Zealanders.
Judges actively participate in this country’s political agenda, shaping speeches and implementing their interests. Their alliances play the role of a “collective intelligence”. The relations between politics, legal agents and society are a approach to understand the ruptures in Brazilian democracy that directly involve the agents of the legal system and their associations and identities. Opposition of political views and polarized judges to the level of inability to dialogue between peers. In this scenario, are Judicial Court Schools neutral arenas for the meeting of “opponents”? Can they be used for building communication and trust among these judges. To answer that question, we are developing a behavioral research and discourse analysis experiment at the Faculty of Law of the Federal Labor Court of Rio de Janeiro, including liberal and socially oriented judges during and after a communication training program. The partial results are what we present and discuss in this meeting.
The social and legal constitution of New Zealand has undergone a revolution in the last forty years centered around a reconceptualization of the role and practical effects of Te Tiriti o Waitangi of 1840 which is now regarded as the foundational ‘constitutional’ document. In parallel there has been a renaissance of Te Roa Māori as an official state language (1987) and the educational system and Government is called upon to acknowledge ‘the principles of the Treaty of Waitangi, and the bicultural foundations of Aotearoa/New Zealand’.
But what does or would mean it mean to ‘have bicultural foundations’? The wine industry is taken as the object of study as it has developed from the experiments in the 1970s to a world player currently. Images, concepts and claims of expressing place drawn from Te ao Māori are widely used; but is this a search for a new identity in a self-confident bi- or multi-cultural social evolving arena – a blending of epistemologies – or cultural appropriation?
Social networks have benefited from a liability model that departs from the traditional liability conception and that insulates online service providers from the obligation and the responsibility to surveil and monitor the actions of their users. This model is now in crisis and service providers find themselves more and more subjected to specific obligations to monitor under national european laws. This is in part the consequence of their own moderation efforts, which deems social networks knowleageable of illegal activities of their users. It seems that new models are emerging. Models that rely on self-, public, and hybrid solutions of co-regulation. The paper aims to assess and discuss some of these new models comparing the traditional approach of EU countries, with general contractual clauses under the E-Commerce Directive and the new german model of regulated self-regulation. The papers finishes by submitting both to the recent CJEU “Eva Glawischnig-Piesczek v. Facebook” decision.
This paper pushes back against the extant conceptualisation of political parties in comparative constitutional law, by locating party politics at the heart of the Indian constitutional structure. Although the original Indian Constitution was party agnostic, the subsequent constitutionalization of party politics offers a distinctive role of parties in the constitutional order. In particular, this paper deals with the principle of (non)partisanship, which shapes the relationship between political parties and constitutional organs. This principle, I will argue, takes two forms – partisan parliamentarism and partisan federalism – articulating two different conceptions of the role of parties in the operation of the legislature and Centre-State relations respectively. I will conclude with implications of this distinctive status of parties for the regulation of party finance, factionalism, electoral speech and candidate selection.
Chile radically changed its housing policy regime in the late 1970s into a market-based system. Since then, the government has focused on providing targeted subsidies to low-income families as a way of stimulating the private supply of affordable housing. Although many experts have praised the quantitative success of Chile’s market-based housing policy, the implementation of this regime has had some very problematic aspects. One of these is the agglomeration of low-income families in isolated neighborhoods, usually located in the periphery of Chilean cities. This problem has motivated the government in recent years to implement new policies in this sector. Drawing on the varieties of capitalism literature, the main question this paper asks is whether these new forms of state intervention in the housing sector constitute a fundamental shift from the neoliberal regime Chile adopted in the 1970s, and if they involve a more promising approach to address the problem of urban segregation.