Domestic Decisions Research Articles

How Comity Makes Transnationalism Work

Comity is a venerable principle in the name of which national courts fine-tune the reach of national substantive law and jurisdictional rules, refrain from questioning the lawfulness of another sovereign state’s acts, and restrict themselves from issuing such judgments and orders that would amount to an unjustifiable interference. The doctrine was developed in 17th Century Netherlands with the goal of making sense of the changed normative landscape, after the consecration of the principles of territorial sovereignty and freedom from interference introduced a substantial hurdle to flourishing cross-border business transactions. In spite of a lack of scholarly attention, the doctrine of comity never disappeared from the language of the courts: in fact, it was rediscovered as a tool to help govern those situations in which cross-border elements were in need of careful treatment — to play with Philip Jessup’s words, those “actions or events that transcend national frontiers”. In this paper, we consider the meaning of the notion of comity and its value as an inherently transnational principle that touches on a number of important areas. Following Jessup’s own partition of his seminal work Transnational Law, we will consider “the universality of human problems”, the power to deal with them, and the choice of law to govern them, and illustrate how “the demands of comity” contribute to providing answers to issues such as the harmonisation of transnational normative frameworks, the allocation of regulatory authority, and the law — and administration — of jurisdiction. In doing so, we will address both domestic and international regulation and decision making. We will then reverse our perspective to show that comity is a foundational principle for transnational law by explaining that the latter cannot be detached from an understanding of the former: four centuries on, “the lesson of comity” does not cease to be decisive.

Deprivation of Liberty and Human Dignity in the Case-Law of the European Court of Human Rights

In its landmark 2013 judgment of Vinter and Others v. the United Kingdom, the European Court of Human Rights held that a life sentence which is not de jure and de facto reducible amounts to a breach of the prohibition of inhuman and degrading punishment, as enshrined in Article 3 of the European Convention on Human Rights. The author, a judge of the Strasbourg Court, analyses the Vinter judgment both as it stands alone as well as how it fits into and, now, influences the Court’s case-law on Article 3 and 5 of the Convention, before reviewing the procedural requirements laid down by the Court for a ‘Vinter review’ of life sentences. In doing so, the author examines the underlying tensions between the conception of penal policy as falling within the exclusive domain of domestic decision-making and the individualistic and dignitarian notion of human rights in which the Convention system is firmly grounded. The article is based on the 2016 Bergen Lecture on Criminal Law and Criminal Justice which the author gave on 26 October 2016 at the Faculty of Law, University of Bergen.

Prosthetic Colonialism: Indian Removal, European Imperialism, and International Trade in Poe’s “The Man That Was Used Up”

ABSTRACT: Critics have often read Poe’s “The Man That Was Used Up” as a response to domestic pressures within the United States that arose due to its rapid industrial and geographic growth. Such scholarship tends to emphasize the new nation’s independence from European powers, rather than attend to the ways global markets, international conflict, and the cultural memory of life “under” European colonialism continued to influence domestic decisions and politics in the opening decades of the nineteenth century. In contrast, this article argues that for Poe’s original readers, General Smith’s prosthetics did not signify an artificial attempt to form a cohesive, new national body but instead symbolically indicated the encroachment of European colonial practices into the new and allegedly democratic nation. Contextualizing the story via the writings of Indian removal opponents, medical journals, and advertisements relating to early medical prostheses, as well as recent criticism on prosthetics, Chacón demonstrates that in “The Man That Was Used Up,” it is not anxiety over the new but fear of the old that Poe portrays in his first “specifically American” tale.

Politicising financial foreign policy: an analysis of Brazilian foreign policy formulation for the financial sector (2003- 2015)

At the start of the 21st century, there was a reconfiguration of the Brazilian domestic political dynamic, as its actors gradually became more interested in the formulation of foreign policy and tried to safeguard their interests. When analysing the country's foreign policy for the financial sector, it becomes quite clear that to consider foreign policy simply as one type of public policy is insufficient to assess its decision-making process. This paper seeks to contribute to the debate by arguing that the analysis of foreign policy should be carried out by taking into consideration specific issue-areas. This paper explores the movement to rearrange domestic decision power, seeking to gain leverage in international negotiations.

