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Editorial

Access_open Solidarity and COVID-19: An Introduction

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Authors Wouter Veraart, Lukas van den Berge and Antony Duff
Author's information

Wouter Veraart
Wouter Veraart is Professor of Legal Philosophy at the Vrije Universiteit Amsterdam.

Lukas van den Berge
Lukas van den Berge is Assistant Professor of Legal Theory at Utrecht University.

Antony Duff
Antony Duff is Emeritus Professor of Philosophy at the University of Stirling and Emeritus Professor of Law at the University of Minnesota.

    Terms-of-service based actions against political and state actors as both key subjects and objects of political opinion formation have become a focal point of the ongoing debates over who should set and enforce the rules for speech on online platforms.
    With minor differences depending on national contexts, state regulation of platforms creating obligations to disseminate such actors’ information is considered dangerous for the free and unhindered discursive process that leads to the formation of public opinions.
    Reactions to the suspension of Trump as not the first, but the most widely discussed action of platform companies against a politician (and incumbent president) provide a glimpse on the state of platform governance debates across participating countries.
    Across the countries surveyed politicians tend to see the exercise of content moderation policies of large platform companies very critically
    The majority of politicians in European countries seem to be critical of the deplatforming of Trump, emphasizing fundamental rights and calling for such decisions to be made by states, not private companies
    These political standpoints stand in an unresolved conflict with the constitutional realities of participating countries, where incumbents usually cannot invoke fundamental rights when acting in their official capacities and where laws with “must carry” requirements for official information do not exist for social media and would likely only be constitutional for narrowly defined, special circumstances such as disaster prevention.
    Facebooks’ referral of the Trump-decision to its Oversight Board sparked a larger debate about institutional structures for improving content governance. The majority of participating countries has experience with self- or co-regulatory press-, media- or broadcasting councils to which comparisons can be drawn, foreshadowing the possible (co-regulatory) future of governing online speech.
    Media commentators in participating countries interpreted the deplatforming of Trump as a signal that far-right parties and politicians around the world may face increasing scrutiny, while conservative politicians and governments in multiple participating countries instrumentalized the actions against Trump as supposed proof of platform’s bias against conservative opinions.
    Even without specific legal requirements on content moderation, submissions from several countries refer to a general – often: constitutional – privileging of speech of politicians and office holders. This could potentially support or even compel the decisions of platforms to leave content of political actors up even if it violates their terms of service.


Martin Fertmann
Martin Fertmann is a PhD student at the Leibniz-Institut für Medienforschung | Hans-Bredow-Institut’s research programme “Regulatory Structures and the Emergence of Rules in Online Spaces”

Matthias C. Kettemann
Prof. dr. Matthias C. Kettemann, LL.M. (Harvard) is head of the research programme “Regulatory Structures and the Emergence of Rules in Online Spaces” at the Leibniz Institute for Media Research | Hans-Bredow-Institut.
Article

Access_open A Comparative Perspective on the Protection of Hate Crime Victims in the European Union

New Developments in Criminal Procedures in the EU Member States

Journal Erasmus Law Review, Issue 3 2021
Keywords hate crime, victims, victim rights, procedural justice, EU Member States, criminal procedure
Authors Suzan van der Aa, Robin Hofmann and Jacques Claessen
AbstractAuthor's information

    Hate crime victims involved in a criminal procedure experience difficulties that are different from problems encountered by other victims. In trying to meet the specific procedural needs of hate crime victims many EU Member States have introduced protective measures and services in criminal proceedings, but the adopted approaches are widely disparate. By reporting the results of an EU-wide comparative survey into hate crime victims within national criminal procedures the authors aim to: (1) make an inventory of the national (legal) definitions of hate crime and the protection measures available (on paper) for hate crime victims; and (2) critically discuss certain national choices, inter alia by juxtaposing the procedural measures to the procedural needs of hate crime victims to see if there are any lacunae from a victimological perspective. The authors conclude that the Member States should consider expanding their current corpus of protection measures in order to address some of the victims’ most urgent needs.


Suzan van der Aa
Suzan van der Aa, PhD, is Professor of Criminal Law at Maastricht University, the Netherlands.

Robin Hofmann
Robin Hofmann is Assistant Professor at Maastricht University, the Netherlands.

Jacques Claessen
Jacques Claessen is Professor at Maastricht University, the Netherands.
Article

Consensual Accommodation of Sharia Law and Courts in Greece

Journal European Journal of Law Reform, Issue 2 2021
Keywords choice architecture, law reform, Molla Sali v. Greece, Mufti, multicultural accommodation, Muslim minority, nomoi group, Sharia law
Authors Nikos Koumoutzis
AbstractAuthor's information

    Having been exempted from a massive population exchange that took place between Greece and Turkey under the Treaty of Lausanne (1923), the Muslim minority of Western Thrace enjoys ever since a special status providing for the application of the Sharia law in family and succession matters, as well as the jurisdiction of the Mufti for the resolution of relevant disputes. A reform introduced by Law 4511/2018 marks a watershed moment in this long history. From now on, the Sharia law and the Mufti cease to be mandatory; their intervention requires the consent of the members of the minority, who also have the alternative to subject to the civil law and courts. This article tries to explore key features of the new model providing for an accommodation of the Muslim personal legal system based on choice. It focuses on the technique employed to structure the right of choice, on the proper ways for the exercise of choice, on the possibilities offered (or not) to make a partial choice only and revoke a previously made choice. In the end, a further question is raised, concerning how effective the right of choice may prove in the hands of women insiders, given that these are the most likely to experience pressure to demonstrate loyalty and not ignore the traditions and values – including the nomos – of their collective.


Nikos Koumoutzis
Nikos Koumoutzis is Associate Professor Law School at the University of Nicosia, ORCID ID: https://orcid.org/0000-0003-4362-2320
Article

Access_open Mechanisms for Correcting Judicial Errors in Germany

Journal Erasmus Law Review, Issue 4 2020
Keywords criminal proceedings, retrial in favour of the convicted, retrial to the disadvantage of the defendant, Germany, judicial errors
Authors Michael Lindemann and Fabienne Lienau
AbstractAuthor's information

    The article presents the status quo of the law of retrial in Germany and gives an overview of the law and practice of the latter in favour of the convicted and to the disadvantage of the defendant. Particularly, the formal and material prerequisites for a successful petition to retry the criminal case are subject to a detailed presentation and evaluation. Because no official statistics are kept regarding successful retrial processes in Germany, the actual number of judicial errors is primarily the subject of more or less well-founded estimates by legal practitioners and journalists. However, there are a few newer empirical studies devoted to different facets of the subject. These studies will be discussed in this article in order to outline the state of empirical research on the legal reality of the retrial procedure. Against this background, the article will ultimately highlight currently discussed reforms and subject these to a critical evaluation as well. The aim of the recent reform efforts is to add a ground for retrial to the disadvantage of the defendant for cases in which new facts or evidence indicate that the acquitted person was guilty. After detailed discussion, the proposal in question is rejected, inter alia for constitutional reasons.


Michael Lindemann
Michael Lindemann is Professor for Criminal Law, Criminal Procedure and Criminology at the Faculty of Law of Bielefeld University, Germany.

Fabienne Lienau
Fabienne Lienau is Research Assistant at the Chair held by Michael Lindemann.
Human Rights Literature Review

Belarus

Journal East European Yearbook on Human Rights, Issue 1 2020
Authors E. Konnova and P. Marshyn
Author's information

E. Konnova
Head of the Chair of International Law of Belarusian State University, Director of Human Rights Center based at the Faculty of International Relations of Belarusian State University, PhD (international law).

P. Marshyn
PhD student at the Chair of International Law of Belarusian State University, LLM (law). Justice of Belarus, available at: https://justbel.info/pages/about-us (last accessed 26 July 2020).
Article

Access_open Exoneration in Sweden

Is It Not about Time to Reform the Swedish Model?

Journal Erasmus Law Review, Issue 4 2020
Keywords wrongful convictions, extraordinary legal remedy, exoneration, exoneration in Sweden
Authors Dennis Martinsson
AbstractAuthor's information

    This article reviews exoneration in Sweden, with a focus on the procedure of applying for exoneration. First, it highlights some core features of Swedish criminal procedural law, necessary to understand exoneration in the Swedish context. Secondly, it outlines the possibilities in Swedish law to apply for exoneration, both in favour of a convicted person and to the disadvantage of a previously acquitted defendant. Thirdly, it identifies some challenges with the current Swedish model of administering applications for exoneration. Fourthly, it argues that the current system should be reformed by introducing into Swedish law a review committee that administers applications for exoneration.


Dennis Martinsson
Dennis Martinsson is Assistant Professor in the Department of Law of Stockholm University in Sweden.
Case Notes

Practical Questions Concerning the Relationship Between a Member State’s Constitution, EU Law and the Case-Law of the CJEU

Decision No. 2/2019. (III. 5.) AB of the Constitutional Court of Hungary

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords Constitutional Court of Hungary, constitutional dialogue, non-refoulement, right to asylum, EU law and national law
Authors Marcel Szabó
AbstractAuthor's information

    In 2018, the Hungarian Parliament amended the Fundamental Law, which, among others, contains the principle of non-refoulement, and stipulated at constitutional level that “a non-Hungarian national shall not be entitled to asylum if he or she arrived in the territory of Hungary through any country where he or she was not persecuted or directly threatened with persecution.” Partly due to this new provision of the Fundamental Law and partly based on other Hungarian laws, the European Commission initiated an infringement procedure against Hungary. According to the Hungarian Government, in this procedure the Commission misinterprets the Fundamental Law, therefore (inter alia) the authentic interpretation of this provision was requested from the Constitutional Court. In its Decision No. 2/2019. (III. 5.) AB, the Constitutional Court did not only interpret the provision in question, but it also elaborated on certain matters regarding its own competence in relation to EU law, as well as making relevant findings also in relation to Hungary’s constitution and the interpretation thereof in accordance with the EU law, based on the doctrine of ‘constitutional dialogue’. In this paper, I analyze this decision of the Constitutional Court in detail.


Marcel Szabó
Marcel Szabó: professor of law, Pázmány Péter Catholic University, Budapest; justice, Constitutional Court of Hungary, Budapest.
Article

European Citizens’ Initiatives for the Protection and Promotion of Rights and Interests of National Minorities

Latest Developments

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords European Citizens’ Initiative, national minorities, Minority SafePack, cohesion policy, participatory democracy
Authors Balázs Tárnok
AbstractAuthor's information

    This paper examines the latest developments in the two minority-related European Citizens’ Initiatives (ECI), the Minority SafePack Initiative and the Cohesion Policy Initiative (ECI on National Minority Regions). A key theoretical question of this paper is whether the ECI can be seen as an effective tool for the protection and promotion of the rights and interests of national minorities in the EU. The paper presents the most recent judgments of the General Court and the CJEU related to these ECIs. The Courts made important statements in terms of the admissibility criteria of ECIs, as well the possibility to propose EU legislation aiming to increase the protection of persons belonging to national and linguistic minorities. The paper also investigates the experiences of the signature collection campaign of the Cohesion Policy Initiative and the current status of the Minority SafePack Initiative in the examination phase. Finally, the paper aims to set up a prognosis on the future of these ECIs, taking into consideration the Commission’s latest proposal on the extension of the ECI deadlines.


Balázs Tárnok
Balázs Tárnok: junior research fellow, National University of Public Service, Europe Strategy Research Institute, Budapest; PhD candidate, Pázmány Péter Catholic University, Budapest.

    This article engages in a comparison of the regulation of PR in the Netherlands and the UK (specifically England and Wales). The latter is a good comparator as it operates a similar regulatory approach to the Netherlands, that of conditional acceptance of PR, the condition being (prior) consent. Furthermore, the UK boasts a more detailed and mature legal framework that continues to be tested through caselaw, and thus offers insight into how a regulatory approach conditional upon the (prior) consent of the deceased can fare.
    The article starts with a brief exposition of the new Dutch guidelines and the current legislative position in the Netherlands vis-à-vis posthumous reproduction (part II). Likewise, the relevant UK guidelines and legislative position are summarized (part III). This article draws out the similarities and differences between the two regimes, as well as engaging in a critical analysis of the regulations themselves. It then looks at how the UK regime has been challenged in recent years through caselaw in anticipation of the issues that might confront the Netherlands in future (part IV). The article concludes (part V) that the key lesson to be drawn from the UK experience is that clarity and consistency is crucial in navigating this ethically, emotionally, and time sensitive area. Further, that both the UK and the Netherlands can expect demand for more detailed and precise regulatory guidance as requests for the procedure increase, and within evermore novel circumstances.

    ---

    Dit artikel vergelijkt de regulering van postume reproductie (PR) in Nederland en het Verenigd Koninkrijk (in het bijzonder Engeland en Wales). Laatstgenoemde is daarvoor zeer geschikt, aangezien het VK een vergelijkbare reguleringsbenadering heeft als Nederland, namelijk de voorwaardelijke acceptatie van PR, waarbij (voorafgaande) toestemming de voorwaarde is. Bovendien beschikt het VK over een gedetailleerder en volwassener juridisch kader dat continu wordt getoetst door middel van rechtspraak. Dit kader biedt daarmee inzicht in hoe een regulerende benadering met als voorwaarde (voorafgaande) toestemming van de overledene kan verlopen.
    Het artikel vangt aan met een korte uiteenzetting van de nieuwe Nederlandse richtlijnen en de huidige positie van de Nederlandse wetgever ten opzichte van postume reproductie (deel II). De relevante Britse richtlijnen en het wetgevende standpunt worden eveneens samengevat (deel III). Vervolgens worden de overeenkomsten en verschillen tussen de twee regimes naar voren gebracht, met daarbij een kritische analyse van de regelgeving. Hierop volgt een beschrijving van hoe het VK de afgelopen jaren is uitgedaagd in de rechtspraak, daarmee anticiperend op vraagstukken waarmee Nederland in de toekomst te maken kan krijgen (deel IV). Tot slot volgt een conclusie (deel V) waarin wordt aangetoond dat de belangrijkste les die uit de Britse ervaring kan worden getrokken, is dat duidelijkheid en consistentie cruciaal zijn bij het navigeren door dit ethische, emotionele en tijdgevoelige gebied. En daarnaast, at zowel het VK als Nederland een vraag naar meer gedetailleerde en precieze regelgeving kunnen verwachten naarmate verzoeken om deze procedure toenemen, met daarbij steeds weer nieuwe omstandigheden.


Dr. N. Hyder-Rahman
Nishat Hyder-Rahman is a Post-doctoral Researcher at the Utrecht Centre for European Research into Family Law, Molengraaff Institute for Private Law, Utrecht University.
Article

Parliamentary Control over Delegated Legislation in Japan

Journal European Journal of Law Reform, Issue 4 2019
Keywords statutory instruments, sole law-making organ, supplementary resolution, legislative veto, Committee on Oversight of Administration
Authors Katsuhiro Musashi
AbstractAuthor's information

    The delegation of legislation from the parliament to the administration plays an important role in a modern administrative state. In Britain, parliamentary control – whereby the parliament has the right to approve or veto a delegated legislation – has been institutionalized and implemented. On the other hand, the Japanese parliament is powerless to approve a delegated order beforehand or ex post. Therefore, improper procedures such as the deviation of the delegated order from the enabling act by a governmental agency, or the introduction of arbitrary administrative measures, have been carried out under insufficient supervision by the parliament in Japan. The National Diet of Japan should, ideally, also hold the power to control the administrative order on the basis of the legal principles formulated by the Diet. Therefore, we propose the introduction of a parliamentary control system that invalidates the ex post enactment of a cabinet order if both Houses of parliament refuse the order within 40 days of its submission. These procedures would have increased efficacy when augmented with a political check function on the proposed cabinet orders by the parliament’s Committee on Oversight of Administration, or their standing committees.


Katsuhiro Musashi
Katsuhiro Musashi is Professor of Law and Policy at the Faculty of Policy Studies, Doshisha University in Kyoto, Japan.

    The UN General Assembly established the International Law Commission (“ILC”) in 1947 to assist States with the promotion of 1) the progressive development of international law and 2) its codification. The ILC’s first assignment from the General Assembly was to formulate the Nuremberg Principles, which affirmed the then radical idea that individuals can be held liable for certain international crimes at the international level. Since then, the ILC has played a seminal role in the development of modern international criminal law. In 2017, the ILC adopted on first reading a draft convention aimed at the prevention and punishment of crimes against humanity which it transmitted to States for comments. The draft treaty will help fill the present gap in the law of international crimes since States criminalized genocide in 1948 and war crimes in 1949, but missed the opportunity to do so for crimes against humanity. This Article examines the first reading text using the lens of the ILC’s two-pronged mandate. Part II explains how the ILC can take up new topics and the main reasons why it decided to propose a new crimes against humanity convention. Part III discusses positive features of the draft convention, highlighting key aspects of each of the Draft Articles. Part IV critiques the ILC draft treaty focusing on inconsistencies in the use of the ICC definition of the crime, immunities, amnesties, and the lack of a proposal on a treaty monitoring mechanism. The final part draws tentative conclusions. The author argues that, notwithstanding the formal distinction drawn by the ILC Statute between progressive development, on the one hand, and codification, on the other hand, the ILC’s approach to the crimes against humanity topic follows a well settled methodology of proposing draft treaties that are judged likely to be effective and broadly acceptable to States rather than focusing on which provisions reflect codification and which constitute progressive development of the law. It is submitted that, if the General Assembly takes forward the ILC’s draft text to conclude a new crimes against humanity treaty after the second reading, this will make a significant contribution to the development of modern international criminal law.


Charles C. Jalloh B.A. LL.B Ph.D
Professor of Law, Florida International University and Member, International Law Commission.
Article

Access_open Mercosur: Limits of Regional Integration

Journal Erasmus Law Review, Issue 3 2019
Keywords Mercosur, European Union, regionalism, integration, international organisation
Authors Ricardo Caichiolo
AbstractAuthor's information

    This study is focused on the evaluation of successes and failures of the Common Market of the South (Mercosur). This analysis of Mercosur’s integration seeks to identify the reasons why the bloc has stagnated in an incomplete customs union condition, although it was originally created to achieve a common market status. To understand the evolution of Mercosur, the study offers some thoughts about the role of the European Union (EU) as a model for regional integration. Although an EU-style integration has served as a model, it does not necessarily set the standards by which integration can be measured as we analyse other integration efforts. However, the case of Mercosur is emblematic: during its initial years, Mercosur specifically received EU technical assistance to promote integration according to EU-style integration. Its main original goal was to become a common market, but so far, almost thirty years after its creation, it remains an imperfect customs union.
    The article demonstrates the extent to which almost thirty years of integration in South America could be considered a failure, which would be one more in a list of previous attempts of integration in Latin America, since the 1960s. Whether it is a failure or not, it is impossible to envisage EU-style economic and political integration in South America in the foreseeable future. So far, member states, including Brazil, which could supposedly become the engine of economic and political integration in South America, have remained sceptical about the possibility of integrating further politically and economically. As member states suffer political and economic turmoil, they have concentrated on domestic recovery before being able to dedicate sufficient time and energy to being at the forefront of integration.


Ricardo Caichiolo
Ricardo Caichiolo, PhD (Université catholique de Louvain, Belgium) is legal and legislative adviser to the Brazilian Senate and professor and coordinator of the post graduate programs on Public Policy, Government Relations and Law at Ibmec (Instituto Brasileiro de Mercado de Capitais, Brazil).
Article

Constitutional Unamendability in the Nordic Countries

Journal European Journal of Law Reform, Issue 3 2019
Keywords the Nordic constitutions, constitutional unamendability, explicit limits, implicit limits, supra-constitutional limits, review of constitutional amendments
Authors Tuomas Ojanen
AbstractAuthor's information

    With the exception of the Constitution of Norway, the Constitutions of Denmark, Finland, Iceland and Sweden are silent on any substantive limits to the power of constitutional amendment. Until now, the topic of constitutional unamendability has also attracted very little attention in Nordic constitutional scholarship.
    However, some idiosyncrasies making up the identity of the Nordic constitutions, as well as constitutional limits to Nordic participation in European integration, may implicate the existence of some implicit limits to amendment powers. Similarly, international human rights obligations binding upon the Nordic countries, as well as European Union law and European Economic Area law, may impose some external, supra-constitutional limitations on the powers of Nordic constitutional amenders. However, the existence of any implicit or supra-constitutional unamendability is speculative in the current state of evolution of Nordic constitutionalism. This is even more so since the use of constitutional amendment powers are beyond judicial review by the Nordic courts.


Tuomas Ojanen
Tuomas Ojanen is Professor of Constitutional Law, University of Helsinki, contact: tuomas.ojanen@helsinki.fi.
Article

Access_open Constitutional Norms for All Time?

General Entrenchment Clauses in the History of European Constitutionalism

Journal European Journal of Law Reform, Issue 3 2019
Keywords constitutional amendments, constitutional law, constitutional politics, constitutionalism, entrenchment clauses, eternity clauses
Authors Michael Hein
AbstractAuthor's information

    ‘General entrenchment clauses’ are constitutional provisions that make amendments to certain parts of a constitution either more difficult to achieve than ‘normal’ amendments or even impossible, i.e., legally inadmissible. This article examines the origins of these clauses during the American Revolution (1776-77), their migration to the ‘Old World’, and their dissemination and differentiation on the European continent from 1776 until the end of 2015. In particular, the article answers three questions: (1) When, and in which contexts, did general constitutional entrenchment clauses emerge? (2) How have they migrated to and disseminated in Europe? (3) Which constitutional subjects do such clauses protect, and thus, which main functions do they aim to fulfil?


Michael Hein
Adult Education Center Altenburger Land, Altenburg, Germany. Email: mail@michaelhein.de. All cited websites were visited on June 18, 2018. Unless stated otherwise, all references to constitutions in this article are taken from M. Hein, The Constitutional Entrenchment Clauses Dataset, Göttingen 2018, http://data.michaelhein.de. All translations are by the author.
Article

Exploring the intertwining between human rights and restorative justice in private cross-border disputes

Journal The International Journal of Restorative Justice, Issue 1 2019
Keywords International human rights, private actors, horizontal effect, restorative justice
Authors Marta Sá Rebelo
AbstractAuthor's information

    International human rights instruments operate on the assumption that states are the focal human rights duty bearers. However, private actors can harm human rights as well. Moreover, since mechanisms at a supranational level are lacking, these instruments rely primarily on states for their enforcement. Yet states’ internal rules and courts are meant to address infringements that are confined within their borders, and are therefore often structurally unable to deal with violations having transnational impact. Restorative justice has proven to respond in depth to different kinds of wrongdoing and, although addressing the peculiarities of each case, restorative procedures can systemically prevent deviant behaviour as well. Additionally, as restorative justice relies on voluntary participation it need not operate in a specific territory. Having this broader picture in mind, the article explores whether restorative justice might be adequate for dealing with human rights infringements perpetrated by private actors that have cross-border impact.


Marta Sá Rebelo
Marta Sá Rebelo is a PhD researcher at Católica Global School of Law and a teaching assistant at Católica Lisbon School of Law, Universidade Católica Portuguesa, Lisbon, Portugal.
Article

Civil Society Perspectives on the Criminal Chamber of the African Court of Justice and Human Rights

Journal African Journal of International Criminal Justice, Issue 1-2 2018
Keywords Malabo Protocol, African Court, