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221. Trans Legal Mapping Report: Recognition before the law (2017)

Author:
Zhan Chiam, Sandra Duffy, and Matilda González Gil
Publication Date:
11-2017
Content Type:
Special Report
Institution:
ILGA World (International Lesbian, Gay, Bisexual, Trans and Intersex Association)
Abstract:
The Trans Legal Mapping Report is a research project by ILGA World, detailing the impact of laws and policies on trans persons across the globe. Its latest edition, released in September 2020, covers the legal situation in 143 UN member States: it highlights provisions which set out how trans and gender-diverse people can change their sex/gender marker and names on official identity documents (legal gender recognition), but also collects information on laws criminalising trans identities, both explicitly and de facto – looking at the situation for our communities in every region of the world. All too often, processes for gender marker and name change include requirements that are blatant human rights violations: this report outlines them clearly, but also shows progressive examples from across the world. Compiling information both through desk-based research and the lived realities of trans activists across the world, the ILGA World Trans Legal Mapping Report is a fundamental tool that advocates can use to engage with their national governments and bring about change.
Topic:
Government, Human Rights, Law, LGBT+, and Transgender
Political Geography:
Global Focus

222. State-Sponsored Homophobia (2017)

Author:
Aengus Carroll and Lucas Ramón Mendos
Publication Date:
05-2017
Content Type:
Special Report
Institution:
ILGA World (International Lesbian, Gay, Bisexual, Trans and Intersex Association)
Abstract:
Every year, ILGA World publishes its State-Sponsored Homophobia report, a world survey of sexual orientation laws. Since its first edition, back in 2006, ILGA World’s State-Sponsored Homophobia has been a fundamental resource for those interested in accessing the core information on legislation affecting people on the basis of their sexual orientation. Not only human rights defenders, but also civil society organisations, governmental and United Nations agencies, allies and media worldwide value the publication as one of the main sources of information on the issue. The publication is accompanied by a series of maps and charts illustrating where criminalisation, protection and recognition laws exist.
Topic:
Human Rights, Law, LGBT+, and Homophobia
Political Geography:
Global Focus

223. The First and Last Word in Debates: Plaintive Plaintiffs

Author:
Elena D'Agostino and Daniel J. Seidmann
Publication Date:
05-2017
Content Type:
Working Paper
Institution:
Nottingham Interdisciplinary Centre for Economic and Political Research (NICEP)
Abstract:
Is it better to have the first or the last word in debates? The answer, in two-round debates like common law trials, depends on whether litigants share the available evidence. If so, then litigants never prefer to present first, but may prefer to present second. However, litigants may otherwise prefer to present first because doing so replicates the follower's ex ante optimal commitment.
Topic:
Law, Courts, Debates, and Litigation
Political Geography:
Global Focus

224. Corporate Scandals and Regulation

Author:
Luzi Hail, Ahmed Tahoun, and Clare Wang
Publication Date:
12-2017
Content Type:
Working Paper
Institution:
Institute for New Economic Thinking (INET)
Abstract:
Are regulatory interventions delayed reactions to market failures or can regulators proactively pre-empt corporate misbehavior? From a public interest view, we would expect “effective” regulation to ex ante mitigate agency conflicts between corporate insiders and outsiders, and prevent corporate misbehavior from occurring or quickly rectify transgressions. However, regulators are also self-interested and may be captured, uninformed, or ideological, and become less effective as a result. In this registered report, we develop a historical time series of corporate (accounting) scandals and (accounting) regulations for a panel of 26 countries from 1800 to 2015. An analysis of the lead-lag relations at both the global and individual country level yields the following insights: (i) Corporate scandals are an antecedent to regulation over long stretches of time, suggesting that regulators are typically less flexible and informed than firms. (ii) Regulation is positively related to the incidence of future scandals, suggesting that regulators are not fully effective, that explicit rules are required to identify scandalous corporate actions, or that new regulations have unintended consequences. (iii) There exist systematic differences in these lead-lag relations across countries and over time suggesting that the effectiveness of regulation is shaped by fundamental country characteristics like market development and legal tradition.
Topic:
Economics, Law, Regulation, Finance, Capital, and Fraud
Political Geography:
Global Focus