Subsidiarity Post-Brighton: Procedural Rationality as Answer?

AbstractDuring the Interlaeken and Brighton conferences in 2010 and 2012 on the reform of the European Court of Human Rights (ECtHR or the Court) the High Contracting Parties demanded an increased focus of the Court on subsidiarity when considering cases. The ECtHR had been criticized by several states, in particular the United Kingdom (UK), for second-guessing domestic decisions of the democratically elected legislator. A procedural rationality approach could answer this critique. This approach implies that the Court takes the quality of the decision-making procedure as a decisive factor for its assessment of the proportionality of a domestic measure. In several recent high-profile cases the Court has adopted such approach providing the defending state with a wide margin of appreciation due to the high quality of the decision-making procedure. This contribution discusses to what extent the Court has applied this approach pre- and post-Brighton and the potential pitfalls. The contribution concludes that this approach could provide a vital leeway between the Court's supervisory and subsidiary role in the protection of human rights if applied coherently and consistently. However, it is no magic solution to silence the criticism against the Court as the opponents of the Court do not just reject its approach to proportionality review, but judicial review of legislative decisions altogether.

Restructuring the State through Economic and Trade Agreements: The Case of Investment Disputes Resolution

This essay will examine the emergence of transnational governance via supranational economic agreements which promote global imposition of liberalizing policies in the interests of transnational investors. The stalled multilateral World Trade Organization (WTO) process has given way to a plethora of regional and bilateral economic agreements covering a range of new issues—investment, intellectual property, services, and regulations—which trench ever more deeply on domestic decision-making. Informed by Phillip Cerny’s conception of “competition states”, Colin Crouch’s (2000) lament about “post-democracy”, Carroll and Sapinski’s analysis of “global corporate elites”, and David Held’s depiction of “global governance complexes”, the essay will examine the role of transnational corporate and institutional elites in advancing economic agreements which narrow the scope for democratic governance. These authors depict the combination of constraint and empowerment of states induced by these transnational agreements which force most liberal democracies to cut or tweak programs and regulations in economic and social fields to protect investor rights, while boosting restraints on citizens in areas like intellectual property—what Cerny (1997) calls the “paradox” of the competition state. Given the number and complexity of these transnational governance arrangements, this essay will focus on the transnational constraints of investor state arbitration and disputes settlement systems. This will be illustrated by examining the growth of investor disputes settlement claims in bilateral treaties and major European and North American economic agreements and the rise of arbitration cases which impose costs on states for violations of investor rights. The essay considers the implications of these new forms of transnational governance for democratic governments’ responsive to popular demands. It concludes by suggesting the need for revisions to theories of the democratic state, which may be morphing into pluralistic plutocracy.

National Legislatures: the Foundations of Comparative International Law

One critique of some common-law comparative legal academies is their intensively “court-centric” focus, which, some believe, “marginalize[s]” the role of the legislative branch. The same may be said of the extant comparative international law literature: most of it concerns the interpretive approaches of national courts. In fact, one of the field’s seminal pieces defines comparative international law as the process of “seeking to identify and interpret international law by engaging in comparative analyses of various domestic court decisions.” Not surprisingly, then, nearly all of this volume’s contributions deal mostly or exclusively with courts and judicial decisions. While we agree with this volume’s other contributors that courts can play a significant part in diversifying how international law works across different systems, we contend that the foundation of the comparative international law project lies elsewhere. We argue that among the most important and underappreciated interpretative acts — and therefore, those currently most needing study — are the international law interpretations of national legislatures.

