The Law Behind Rule of Law Transfers最新文献

A Theoretical Introduction and Legal Perspective on Rule of Law Transfers 法治转移的理论介绍与法律视角

The Law Behind Rule of Law Transfers Pub Date : 1900-01-01 DOI: 10.5771/9783845298481-9

Till Patrik Holterhus

引用次数: 0

The Law Behind Rule of Law Promotion in Fragile States – The Case of Afghanistan 脆弱国家推进法治背后的法律——以阿富汗为例

The Law Behind Rule of Law Transfers Pub Date : 1900-01-01 DOI: 10.5771/9783845298481-175

A. Wiik, Frauke Lachenmann

{"title":"The Law Behind Rule of Law Promotion in Fragile States – The Case of Afghanistan","authors":"A. Wiik, Frauke Lachenmann","doi":"10.5771/9783845298481-175","DOIUrl":"https://doi.org/10.5771/9783845298481-175","url":null,"abstract":"Rule of law (RoL) promotion has become a go-to-tool in the complex process of stabilizing and rebuilding (post-)conflict States. The process is driven by a heterogeneous group of national, foreign, and international actors who define and prescribe RoL norms and standards, who programme, finance, implement, and eventually monitor RoL reforms. While the legitimacy and effectiveness of RoL promotion has undergone scrutiny, particularly within the overall context of international development assistance, an aspect that has so far received little attention is the legality of RoL promotion. This concerns both the mandate of the various actors and the execution of RoL activities on the ground. Since 2001, the international community has intensely supported the RoL in Afghanistan rendering it a veritable testing ground for RoL promotion. The article explores the legal framework for actors in RoL promotion in Afghanistan from 2001 up to the present day, with a focus on the German Government, its development cooperation agencies, and private non-governmental organizations (NGOs). The article shows that while detailed rules bind the monitoring and evaluation of RoL activities in line with the existing international frameworks for development assistance, few laws and principles guide the programming and implementation of RoL promotion. The existing standards are generally too abstract to guide specific RoL promotion activities. Further concretization and harmonization is necessary in the interest of the sustainability of RoL promotion in Afghanistan – and elsewhere. 173 The Law Behind Rule of Law Promotion in Fragile States","PeriodicalId":170039,"journal":{"name":"The Law Behind Rule of Law Transfers","volume":"64 2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122105274","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

The Dawn of Article 18 ECHR – A Safeguard Against European Rule of Law Backsliding? 《欧洲人权公约》第18条的曙光——防范欧洲法治倒退的保障?

The Law Behind Rule of Law Transfers Pub Date : 1900-01-01 DOI: 10.5771/9783845298481-113

F. Tan

{"title":"The Dawn of Article 18 ECHR – A Safeguard Against European Rule of Law Backsliding?","authors":"F. Tan","doi":"10.5771/9783845298481-113","DOIUrl":"https://doi.org/10.5771/9783845298481-113","url":null,"abstract":"This article\u0000examines an underexplored avenue for the protection of the rule of law in\u0000Europe: Article 18 of the European Convention on Human Rights. This provision prohibits\u0000States from restricting the rights enshrined in the European Convention for any\u0000other purpose than provided for in the Convention. In this contribution, the\u0000author argues, based on a combination of textual, systematic and purposive\u0000interpretations of Article 18, that the provision is meant to safeguard against\u0000rule of law backsliding, in particular because governmental restrictions of\u0000human rights under false pretenses present a clear danger to the principles of\u0000legality and the supremacy of law. Such limitations of rights under the guise\u0000of legitimate purposes go against the assumption of good faith underlying the\u0000Convention, which presupposes that all States share a common goal of\u0000reinforcing human rights and the rule of law. Article 18 could therefore\u0000function as an early warning that European States are at risk of becoming an\u0000illiberal democracy or even of reverting to totalitarianism and the destruction\u0000of the rule of law. The article then goes on to assess the extent to which the\u0000European Court’s case-law reflects and realizes this aim of rule of law\u0000protection, and finds that whereas the Court’s earlier case-law left very\u0000little room for an effective application of Article 18, the November 2017 Grand\u0000Chamber judgment in Merabishvili v.\u0000Georgia has made large strides in effectuating the provision’s raison d’etre. As the article shows,\u0000however, even under this new interpretation, challenges remain.","PeriodicalId":170039,"journal":{"name":"The Law Behind Rule of Law Transfers","volume":"74 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126810991","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 5

The Rule of Law à la ICTY – What the ICTY Deemed Just Good Enough and How it Supported the Countries in the Former Yugoslavia to Become Better 前南问题国际法庭的法治——前南问题国际法庭认为刚刚好以及它如何支持前南斯拉夫国家变得更好

The Law Behind Rule of Law Transfers Pub Date : 1900-01-01 DOI: 10.5771/9783845298481-225

Kei Hannah Brodersen

引用次数: 0

Constitutionalism and the Mechanics of Global Law Transfers 宪政与全球法律转移机制

The Law Behind Rule of Law Transfers Pub Date : 1900-01-01 DOI: 10.5771/9783845298481-37

Andreas L. Paulus, J. Leiss

引用次数: 0

Promoting the Rule of Law Through the Law of Occupation? An Uneasy Relationship 以占领法促法治?不稳定的关系

The Law Behind Rule of Law Transfers Pub Date : 1900-01-01 DOI: 10.5771/9783845298481-147