225. Follow-the-Leader? Measuring the Internalisation of Law

Author:
Shaun Larcom, Luca Panzone, and Tim Swanson
Publication Date:
01-2017
Content Type:
Working Paper
Institution:
Centre for International Environmental Studies, The Graduate Institute (IHEID)
Abstract:
Expressive law is said to induce compliance with stated principles without a price on noncompliance. We empirically assess this proposition, by attempting to dis-entangle the impacts of a legal change (a 5p charge on use of plastic bags), on individual choices. We do so by measuring both behaviours and attitudes across the first two months of the legal change, and by comparing the impacts across neighboring jurisdictions both with and without the change. Using mediation analysis, we find that the self-reported change in internal motivation explains only about 10% of the change in behaviour. Interestingly, we find that the scale of the sanction (charge) is both irrelevant (because jurisdictions without sanctions still exhibit changed behaviour) and important (because the size of the sanction signals the reasonableness of the law).
Topic:
Law, Behavior, and Internalization of Law
Political Geography:
Global Focus

226. Communist Secret Police Unveil the Love of a Lifetime

Author:
Bob Baker
Publication Date:
01-2016
Content Type:
Journal Article
Journal:
American Diplomacy
Institution:
American Diplomacy
Abstract:
Supreme Court Justice Antonin Scalia came to address a national convention of Australian lawyers. I had requested a top constitutional lawyer and was delighted when Washington headquarters at the U.S. Information Agency in 1986 told me Justice Scalia would spend a week on the program I had suggested. He gave a brilliant exposition on the origins of the American Constitution at the big lawyers convention. His close interpretation of how the Constitution should be read in contemporary America was impressive. The several hundred lawyers loudly applauded his scholarly, but lively lecture.
Topic:
Diplomacy, Law, Supreme Court, and Memoir
Political Geography:
Australia, North America, and United States of America

227. Mapping Dilutions in a Central Law

Author:
Kanchi Kohli and Debayan Gupta
Publication Date:
08-2016
Content Type:
Working Paper
Institution:
Centre for Policy Research, India
Abstract:
For the last two years, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has been in the eye of debate and discussed for the controversial changes the National Democratic Alliance (NDA) government had sought to bring about through ordinances. Even though fate of the amendments rests currently with the Joint Parliamentary Committee report, several states have already brought about changes through Rules under Section 109 of the Act. An examination of these state specific Rules reveals they are headed towards: Adopting the changes proposed in the ordinances amending the central law; Diluting the applicability of the progressive clauses like consent or SIA; Clarifying procedures for implementation at the state level. The United Progressive Alliance (UPA) government had replaced the Land Acquisition Act, 1894 with the newly enacted RFCLARR Act, 2013. Though critiqued for expanding the definition of public purpose to include the private sector, the new legislations had been welcomed by social movements, farmers groups and NGOs. This is primarily for the need for a Social Impact Assessment (SIA), the requirement for prior consent, food security provisions and clear compensation related provisions. What was also central to this discussion were the clauses which allow for unused land to be returned to original owners. The Rules framed by the States aim to make the process of land acquisition much simpler for investors. While certain States reduce the time period for the conducting of the SIA process or do away with it in its entirety, there are others who make reductions in the compensation award or modify the applicability of the retrospective clause. There are also States which directly adopt the provisions in the ordinance that aim to remove the requirement for consent from the land acquisition procedure. This working paper paper attempts to trace and analyse how the state governments have modified and built upon the central Act. It also looks briefly at litigation that has emerged especially around the applicability of the retrospective clause of the law, ie. which requires the return of unused land to original owners or reinitiating processes under the 2013 law.
Topic:
Development, Government, Law, Food Security, Land Law, and Social Policy
Political Geography:
South Asia, India, and Asia