El Frente Polisario, las normas del derecho internacional y el derecho de la Unión Europea. Apuntes en torno a la sentencia del Tribunal General, de 10 de diciembre de 2015, T-512/12, Frente Polisario/Consejo

The judgment of the General Court of 10 December 2015 is extraordinary for several reasons. First, the judgment raises important legal questions in the field of the relationship between European Union law and international law. Secondly, the General Court, invoking reasons of doubtful legality, admits the capacity of the Polisario Front to institute proceedings as a legal person directly and individually concerned, under article 263 TFEU, by the Decision of 8 March 2012 on the conclusion of an agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco. Thirdly, for the first time ever an individual applicant has been able to bring an action for annulment and has obtained the annulment of a decision of conclusion of an international agreement between the European Union and a third State. Fourthly, for the first time the European Union judge has laid down a duty, for the Council of the European Union, to examine carefully and impartially, prior to the conclusion of an international agreement, all the relevant elements to ensure that the potential implementation of such agreement does not lead to, or indirectly encourages, the violation of the fundamental rights of the people of a controversial territory, or benefits therefrom, and in particular the rights derived from the principle of permanent sovereignty over natural resources as a corollary of the principle of self-determination. Fifthly, the General Court omits in its judgment to consider the legal consequences, under international law, of the annulment of a domestic decision that expresses the consent of the European Union to be bound by an international treaty. Sixthly, the judgment of the General Court does not set any limitation ratione temporis on the effects of the judgment and, therefore, fails to ensure the necessary legal certainty, in particular for the economic operators, as regards the applicability of the international commitments entered into by the European Union within the Union’s legal order.

Do Banks Shift Asset Portfolios in Compliance to Global Capital Adequacy Regulations?: Evidence from India

In this paper we investigated the impact of global capital adequacy norms on the asset portfolios of Indian banks. This research question is important in the Indian context as the Indian banks have adopted global regulatory norms in integration with the already existing domestic policy decisions. We have proposed two alternative modelling frameworks to separate out the impact of Basel capital adequacy regulation on the portfolios of Indian banks. Empirical findings support that implementation of global regulatory norms has brought changes in the portfolio of Indian banks; however, the impact on portfolio change is found to be different for different bank groups. Moreover, response of Indian banks was not same throughout the study period. Response of Indian banks was more pronounced in Basel-I regulation period than Basel-II. Further analysis shows that the credit quality did not push for the shift in asset portfolio while analysing all the bank groups together. However, segregated analysis reveals that asset quality did impact the foreign and old private banks’ portfolios.

The OecddS Conquest of the United States: Understanding the Costs and Consequences of the Beps Project and Tax Harmonization

The Base Erosion and Profit Shifting (BEPS) Project of the Organisation for Economic Co-operation and Development (OECD) attempts to fundamentally change the international tax system by protecting high-tax states at the expense of economically friendly low-tax states. The OECD is concerned that globalization and increasingly easy movement of capital and labor across borders will undermine the tax bases of its high-tax members. The proposed solution, however, favors consolidated, uniform, and transparent tax rules at the cost of compliance, diminished taxpayer rights, and diminished institutional diversity. Tax policy should remain an area of domestic decision-making, allowing each country to choose a tax system that best fits its unique needs within the global landscape. The international community should be cautious of OECD attempts to eliminate tax competition by consolidating international tax rules. Instead, the United States should lead other countries by reforming its domestic tax code and rejecting many of the BEPS Project’s new rules.