A. Müller

{"title":"Promoting the Rule of Law Through the Law of Occupation? An Uneasy Relationship","authors":"A. Müller","doi":"10.5771/9783845298481-147","DOIUrl":"https://doi.org/10.5771/9783845298481-147","url":null,"abstract":"A core objective of the law of occupation has traditionally been that the occupying power should heed rule of law standards in the administration of the occupied territory. Less clear is whether it should also seek to inculcate rule of law standards into the local government. To be sure, the pertinent rules of the law of occupation provide for far-reaching competences of the occupying power. However, given the predominately negative, security-focused and conservationist nature of the occupier’s powers, its involvement in the “rule of law transfer” business should not be overrated. While it is true that two major post-1945 developments, i.e. international human rights law and the involvement of the UN Security Council, have contributed toward broadening, recalibrating, and dynamizing the applicable legal standards in situations of occupation, it is nonetheless crucial to resist the temptation to concede, in the name of promoting the rule of law, too much legislative leeway to the occupying power. Thus, the question whether, and to what extent, the law of occupation mandates the occupying power to engage in promoting the rule of law in the occupied territory, calls for a differentiated, and cautious, answer. 145 Promoting the Rule of Law Through the Law of Occupation?","PeriodicalId":170039,"journal":{"name":"The Law Behind Rule of Law Transfers","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114526141","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

International Investment Law and the Rule of Law 国际投资法与法治

The Law Behind Rule of Law Transfers Pub Date : 1900-01-01 DOI: 10.5771/9783845298481-271

Peter-Tobias Stoll

引用次数: 3

The Legal Dimensions of Rule of Law Promotion in EU Foreign Policy – EU Treaty Imperatives and Rule of Law Conditionality in the Foreign Trade and Development Nexus 欧盟外交政策中促进法治的法律维度——欧盟条约的必要性和对外贸易与发展关系中的法治条件

The Law Behind Rule of Law Transfers Pub Date : 1900-01-01 DOI: 10.5771/9783845298481-73

Till Patrik Holterhus

{"title":"The Legal Dimensions of Rule of Law Promotion in EU Foreign Policy – EU Treaty Imperatives and Rule of Law Conditionality in the Foreign Trade and Development Nexus","authors":"Till Patrik Holterhus","doi":"10.5771/9783845298481-73","DOIUrl":"https://doi.org/10.5771/9783845298481-73","url":null,"abstract":"This article demonstrates that Arts. 21 and 3 (5) of the Treaty on European Union (TEU) as well as Arts. 205, 207 (1), 208 (1), 209 (2) of the Treaty on the Functioning of the European Union (TFEU), legally oblige the European Union (EU) to promote the rule of law in its foreign trade and development policy. Furthermore, it is shown that, in the context of such promotion, the EU applies not a rudimentary but a sophisticated concept of the rule of law – quite similar to the concept of the rule of law that has developed within the Union. To fulfill the legal obligation to promote the rule of law abroad, the EU employs, as a key instrument, the legal mechanism of conditionality, not only through autonomous instruments but also in its contractual international relationships (carrot-and-stick policy). The EU’s foreign policy in the trade and development nexus, in particular when it comes to the promotion of the rule of law, can, therefore, be considered a process, to a large extent, determined and organized the of law. 73 The Legal Dimensions of Rule of Law Promotion in EU Foreign Policy A. Introduction – A Legal Perspective The EU pursues a policy of promoting the rule of law. This applies not only within the EU – regarding its own Member States1 and in the course of EU accession procedures2 – but also with respect to legal orders beyond the EU’s own (future) territory and jurisdiction. For this policy of promoting the rule of law aboard, the EU employs a variety of instruments.3 However, as the globally leading entity in development cooperation4 and one of the world’s largest trading powers,5 the EU is particularly well-positioned to pursue the policy of exporting values, such as the rule of law, 1 See L. Pech & K. L. Scheppele, ‘Illiberalism Within: Rule of Law Backsliding in the EU’, in K. Armstrong (ed), Cambridge Yearbook of European Legal Studies (2017), 3; see also the contributions of L. W. Gormley, P. Wennerås, M. Broberg, L. Besselink, F. Amtenbrink, R. Repasi, O. Stefan, A. von Bogdandy, C. Antpöhler, M. Ioannidis & J. W. Müller, in A. Jakab & D. Kochenov (eds), The Enforcement of EU Law and Values (2017); see also C. Closa & D. Kochenov, ‘Reinforcement of the Rule of Law Oversight in the European Union: Key Options’, in W. Schroeder (ed), Strengthening the Rule of Law in Europe (2016), 173; [Schroeder (ed), Rule of Law in Europe], E. Crabit & N. Bel, ‘The EU Rule of Law Framework’, in ibid., 197. 2 F. Emmert & S. Petrovic, ‘The Past, Present, and Future of EU Enlargement’, 37 Fordham International Law Journal (2014) 5, 1349, 1349-1355; H. de Waele, Legal Dynamics of EU External Relations (2017), 157-162. 3 See extensively, though with a particular focus on human rights, V. Haász, J. Jaraczewski & K. Podstawa, ‘The FRAME Toolbox for the EU Fundamental and Human Rights Policies’, European Commission, GA No. 320000 (2017); see also M. Cremona, ‘Values in EU Foreign Policy’, in M. Evans & P. Koutrakos (eds), Beyond the Established Legal Order","PeriodicalId":170039,"journal":{"name":"The Law Behind Rule of Law Transfers","volume":"76 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127507920","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0