228. Penalising Environmental Violations: An Analysis of The Ministry’s Proposal

Author:
Shibani Ghosh
Publication Date:
01-2016
Content Type:
Working Paper
Institution:
Centre for Policy Research, India
Abstract:
In October 2015, the Ministry of Environment, Forest and Climate Change released a Draft Environment Laws (Amendment) Bill 2015 proposing amendments to the Environment (Protection) Act 1986 and the National Green Tribunal Act 2010. The stated objective of the Bill is to provide ‘effective deterrent penal provisions’ and to introduce the concept of monetary penalty. It also aims ‘to minimise the exercise of discretion and make an unambiguous framework’. This paper summarises the text of the Bill and analyses whether it will complement the environmental objectives the parent laws espouse. It discusses some of the major concerns relating to the proposed amendments under three broad themes: environmental damage and penalties, adjudicating authorities and rule making powers. It concludes that although penalties that effectively deter violators are certainly the need of the hour, the proposed amendments are unlikely to achieve this objective.
Topic:
Climate Change, Environment, Law Enforcement, Law, Legislation, and Deterrence
Political Geography:
South Asia, India, and Asia

229. The Perfect Storm: The closing space for LGBT civil society in Kyrgyzstan, Indonesia, Kenya, and Hungary

Author:
Meg Davis
Publication Date:
04-2016
Content Type:
Special Report
Institution:
Global Philanthropy Project (GPP)
Abstract:
While the late 20th century saw a blossoming of civil society organizations, the beginning of the 21st century has been a period of upheaval. In response to both the threat of terrorism and to growing populist pressure for democracy, transparency, and government accountability, states have used new laws and tactics to restrict freedom of association and freedom of expression. Lesbian, gay, bisexual, and transgender (LGBT) organizations have always faced such barriers, ranging from criminalization of same-sex sexuality, to refusal of the right to register organizations or hold public events, to the shutdown of websites.1 In recent years, some countries have also ratified new laws that explicitly prohibit groups engaged in “LGBT propaganda.” In other countries, politicians have mobilized resurgent nationalism by publicly scapegoating LGBT groups as representing “foreign values.” These overlapping trends have created a “perfect storm” for LGBT civil society organizations caught in simultaneous waves of political pressure.
Topic:
Civil Society, Government, Law, Freedom of Expression, Discrimination, LGBT+, Marginalization, and Philanthropy
Political Geography:
Kenya, Indonesia, Kyrgyzstan, Hungary, and Global Focus

230. State of play of Kosovo’s international legal cooperation

Author:
Bardha Maxhuni
Publication Date:
11-2016
Content Type:
Special Report
Institution:
Kosovar Centre for Security Studies (KCSS)
Abstract:
In the globalizing world that we are living, international legal cooperation in criminal matters is an inevitable and necessary instrument in order to prevent and combat transnational crime, which poses serious problems for national security and justice system. Crime affects each one of us, and fighting it must be a shared goal for all countries despite their political differences and relations between each other. In the current circumstances, the process of extradition, mutual legal assistance, transfer of criminal proceedings, execution of foreign sentences, recognition of foreign criminal judgments, confiscation of the proceeds from crime, collection and exchange of information, between intelligence and law enforcement services, is an imminent need in the fight against criminality.
Topic:
Crime, International Cooperation, National Security, and Law
Political Geography:
Eastern Europe and Kosovo