How socially sustainable are the rice farms in mountains? Evidence from Senapati district of Manipur

Sustainable agriculture is regarded as the successful management of resources for agriculture to satisfy the changing human needs while maintaining or enhancing the quality of environment and conserving natural resources. The present study was conducted to examine the social sustainability of rice farming at farm level. A random sample of 80 rice farmers of Senapati (hill) district of Manipur were surveyed and social sustainability index were constructed following the Human Development Index (HDI). Most of the farmers (26%) were educated up to primary level and operational land holding was small (1.08 ha) in the study area. The farms under moderately sustainable category may be improved by providing training to the farmers pertaining to rice cultivation and affiliating them to Self-help Groups (SHGs), co-operative societies. Joint decisions on domestic decisions are common and the farmers had 12 years of experience in rice farming but none of the sample farmers got training in rice cultivation. About 53.33 per cent of the farms were in sustainable category, followed by moderately sustainable category (46.67%) in the study area. The study recommends that efforts for improving social sustainability and training pertaining rice cultivation should be initiated for the farmers and application of organic nutrients, diversified cropping system and conservative tillage practices should be promoted in the study area to augment social sustainability.

New developments regarding the admissibility criteria of individual applications to the European Court of Human Rights

This paper deals with certain admissibility criteria of an individual application before the European Court of Human Rights. This is one of the most important issues in the Court's practice and it represents a necessary condition for deciding on the merits of submitted applications. The period of six months for submitting the application is introduced in order to preserve legal certainty but also it serves for the interests of states because it prevents that final domestic decisions are questioned indefinitely. The Court can declare each application inadmissible if it considers that the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols requires an examination of the application. Also, the application cannot be rejected on this ground if the case has not been duly considered by a domestic tribunal. Protocol No. 15 to the Convention, which has not yet entered into force, envisages the deletion of this last possibility and also reducing the period for submitting the application from six to four months.

S01.4 Modelling the cost-effectiveness of hiv prevention interventions

Ambitious targets have been set for HIV prevention. We will begin by examining assumptions for HIV prevention scale-up in the light of the concept of the ‘prevention cascade’ using available data. Then, we will show that a key part of optimising prevention impact will be in allocating available funding according to four main factors -- intervention, population, geography and time. The impact of flexibility or constraint on each of these will be illustrated, providing recommendations for how international and domestic decisions can be taken to maximise epidemic impact. Finally, we will examine methods to evaluate the evidence of new prevention technologies to determine the scale of investment they might optimally attract. We will show that this requires a holistic view of the range of tools available in combination prevention and across the full prevention cascade, and that without that focus, sub-optimal decisions may be taken.

