In Strategies of Compliance with the European Court of Human Rights, Andreas von Staden looks at the nature of human rights challenges in two enduring liberal democracies—Germany and the United ...Kingdom. Employing an ambitious data set that covers the compliance status of all European Court of Human Rights judgments rendered until 2015, von Staden presents a cross-national overview of compliance that illustrates a strong correlation between the quality of a country's democracy and the rate at which judgments have met compliance. Tracing the impact of violations in Germany and the United Kingdom specifically, he details how governments, legislators, and domestic judges responded to the court's demands for either financial compensation or changes to laws, policies, and practices.Framing his analysis in the context of the long-standing international relations debate between rationalists who argue that actions are dictated by an actor's preferences and cost-benefit calculations, and constructivists, who emphasize the influence of norms on behavior, von Staden argues that the question of whether to comply with a judgment needs to be analyzed separately from the question of how to comply. According to von Staden, constructivist reasoning best explains why Germany and the United Kingdom are motivated to comply with the European Court of Human Rights judgments, while rationalist reasoning in most cases accounts for how these countries bring their laws, policies, and practices into sufficient compliance for their cases to be closed. When complying with adverse decisions while also exploiting all available options to minimize their domestic impact, liberal democracies are thus both norm-abiding and rational-instrumentalist at the same time—in other words, they choose their compliance strategies rationally within the normative constraint of having to comply with the Court's judgments.
It has never been more important to understand how international law enables and constrains international politics. By drawing together the legal theory of Lon Fuller and the insights of ...constructivist international relations scholars, this book articulates a pragmatic view of how international obligation is created and maintained. First, legal norms can only arise in the context of social norms based on shared understandings. Second, internal features of law, or 'criteria of legality', are crucial to law's ability to promote adherence, to inspire 'fidelity'. Third, legal norms are built, maintained or destroyed through a continuing practice of legality. Through case studies of the climate change regime, the anti-torture norm, and the prohibition on the use of force, it is shown that these three elements produce a distinctive legal legitimacy and a sense of commitment among those to whom law is addressed.
»Normative Legitimacy of Law, Morality and Human Rights in the Light of the Positivist Separation Thesis«: On the basis of the positivist separation thesis, this study provides in-depth answers to ...the question of the manner in which state law, international law, morality and human rights can be considered normatively legitimate and what this legitimacy means in each case. The focus is not on specific substantive criteria of legitimacy, such as democratic procedures or certain notions of justice. Rather, the question is more fundamentally about the formal conditions of legitimacy.
Why Noncompliance traces the history of noncompliance within the European Union (EU), focusing on which states continuously do or do not follow EU Law, why, and how that affects the governance in the ...EU and beyond. n exploring the EU's long and varied history of noncompliance, Tanja A. Börzel takes a close look at the diverse groups of noncompliant states throughout the EU's existence. Why do states that are vocally critical of the EU have a better record of compliance than those that support the EU? Why has noncompliance been declining since the 1990s, even though the EU was adding member-states and numerous laws? Börzel debunks conventional wisdoms in EU compliance research, showing that noncompliance in the EU is not caused by the new Central and Eastern European member states, nor by the Eurosceptic member states. So why do these states take the brunt of Europe's misplaced ire? Why Noncompliance introduces politicization as an explanatory factor that has been long overlooked in the literature and scholarship surrounding the European Union. Börzel argues that political controversy combined with voting power and administrative capacity, explains why noncompliance with EU law has been declining since the completion of the Single Market, cannot be blamed on the EU's Central and Easter European member states, and is concentrated in areas where EU seeks to protect citizen rights.
This book is a comprehensive study on the application of international law in domestic law, with a particular focus on the concept of direct applicability. It critically examines the domestic ...application of international law and puts forward a new framework.
Common-law interpretive methodologies are mostly nonbinding, but some interpretive methodologies are seen as binding precedent. This Article offers an explanation for this state of affairs. Whereas ...the extant scholarship on common-law interpretive methodologies offers descriptive accounts (often assuming that common-law methodologies are per se nonbinding) and normative analysis, this Article fills a gap in the literature by providing a realist explanation for the legal landscape of binding interpretive methodologies. It identifies whether a methodology is rule-like, and whether it increases judicial legitimacy and/or court power as "pull factors"--that is, incentives that might attract judges to recognize interpretive methodologies as binding. It also identifies high stakes (i.e., broad methodological scope) and constitutional argumentation over methodologies as "push factors"--that is, obstacles to finding methodologies to be binding. This approach explains the current landscape of interpretive methodologies and also enables predictions about the stability of existing binding interpretive methodologies.
Courts without Borders is the first book to examine the politics of judicial extraterritoriality, with a focus on the world's chief practitioner: the United States. For much of the post-World War II ...era, the United States has been a frequent yet selective regulator of activities outside its territory, and US federal courts are often on the front line in deciding the extraterritorial reach of US law. At stake in these jurisdiction battles is the ability to bring the regulatory power of the United States to bear on transnational disputes in ways that other states frequently dislike both in principle and in practice. This volume proposes a general theory of domestic court behavior to explain variation in extraterritorial enforcement of US law, emphasizing how the strategic behavior of private actors is important to mobilizing courts and in directing their activities.
This paper addresses two issues of primary importance to the protection of fundamental rights in EU. First, it examines the future place of judgments of the European Court of Human Rights in EU ...jurisprudence against the backdrop of the recent (negative) Opinion of the Court of Justice on EU accession to the European Convention of Human Rights. Secondly, the paper explores the notion of the scope of application of EU fundamental rights with regard to Member States' action in the light of the ruling of the Court of Justice in Akerberg Fransson. With regard to the former question, it will be here argued that the case law of the Court of Human Rights maintains its position in the EU legal system due to the combined effects of Article 6(3) TEU and Article 52(3) of the EU Charter of Fundamental Rights. From the point of view of the Convention, the same is reflected in the 'Bosphorus' jurisprudence of the Court of Human Rights. As regards the second issue, the demarcation between the parameters of EU fundamental rights protection and the sphere in which Member State law retains exclusive responsibility over fundamental rights has been afforded deeper precision, both by the cases of Akerberg Fransson itself and in subsequent rulings. This is considered to be a welcome development.
Iowa law enforcement agencies use routine vehicle roadblocks for a variety of purposes, some of which should no longer be permitted. This Note examines the history of Fourth Amendment analysis and ...the pertinent caselaw validating the use of routine vehicle roadblocks as a policing tactic. It further explores the use of routine vehicle roadblocks in Iowa and the relationship between Iowa's courts and legislature on the matter. It presents data gathered from newspaper articles across the state to shed light on the issue. Further, this Note argues that the accessible data shows that the current construction of Iowa Code section 321K.1 is not restrictive enough to appropriately balance the interests of individuals and society. Thus, the Iowa Legislature should amend the first subsection of Iowa Code section 321K.1 to appropriately balance these interests.
