Effective Enforcement Mechanisms Research Articles

Self-protection in Greece: sticking with groups, communicating, protesting, and fighting

ABSTRACTDespite the international community’s responsibility to protect (R2P) mandate, we are years away from effective international enforcement mechanisms. It is therefore important that we better understand and seek to support local capacities for self-protection. Migrants and refugees in Greece have shown us four central ways they cope with insecure environments. They stick together in groups, communicate warnings of danger, protest when conditions are threatening, and fight when all else fails. This practical note offers three recommendations on how to support the capacity of displaced people to protect themselves.

Global corporations, bribery and corrupt practices: Anti-bribery laws and the limits of state action

The regulation and control of bribery and corrupt practices by globally active corporations has become a matter of increasing concern in recent years. For many years the US Foreign Corrupt Practices Act (1977) has stood as a model for other countries. Other countries have been slow to introduce improved anti-bribery laws and have often only been prompted to review their laws and practices in this area as a result of major corporate scandals. The passage of the UK Bribery Act (2010) has now provided a more broad-ranging model that has built upon prior experiences, such as in the USA, as well as upon advances in regulatory theory. Multilateral efforts, such as by the G20, have also become more important in encouraging countries to enhance global anti-bribery mechanisms. This paper critically examines this national and multilateral regulatory experience and discusses difficulties that individual states, such as Australia, have had in responding to the need for more effective anti-bribery laws and enforcement mechanisms.

The deterrence theory: A case for enhanced enforcement of directors’ duties

This article is concerned with providing a justification for effective enforcement of directors’ duties. It aims to consider whether enforcement of directors’ duties is necessary. It argues that enforcement of directors’ duties is crucial to effective corporate governance. Drawing on the deterrence theory, it argues that there is a clear link between increased enforcement and increased compliance. Enhanced enforcement of directors’ duties is essential for securing compliance; countries, therefore, ought to put in significant effort to develop effective enforcement mechanisms.

The Protection of Socio-Economic Rights through the Canon of Civil and Political Rights: A Comparative Perspective

Socio-economic rights have been largely neglected in international human rights law. Misconceptions about the nature of these rights have resulted in their marginalisation and their relegation to second-class rights. Effective enforcement mechanisms in respect of socio-economic rights are still lacking in international human rights law. In the context of the ICESCR, an individual complaint mechanism for socio-economic rights was only introduced in 2009. In contrast, civil and political rights have long been recognised in international human rights law and have always been subjected to effective enforcement mechanisms, in particular, individual complaint mechanisms. The distinction between the two sets of rights - civil and political rights on the one hand, and socio-economic rights on the other hand - has begun to fade. The international human rights community has now recognised the interdependence, indivisibility and interrelatedness of all human rights. Supervisory organs tasked with the interpretation and enforcement of civil and political rights treaties, most notably the ECtHR and the HRC, have played a crucial role in this process. They have recognised in their jurisprudence the interrelatedness of both sets of rights and have allowed socio-economic interests to be enforced indirectly through the canon of traditional, civil and political rights. This article specifically considers the ECtHR’s and the HRC’s jurisprudence on the right to life which demonstrates the extent to which these organs have protected social and economic interests. By using a variety of techniques, which are examined in this article, both organs have permeated the right to life with significant socio-economic dimensions. The analysis of the jurisprudence of the ECtHR shows that the right to life applies to cases concerning health interests in the broad sense as well as environmental interests. For its part, the HRC has not only recognised health and environmental interests as coming within Article 6 of the ICCPR, but also subsistence interests. The article concludes that, despite the conceptual developments, it is difficult for victims of such violations to succeed before the ECtHR and the HRC. The high standards imposed make it difficult for victims to bring successful claims based on the right to life.

Adjudication and Enforcement of Socio-economic Rights under the Indian Constitution: A Critical Study