Identity Discourses and the Sino-Soviet Split

Identity Discourses and the Sino-Soviet Split Daniel Leese Yee-Wah Foo, Chiang Kaishek’s Last Ambassador to Moscow: The Wartime Diaries of Fu Bingchang. 256 pp. New York: Palgrave Macmillan, 2011. ISBN-13 978-0230584778. $115.00. Ted Hopf, Reconstructing the Cold War: The Early Years, 1945–1958. 320 pp. New York: Oxford University Press, 2012. ISBN-13 978-0199379767. $27.95. Austin Jersild, The Sino-Soviet Alliance: An International History. 352 pp., illus. Chapel Hill: University of North Carolina Press, 2014. ISBN-13 978-1469611594. $36.95. The past decade has witnessed a flood of new publications on the turbulent relationship between the People’s Republic of China (PRC) and the Soviet Union during the Cold War. This new wave of scholarship has increasingly been based on Chinese archival holdings as well.1 Although the Chinese Communist Party’s (CCP) Central Archives near Beijing have remained off limits to both foreign and independent domestic researchers, at least the first half of the Hu–Wen administration (2003–12) witnessed unprecedented access to archives at the provincial, municipal, and county levels. The comparatively open archives during these years included the Archive of the Chinese Foreign Ministry, which allowed for greater access to its records, especially from the [End Page 988] 1950s. The insights gained from these holdings have considerably enriched our knowledge about Chinese foreign policy with regard to both high-level domestic decision making and international relations.2 Restrictions have tightened in recent years, however, and many previously accessible documents have been reclassified or, under the pretext of digitization, withdrawn from the catalogues. The three books under review here all in one way or another have profited from the short-term liberalization of Chinese archival practices. Two of them heavily rely on Chinese primary sources, and this review is therefore written from the perspective of a historian of China, not the Soviet Union. The books share a focus on the early or even pre-Cold War period of Chinese–Soviet relations between the 1940s and the mid-1960s. In Chiang Kaishek’s Last Ambassador to Moscow, Yee-Wah Foo analyzes Guomindang diplomacy during World War II. More specifically, she traces the life and times of her grandfather Fu Bingchang. The special relationship between author and research subject is not adequately discussed, and the book over long stretches reads like an attempt to cast Fu’s historical role in a brighter light. The volume is divided into six parts, starts with a family history prior to 1943, and continues with a cultural history of embassy life and organization in the 1940s. On Fu’s farewell visit prior to embarking for Moscow, Chiang Kai-shek personally stated Fu Bingchang’s mission to project an image of China as a great power; to minimize Soviet interference, especially in Xinjiang and Manchuria; and to make the Soviet Union join the war against Japan. Parts 3–5 discuss the difficulties of achieving these tasks by looking at Fu’s role in the October 1943 Moscow declaration, which granted China great-power status, the removal of Soviet influence in Xinjiang, and the negotiations of the Far Eastern Agreement at Yalta in 1945. All these questions have been extensively dealt with in previous diplomatic histories—for example, by Garver and Heinzig—and despite the author’s effort at ascribing a greater role to Fu Bingchang, the utter powerlessness of the Chinese delegate and his country’s complete dependence on U.S. backing cannot be dispelled.3 There are a few interesting new details on the situation in Xinjiang and on the second round of discussions regarding the 1945 Sino-Soviet treaty, which merit the specialist’s interest. [End Page 989] The book mostly offers details on the personal relations between Fu and other major ambassadors, as well as relations with the Soviet hosts, which were characterized by mistrust, spying activities among lower-level staff (not to mention infiltration by Chinese Communist Party [CCP] spies, most notably Fu’s mistress and press attaché Hu Jibang). A unique source explored in the book is the war period diary of Fu Bingchang, which remains in the family’s possession and consists of about 220 handwritten pages. It is difficult...

Enhancing Constitutional Justice by Using External References: The European Court of Human Rights’ Reasoning on the Protection against Expulsion

AbstractThis article argues that the European Court of Human Rights (ECtHR) uses external references as a tool to enhance ‘constitutional justice’. This technique is illustrated by the Court's contribution to an important shift in migration law beginning in the late 1980s and resulting in an enhanced scheme for protection against expulsion in Europe. This shift reflects the changing role of the ECtHR from a court primarily concerned with providing ‘individual justice’ to a court aiming at enabling ‘constitutional justice’. The aim of the article is to contextualize the aforementioned shift with a historical view and to understand it in methodological terms. It argues that the Court supports its dynamic interpretation of the right to privacy in Article 8 of the European Convention of Human Rights in crucial judgments by reference to often non-binding instruments issued by the Council of Europe and to other human rights treaties. In this regard, the case of protection against expulsion illustrates a particular feature of the Court's turn to ‘constitutional justice’, namely the increased application of the principle of systemic integration. This allowed the Court to develop a meaningful and comprehensive protection scheme in the first place. However, the article reveals that once the substantial standard developed by the ECtHR has been formally implemented in domestic law, domestic decisions are reviewed with significantly less scrutiny. This limitation may again be explained by the ‘constitutional turn’ which results in a pragmatic tendency to proceduralization in the jurisprudence of the ECtHR.

Chinese Women’s Family Status: Analysis of Chinese Decennial Surveys, 1990-2010

The experiences and status of Chinese women have significantly changed over the last two to three decades, along with China’s modernization. In this article we investigate the domestic division of labor between the two sexes at the present-day in the context of gender equality. Based on data from three Surveys on Chinese Women’s Social Status taken in 1990, 2000 and 2010, the article focuses on important dimensions of women’s family status, such as general changes in domestic decision-making and the time women spend in domestic labor, including rural-urban differences. The article points to “equal rights for both husband and wife” (Fu Qi Ping Quan, 夫妻平权) as being the major pattern in domestic decision-making, yet men have still more rights than women. Also, women are still the main force in domestic labor, although the difference between the times spent in domestic labor by women and men respectively has gradually narrowed. There also seems to be a greater correlation between education and women’s status in rural areas than in urban areas.

Comparing the domestic and the EU lobbying context: perceived agenda-setting influence in the multi-level system of the European Union

ABSTRACTThe contribution analyses whether the factors affecting perceived interest group influence on political agendas differ depending on whether groups lobby in their own domestic context or seek influence at the European Union (EU) level. Findings from a multinomial logistic regression analysis based on survey responses from 1,723 domestic interest groups in the United Kingdom, Denmark and the Netherlands do not indicate that differences in the national setting are important for perceived group influence at the two levels. However, they underline how the decision-making level acts as a contextual factor, which conditions the explanatory potential of other crucial variables: Embeddedness into domestic decision-making is primarily an asset for securing perceived influence on the national rather than the EU agenda, whereas group resources matter more at the EU than the national level. In this way our multi-level design underlines how the state-of-play for securing perceived influence varies across lobbying contexts.

The Human Rights Act and the doctrine of precedent

Conflicts between domestic precedents and subsequent decisions of the European Court of Human Rights have resulted in the lower courts following prior domestic decisions even when convinced that they will be overruled on appeal. The standard interpretation of the decision of the House of Lords in Kay v Lambeth holds the lower courts to domestic precedents that are manifestly inconsistent with the subsequent Strasbourg jurisprudence and admits only the most limited exception. This paper advances an alternative approach to the relationship between the domestic courts' obligations under the Human Rights Act 1998 and the doctrine of precedent by analysis of the nature of the doctrine of precedent and the reasons offered by Lord Bingham in his leading judgment in Kay. This analysis is then extended and applied to two recent cases in which the lower courts have considered themselves bound by a decision of the UK's highest appeal court that fails to give due effect to the applicants' Convention rights.

The Semantics of Openness. Why References to Foreign Judicial Decisions Do Not Infringe the Sovereignty of National Legal Systems

Judges in different jurisdictions tend to quote foreign verdicts while deciding domestic cases. This practice flies in the face of the well-entrenched theory according to which law is a production of a domestic, sovereign lawmaker and foreign judicial decisions are irrelevant to its interpretation. In this paper I answer the question why the practice does not follow the theory and argue that it is not the former that should be changed but the latter. I show that the notion of a sovereign lawmaker is based on an author-centred theory of language, semantic internalism. This theory states that the sole source of meaning is the intention of a unique speaker. An alternative theory of language, semantic externalism, locates the meaning in the relationship between language and external reality, which is broadly similar in all languages and jurisdictions. Semantic externalism better explains why judicial borrowings are ubiquitous amongst different jurisdictions and thereby provides a better theoretical underpinning for this behaviour.

Universality or Diversity of Human Rights?: Strasbourg in the Age of Subsidiarity

Over the past few years, the European Court of Human Rights has been criticised in several extrajudicial speeches in the United Kingdom. In this article the author, a judge of the Strasbourg Court, analyses some of this criticism, focussing especially on Lord Hoffmann’s views in his 2009 farewell lecture, The Universality of Human Rights, as well as discussing some more recent speeches by senior British judges. The author argues that, contrary to some of this criticism, the Strasbourg Court has gradually developed its approach in relation to the principle of subsidiarity and the margin of appreciation by adopting a qualitative, democracy-enhancing approach in the assessment of domestic decision-making in the field of human rights. In this way, the Court has demonstrated its willingness to defer to the reasoned and thoughtful assessment by national authorities of their Convention obligations. In this connection, the article then discusses briefly the case law of the Strasbourg Court on the exhaustion of domestic remedies in relation to declarations of incompatibility under the Human Rights Act 1998 (UK).