231. Breakfast Talk by Thuli Madonsela (former Public Protector of South Africa)

Author:
Rosalie Dieleman and David Lando
Publication Date:
11-2016
Content Type:
Working Paper
Institution:
Public International Law Policy Group
Abstract:
Ms. Madonsela is the former Public Protector of South Africa, Chairperson of the African Ombudsman Research Center in South Africa, and one of the drafters of the South African post-Apartheid constitution. She has been in the spotlight during the last year for a report she filed before leaving the Office of the Protector regarding the connection between South African President Zuma and Indian-South African lucrative businessmen Ajay, Atul, and Rajesh Gupta. The report “details a disturbing web of influence exerted over parts of the South African state by a powerful family of Mr. Zuma’s chums”,[1] the Gupta family. The report indicates that the Gupta family was involved in political appointment, including that of the South African finance minister.
Topic:
Apartheid, Corruption, Law, and Legal Theory
Political Geography:
Africa, South Africa, and Southern Africa

232. Handbook on Civil Society Documentation of Serious Human Rights Violations

Author:
Federica D'Alessandra, Sander Couch, Ilina Georgieva, Marieke de Hoon, Brianne McGonigle Leyh, and Jolien Quispel
Publication Date:
01-2016
Content Type:
Commentary and Analysis
Institution:
Public International Law Policy Group
Abstract:
Increasingly, civil society actors engage in documentation and investigation processes, seeking to collect evidence against those responsible for serious human rights violations. The purpose of this Handbook is to provide guidelines and best practices for the collection and management of information on serious human rights situations for those that are not professionally trained in such documentation practices. While the Handbook strongly emphasizes the need to refrain from investigating human rights abuses and to refer to professionals, practice shows that this is not always possible. Only under such circumstances and as a last resort may civil society actors consider engaging in certain documentation practices and not in others, always seeking to include professionals when and where possible. They may however only do so by adhering to the ethical principles and documentation guidelines that are provided in this Handbook. These enable unofficial investigators to do no harm, identify security risks, preserve crime scenes, prevent the loss of evidence, and manage the information in manner that preserves confidentiality, security and probative value, with an eye to possible use in later redress processes and without jeopardizing the future work of professionally trained and officially appointed investigators.
Topic:
Security, Civil Society, Human Rights, and Law
Political Geography:
Global Focus

233. Hebrew Sources in the Doctrine of the Law of Nature and Nations in Early Modern Europe

Author:
Charles Leben
Publication Date:
01-2016
Content Type:
Journal Article
Abstract:
This article sets out to re-examine Hebrew sources in the doctrine of the law of nations of the 17th century, from Gentili’s De Jure Belli Libri Tres (although it strictly belongs to the 16th century since it was first published in 1598) to Pufendorf’s De Jure Naturae et Gentium (1672). It incontrovertibly confirms the importance of Jewish sources in the general intellectual education of the founding fathers of international law and in their general political philosophy while limiting their role with respect to the construction of international law in the strict and contemporaneous sense of the term.
Topic:
International Law, Religion, Political Theory, History, Law, and Judaism
Political Geography:
Europe and Mediterranean

234. Illegal Markets: Boundaries and Interfaces between Legality and Illegality.

Author:
Renate Mayntz
Publication Date:
03-2016
Content Type:
Working Paper
Institution:
Max Planck Institute for the Study of Societies
Abstract:
In sociology generally, the infringement of legal norms is not treated as a special kind of norm violation, the sociology of law being an obvious exception. The study of illegal markets therefore faces the challenge of distinguishing illegality from legality, and relating both to legitimacy. There is no conceptual ambiguity about the distinction between legal and illegal if legality is formally defined. In practice, (formal) legality and (social) legitimacy can diverge: there is both legitimate illegal action and illegitimate legal action. Illegal markets are a special kind of illegal social system, constituted by market transactions. Illegal markets are empirically related to organized crime, mafia and even terrorist organizations, and they interact both with legal markets and the forces of state order. Where legal and illegal action systems are not separated by clear social boundaries, they are connected by what has come to be called “interfaces”: actors moving between a legal and an illegal world, actions that are illegal but perceived as legitimate or the other way around, and a gray zone of actions that are neither clearly legal nor illegal, and neither clearly legitimate nor illegitimate. Interfaces facilitate interaction between legal and illegal action systems, but they are also sources of tension and can lead to institutional change.
Topic:
Crime, Markets, Sociology, and Law
Political Geography:
Global Focus