The literature on constitutional socio-economic Rights world over engages with the long-standing debate over democratic legitimacy and the courts' capacity, to enforce socio-economic rights and seeks to move beyond it by addressing the more complex challenges of identifying principled and effective court enforcement mechanisms. The Constitution of India expressly recognises the divide between Fundamental Rights and Directive Principles of State Policy (DPSP) in Part III and Part IV of the Constitution respectively by making Fundamental Rights justiciable in a court of law and DPSPs non-justiciable. At the same time though, this does not amount to relegation of DPSP to Fundamental Rights. This divide has more to do with the traditional conception of the constitutional role of the three organs of State; viz. Legislature, Executive and the Judiciary. Adjudication has traditionally been associated with an institution which is mainly concerned with corrective justice and hence the functional character of judicial role presupposes violation of legal rights. Economic and social rights or socio-economic rights include the right to access to food, water, housing, healthcare, education and social security and what might approximate the basic goods and services necessary to secure a dignified life. In the modern times, the civilized States have moved long back to being the welfare States rather than adhering to the notion of a laissez faire State, yet it is still more of a political assertion not accruing enforceable socio-economic rights to individuals against the State. Constitutionalism is about putting the government under check and about devising means to ensure that the governmental power is exercised with civility and not in an arbitrary manner. So, a laissez-faire principle of working for a State would be consistent with the ideals of constitutionalism. However, abdication of governance imperatives by way of omission of fundamental governance duties by the State cannot be allowed to go unchallenged on the basis of it being not a case of State acting arbitrarily and therefore perhaps there is a strong case for broadening our understanding of constitutionalism to include within its fold arbitrary and unexplained omissions in relation to fundamental governance imperatives as well. It is also significant that fundamental governance imperatives do not flow from directive principles only; even fundamental rights impose positive obligations and therefore positive obligations of State even by the narrative of fundamental rights being only obligatory cannot be placed outside the confines of constitutionalism.

China and the South China Sea Arbitration: Geopolitics Versus International Law

ABSTRACTThis article analyzes China’s geopolitical maneuvers in the wake of the International Arbitral Court ruling over the South China Sea territorial disputes brought up by the Philippines. It finds that while the Philippines won the case in the sphere of international law, China won the geopolitical battle not only because the court does not have effective enforcement mechanisms but also because the international community lacked the will to induce significant compliance given China’s forceful rejection as a great power.

The Market Value of Who We Are: The Flow of Personal Data and Its Regulation in China

This article focuses on market-driven collection of personal data and its regulation in China. It argues that there is a growing demand for personal data from China’s advertising, marketing, and credit reporting businesses. Meanwhile, the rapid development of the Internet, notably social media and e-commerce, has generated very large pools of personal data on digital platforms. These two factors contribute to the fast growth of both legitimate and illegitimate collection and exploitation of personal information. Chinese laws and regulations lag behind the market and are not ready to regulate personal data as a key economic resource. They scatter in a wide array of economic and social sectors and lack a coherent structure and effective enforcement mechanism. Unspecified overarching rationale, ambivalent market regulation, inadequate enforcement, as well as safety risks of governmental databases are problems that hinder the protection of personal data in China. The role and implications of the new Internet Security Law, entering into force in June 2017, remain to be seen.

Corporate governance and the level of Bahraini corporate compliance with IFRS disclosure

PurposeThe purpose of this paper is to examine the relation between corporate governance (CG) and International Financial Reporting Standards (IFRS) disclosure one year before the issuance of the first Corporate Governance Code (CGC) in Bahrain.Design/methodology/approachThe CG is measured by board composition, audit committee characteristics, and ownership structure. Ordinary least-squares regressions are used to examine the relationships between the level of Bahraini corporate compliance with mandatory IFRS disclosure requirements as dependent variable and eight CG mechanisms as independent variables and five other firm-specific attributes, as control variables.FindingsThe results show that three of the CG mechanisms (i.e. board independence, audit committee independence, and Chief Executive Officer duality) are associated with the level of IFRS disclosure. This suggests that CG mechanisms are effective in the financial reporting practices. However, the results show that the other five CG mechanisms (i.e. board size, audit committee size, blockholder ownership, managerial ownership, and government ownership) are not associated with the level of IFRS disclosure. This result may prove the importance of the CGC as an effective enforcement mechanism to enforce Bahraini companies to fully comply with IFRS disclosure.Research limitations/implicationsAlthough the study can contribute to the understanding of the relationship between CG and IFRS in Bahrain, it may not be able to be generalized to other countries. Such relationships could be different from country to country due to business and legal environments. Therefore, there is a need to investigate these relationships among different countries. This study examines the relation between CG and the level of compliance with IFRS disclosure one year before the issuance of the first CGC in Bahrain. Future research might attempt to examine the relation one year after the issuance of the first CGC in Bahrain to confirm the importance of the CGCs as an effective enforcement mechanism.Practical implicationsThe findings of this study are of great concern to all users of annual reports and of particular interest to accounting regulators to improve the level of supervision and the standard of reporting in Bahrain. Also, it is of great concern to professional accounting bodies, policy makers, and governments in emerging markets in countries that share similar economic, political, and cultural environments.Originality/valueThis paper’s contribution to the literature is twofold: it examines the relation between three groups of CG mechanisms (i.e. board characteristics, audit committee characteristics and ownership structure) and the level of corporate compliance with IFRS disclosure; it examines the relation one year before implementing the first CGC in Bahrain and provides new evidence on the importance and effectiveness of the CGCs.

Sovereignty is Dead! Long Live Sovereignty! From Nation-Based to User Central Jurisdiction in a Globalized Smart Society

They used to be so close, the nation state and the law. The nation was primarily defined by borders, the state reigned as the sovereign within and could apply its laws. This simple and effective state of affairs changed due to various developments. One is public international law: it is generally accepted that trade, human rights, conflicts, environmental issues, etc. can be managed more effectively on an international scale. The effect of international treaties is that a state gives up some of its power, although due to the largely lacking effective enforcement mechanisms in international law, sovereignty essentially remains within national borders. This is different for the European Union which as a supranational body has more control over countries than any ordinary treaty organization, including the United Nations, ever had.On a more practical level globalization challenged the nation state as the central concept of the legal system. Citizens — and businesses in particular — are powerful players in the transnational scene. The internet plays a special role in all this. First, none of the existing normative mechanisms seems fully equipped to deal with internet activities. Second, the introduction of the internet as a world-wide communication infrastructure, accessible from anywhere, by anyone accelerated the process of globalization. So the internet increased the process of globalization, and added to the complexity of the legal system. Recently the cross-border use of smart devices, in particular smart phones, contribute both to globalization and normative complexity. The question addressed in this short paper is what is left for the nation state and sovereignty in the context of cross-border smart phone use. World-wide use, via a global infrastructure conflicts with local, national law, and that nation-based jurisdiction is ill-equipped to deal with an object which moves through borders of differing, national law.

Returning to the Tribal Environmental "Laboratory": An Examination of Environmental Enforcement Techniques in Indian Country

Governments, including tribes, need to protect one of humankind’s most valuable resources: the environment. In addition to environmental regulations, effective enforcement mechanisms are key to successful efforts to protect the environment. While much has been written about the environmental enforcement mechanisms of states and the federal government, little scholarly attention has been paid to how tribal governments are working to protect their environments. Given that there are 567 federally recognized tribes and approximately 56.2 million acres held in trust for tribes in the United States, such oversight is significant. This Article fills a scholarly void with a description of environmental enforcement techniques being utilized by tribes. It builds on past articles examining tribal environmental law and also the idea of tribes, who are uniquely situated to engage in meaningful experimentation, as valuable governmental laboratories of innovation. Such consideration is constructive given that the federal government’s innovation has stagnated, and other levels of government may learn valuable lessons by reviewing the work of tribes. Further, effective enforcement of tribal environmental law may be particularly important to tribes because of the strong connection to specific areas of land that exists for many tribes and individual tribal members. To accomplish this examination of tribal environmental enforcement mechanisms, this Article provides a descriptive survey on the environmental enforcement provisions found in the tribal code provisions of tribes located within the boundaries of four states. This Article reviews the survey results from respondents for nine tribes to determine how effective the tribes’ environmental enforcement mechanisms have been. This Article concludes that tribes are actively incorporating environmental enforcement mechanisms into their tribal codes, but that they are modifying and adapting such mechanisms to best accomplish enforcement within Indian country.

Second-hand smoke exposure among workers of restaurants, bars, and nightclubs in Lagos State

Background: The Lagos State Regulation of Smoking Law was passed in February 2014 and stipulates the total restriction of tobacco smoking in listed public places. Workers in hospitality venues are at a high risk of exposure to second-hand smoke (SHS). Therefore, their awareness of the health risks, attitudes toward SHS and their reported levels of exposure may play a crucial role in developing an effective monitoring, implementation, and enforcement mechanism. Methods: We conducted a cross-sectional, descriptive study among workers in restaurants, bars, and nightclubs registered with the Lagos State Ministry of Tourism in the second quarter of the year 2014. We used a multistage sampling technique to select one respondent each from the 300 centers randomly selected to participate in the survey. Data were collected using a modified version of the World Health Organization Global tobacco surveillance system tools. Univariate and bivariate analysis were carried out. Exposure to SHS in the workplace and in other public places was treated as the outcome variable in the bivariate analysis. Results: Majority (75.3%) of the respondents were aged between 21 and 40 years with a mean age of 27.7 + 8.6 years. Many (66%) were waiters/waitresses and spent more than 8 h a day. Most (60.6%) of the venues were indoor only establishments, and 26.8% had no form of smoking restrictions. Majority of the respondents were exposed to SHS at work, and this was higher in bars and nightclubs. A bivariate analysis of results showed that workers were exposed to SHS at work irrespective of workplace smoking restrictions or respondents smoking status. Conclusion: Our study demonstrates that second-hand smoke exposure is very high (65% in smokers; 65.6% in nonsmokers) among workers in restaurants, bars, and nightclubs in Lagos State. We are therefore of the opinion that strict enforcement of law would ensure the protection of these workers.

Global Migration Law and Regional Free Movement: Compliance and Adjudication – The Case of South America

The field of global migration law looks beyond international law to incorporate all levels of the law, including the regional. This essay explores the regional regulation of mobility, which has indeed become a central subject of discussion and academic analysis. The expansion of human rights law coupled with the explosion of regional processes of integration are the two most important phenomena that have limited the state's capacity to restrict the entry of foreigners and their rights. It should come as no surprise that regional agreements facilitating mobility have proliferated and now involve around 120 countries, either at a bilateral or multilateral level. For one thing, most global migration is regional, whether in Europe, Africa, Asia, or Southern and Central America. In addition, regional instruments can be agreed on more rapidly and, in principle, introduce higher standards of protection and rights due to the more limited number of actors involved in the negotiations. There is, of course, huge variation across regions as to the degree of development of the various agreements, the categories of individuals entitled to mobility and equal treatment and their effective application and enforcement mechanism devices.

The Role of the International Organization of Securities Commissions in Cross-Border Enforcement of Securities Laws

The International Organization of Securities Commissions (IOSCO) is a recognized international standard setter for securities markets. Development and implementation of an effective global regulatory and enforcement mechanism is one of the organization's major purposes. In 2002, IOSCO introduced the Multilateral Memorandum of Understanding Concerning Consultation and the Exchange of Information. The Memorandum promotes cross-border enforcement of securities laws through strengthening information exchange among securities regulators. This paper examines the reasons that led securities regulators to seek development and implementation of a mechanism for cross-border exchange of information and how IOSCO addressed the main issues of cross-border exchange of information in the Memorandum. In addition, this paper examines the problems of development and implementation of mutual assistance in freezing and repatriation of assets derived from violations of securities laws.

The Impact of Voluntary and Mandatory IAS/IFRS Adoption: A Review

Several studies examined the capital market effects and the impact on accounting quality after the mandatory IAS/IFRS adoption. Two different approaches have been widely adopted: the pro-standard and the pro-incentive. According to the former, the IAS/IFRS standards have a positive impact as a result of their higher quality, compared to local GAAP. On the other hand, the pro-incentive approach emphasizes the importance of incentives, especially ones related to the institutional settings, and predicts greater effects in countries characterized by strong legal systems and effective enforcement mechanisms. The most recent empirical evidence seems to support the pro-incentive approach. This literature review underlines the evolution of this research stream, stressing the different used approaches, in order to explain their mixed results, and trying to explain the implied reasons why recent papers move to a different approach which seems to provide a finer and more dynamic interpretation of the pro-incentive hypothesis, weakening the presumed influence of the preexisting legal systems and underlining the role played by firms’ incentives <em>per se</em> and by changes in enforcement mechanisms.

The military and human rights violations in post-1999 Nigeria: Assessing the problems and prospects of effective internal enforcement in an era of insecurity

ABSTRACTNigeria is currently faced with a series of internal security challenges that threaten the very existence of the country. In the areas where conflict has erupted, the military has been consistently accused of violating human rights during its operations. The aim of this article is to explore the claims of human rights abuses levelled against the military and assess the prospect of an effective internal enforcement mechanism. The study that forms the basis of this article involved interviews with 18 high-ranking serving and retired military officers. The empirical results suggest that there are four main areas that need to be strengthened to limit the alleged cases of human rights violations.

The Right for Regional Integration Organisations to Protect Democracy: Legitimacy at the Regional Level?

Abstract Recently there have been several examples of different regional integration systems intervening to prevent unconstitutional events. The interventions can be based on explicit powers or be developed in response to events. This happens despite most regional integration systems having economic cooperation rather than explicit democratisation aims. Organs that issue laws or take constraining decisions must have a clear right to do this and a basis for exercising power-in other words, be legitimate. Where legitimacy comes from is debated, but as most countries today are democracies or purport to be, it somehow emanates from the people. National governments have a higher degree of legitimacy than regional integration organisations, possibly except the European Union. Regional integration organisations have to prove their legitimacy. The article examines if, to what extent, and on what basis regional integration systems have the right to exercise an independent role on the global stage. Legitimacy is a precondition for effective application of decisions of the organisation. Given the frequent lack of strong enforcement mechanisms, the question of legitimacy becomes even more important. With strong legitimacy, decisions taken by the regional integration organisation will be followed to a large extent even despite absence of effective enforcement mechanisms.

Jewish Law, Hasidic Lore, and Hollywood Legend: The Cantor, the Mystic, and the Jurist

Cantor Yossele Rosenblatt was offered an opportunity that would make any performer swoon: a star role in the ground-breaking film The Jazz Singer (1927). Yet Rosenblatt refused this artistic opportunity of a lifetime. This paper contextualizes Rosenblatt’s baffling decision, by exploring one possible relationship between the arts and law; in this case--the art of storytelling and the Jewish legal system. The study demonstrates where the two pursuits tread separate, unlinked paths to a common end. This vector is refracted through the lens of liturgical performances outside the religious synagogue service; specifically the propriety of cantorial concerts featuring prayers from the High Holy Days. This issue is addressed in legal writing and in storytelling, each modality using its own tools to tackle the trend. It is noted that legal systems without effective enforcement mechanisms--such as Jewish law in the late modern period--could use arts as compensatory media for achieving societal order. More significantly, however, arts and law are not umbilically connected; each cultural creation independently strives to fashion society.

Cooperation in teams: The role of identity, punishment, and endowment distribution

Common identity and peer punishment have been identified as crucial means to reduce free riding and promote cooperation in teams. This paper examines the relative importance of these two mechanisms under two income distributions in team cooperation. In a repeated public good experiment, we use different combinations of homogeneous/heterogeneous endowments, strong/weak identity, and absence/presence of peer punishment. We find that without punishment, a strong identity can raise cooperation in homogenous and heterogeneous teams, but that the effect depends on the strength of the identity. When punishment is introduced, the impact of punishment depends on the strength of the identity-building activity and the effectiveness of punishment. Furthermore, we find no evidence of stronger cooperation or punishment in teams with strong identity. These findings provide important implications for management policy makers in organizations: ex ante income heterogeneity should be implemented in teams with caution, and the decision of whether identity or punishment is a more effective norm enforcement mechanism in teams is rather sensitive to their interaction and relative strengths.

Vertical Restraints Facilitating Horizontal Collusion: ‘Stretching’ Agreements in a Comparative Approach

This article discusses the approaches of the European Union (EU) and of the United States (US) to the notions of agreement and concerted practice applied to horizontal collusive consequences of vertical restraints. It concludes that networks of vertical restraints blur the differences between vertical and horizontal agreements; therefore, both options of attack are available for enforcers in the EU and the US context. If the analysed vertical restraints are adopted in parallel by agreement, they should be deemed illegal as long as they restrict competition producing collusive consequences. In the absence of explicit coordination to adopt the practice, I suggest first looking for a stretched concept of horizontal agreement or a broadly interpreted concept of concerted practice, including unilateral ‘communication’ that intentionally reduces uncertainty. Even when the analysed practices are adopted individually and not by all firms, they can represent a commitment to focal points, observable by market players, thus amounting to communication of intent. If that is not possible, I propose that an analysis of market power, incentives, coercion and induction should guide the finding of an illegal vertical agreement and ground the analysis of the consequences. The agreement/concerted practice path is an appropriate, feasible and coherent way to deal with vertical restraints facilitating horizontal tacit coordination, but that does not exclude alternative effective enforcement mechanisms.

Sustainable and responsible supply chain governance: challenges and opportunities

This paper introduces the Special Volume on sustainable and responsible supply chain governance. As globalized supply chains cross multiple regulatory borders, the firms involved in these chains come under increasing pressure from consumers, NGOs and governments to accept responsibility for social and environmental matters beyond their immediate organizational boundaries. Governance arrangements for global supply chains are therefore increasingly faced with sustainability requirements of production and consumption. Our primary objectives for this introductory paper are to explore the governance challenges that globalized supply chains and networks face in becoming sustainable and responsible, and thence to identify opportunities for promoting sustainable and responsible governance. In doing so, we draw on 16 articles published in this Special Volume of the Journal of Cleaner Production as well as upon the broader sustainable supply chain governance literature. We argue that the border-crossing nature of global supply chains comes with six major challenges (or gaps) in sustainability governance and that firms and others attempt to address these using a range of tools including eco-labels, codes of conduct, auditing procedures, product information systems, procurement guidelines, and eco-branding. However, these tools are not sufficient, by themselves, to bridge the geographical, informational, communication, compliance, power and legitimacy gaps that challenge sustainable global chains. What else is required? The articles in this Special Volume suggest that coalition and institution building on a broader scale is essential through, for example, the development of inclusive multi-stakeholder coalitions; flexibility to adapt global governance arrangements to local social and ecological contexts of production and consumption; supplementing effective monitoring and enforcement mechanisms with education and other programs to build compliance capacity; and integration of reflexive learning to improve governance arrangements over time.