235. Empowered or Disempowered? The Role of National Parliaments during the Reform of European Economic Governance.

Author:
Aleksandra Maatsch
Publication Date:
01-2016
Content Type:
Working Paper
Institution:
Max Planck Institute for the Study of Societies
Abstract:
This paper investigates how the intergovernmental reform process of European economic governance affected national parliaments’ oversight of this policy area. Which parliaments became disempowered and which managed to secure their formal powers – and why? The dependent variable of the study is operationalized as the presence or absence of “emergency legislation” allowing governments to accelerate the legislative process and minimize the risk of a default by constraining national parliaments’ powers. The paper examines how national parliaments in all eurozone states were involved in approving the following measures: the EFSF (establishment and increase of budgetary capacity), the ESM, and the Fiscal Compact. The findings demonstrate that whereas northern European parliaments’ powers were secured (or in some cases even fostered), southern European parliaments were disempowered due to the following factors: (i) domestic constitutional set-up permitting emergency legislation, (ii) national supreme or constitutional courts’ consent to extensive application of emergency legislation, and (iii) international economic and political pressure on governments to prevent default of the legislative process. Due to significant power asymmetries, national parliaments remained de jure but not de facto equal in the exercise of their control powers at the EU level. As a consequence, both the disempowerment of particular parliaments and the asymmetry of powers among them has had a negative effect on the legitimacy of European economic governance.
Topic:
Politics, Governance, Law, and Reform
Political Geography:
Europe

236. Back to Basics: Re-affirming the Rule of Law in the Western Balkans

Author:
Bojan Elek, Milena Milosevic, and Stevo Muk
Publication Date:
12-2016
Content Type:
Policy Brief
Institution:
Belgrade Centre for Security Policy
Abstract:
Evidence shows that progress in democracy and rule of law reforms in the region, albeit different across countries, is slow. Even when it has been achieved, progress has generally been more technical rather than directly focusing on politically sensitive issues.
Topic:
Political Theory, Law, and Democracy
Political Geography:
Balkans

237. Trans Legal Mapping Report: Recognition before the law (2016)

Author:
Zhan Chiam, Sandra Duffy, and Matilda González Gil
Publication Date:
11-2016
Content Type:
Special Report
Institution:
ILGA World (International Lesbian, Gay, Bisexual, Trans and Intersex Association)
Abstract:
The Trans Legal Mapping Report is a research project by ILGA World, detailing the impact of laws and policies on trans persons across the globe. Its latest edition, released in September 2020, covers the legal situation in 143 UN member States: it highlights provisions which set out how trans and gender-diverse people can change their sex/gender marker and names on official identity documents (legal gender recognition), but also collects information on laws criminalising trans identities, both explicitly and de facto – looking at the situation for our communities in every region of the world. All too often, processes for gender marker and name change include requirements that are blatant human rights violations: this report outlines them clearly, but also shows progressive examples from across the world. Compiling information both through desk-based research and the lived realities of trans activists across the world, the ILGA World Trans Legal Mapping Report is a fundamental tool that advocates can use to engage with their national governments and bring about change.
Topic:
Government, Human Rights, Law, LGBT+, and Transgender
Political Geography:
Global Focus

238. State-Sponsored Homophobia (2016)

Author:
Aengus Carroll
Publication Date:
10-2016
Content Type:
Special Report
Institution:
ILGA World (International Lesbian, Gay, Bisexual, Trans and Intersex Association)
Abstract:
Every year, ILGA World publishes its State-Sponsored Homophobia report, a world survey of sexual orientation laws. Since its first edition, back in 2006, ILGA World’s State-Sponsored Homophobia has been a fundamental resource for those interested in accessing the core information on legislation affecting people on the basis of their sexual orientation. Not only human rights defenders, but also civil society organisations, governmental and United Nations agencies, allies and media worldwide value the publication as one of the main sources of information on the issue. The publication is accompanied by a series of maps and charts illustrating where criminalisation, protection and recognition laws exist.
Topic:
Human Rights, Law, LGBT+, and Homophobia
Political Geography:
Global Focus

239. State Practice on Sovereign Immunity in Employment Disputes Involving Embassy and Consular Staff

Author:
Julia Brower
Publication Date:
12-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
This report identifies and analyzes foreign case law and statutes on sovereign immunity in employment disputes brought by dismissed embassy and consular staff from twenty-seven countries and two international courts. State practice remains quite diverse, and it is not possible to identify one clear, specific majority test for whether foreign States are immune in such disputes. However, several recent trends exist, with state practice in Europe in particular starting to coalesce around a common approach. The findings of this report must be considered with the limitations of the research in mind. The vast majority of case law surveyed in this report is from Europe and English-speaking countries. Only a handful of translated decisions or statutes from Latin America, Africa, and Asia could be found, and significantly, this report does not include any decisions from China or Brazil.
Topic:
Law, Protected People, Diplomatic Immunity, and Sovereign Immunity
Political Geography:
Global Focus

240. General Principles Regarding the Legal Validity of RUD

Author:
Eric Chung
Publication Date:
12-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
This paper examines the legal validity of reservations, understandings, and declarations (RUDs) in both U.S. and international courts. The analysis is based on 46 U.S. cases discussing RUDs as a general category and 26 U.S. cases discussing interpretative understandings and declarations, out of approximately 650 reviewed cases. The analysis is also based on 13 cases from international courts out of approximately 300 reviewed cases, including cases from the International Court of Justice (ICJ), the United Nations Convention on the Law of the Sea (UNCLOS) tribunal and arbitral bodies, the European Court of Human Rights, and the Inter- American Court of Human Rights. In the U.S. cases, RUDs are nearly always recognized as valid. For example, non-self- execution reservations in the Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR) are usually treated as legally controlling. The same is true for the reservation to the ICCPR that reserves the right to use capital punishment on juveniles despite treaty prohibitions, as well as interpretative understandings and declarations defining specific terms used in the CAT. U.S. courts have only questioned the validity of RUDs when they were not properly communicated to other state parties, did not support a contrary interpretation, or focused on issues of wholly domestic concern (although the only case on this point was vacated and is not precedential). In addition, individual circuit judges, writing in dissent, have examined whether RUDs violate the separation of powers principle or are inconsistent with the treaty language and international law. With few exceptions, international courts also usually defer to RUDs. The ICJ has indicated that it can invalidate a reservation as incompatible with the object and purpose of a treaty pursuant to Article 19 of the Vienna Convention on the Law of the Treaties. Yet the ICJ has only invalidated a RUD when it determined that a reservation was in fact an interpretative declaration (as opposed to a reservation modifying the state’s legal obligations under the treaty). This has been particularly important in cases where the treaty in question prohibits reservations, such as the UNCLOS. Rules stipulated by a treaty also shape how other courts review RUDs. The European Court of Human Rights, for instance, applies treaty rules to invalidate RUDs that are of a general character or fail to include a statement of the law concerned. Following a number of practices can reduce a RUD’s vulnerability to invalidation in U.S. and international courts. For U.S. courts, a RUD is extremely unlikely to be questioned if it is documented clearly at the time of ratification and communicated to all treaty parties at the time of ratification. For international courts, a RUD is unlikely to be questioned if, in addition to the above factors, it is not counter to the “object and purpose” of a treaty, it is not objected to by other parties, and it is not a reservation masquerading as an interpretive declaration in a situation where reservations are prohibited by the relevant treaty.
Topic:
Human Rights, Law, Legal Theory, and Courts
Political Geography:
United States of America and North America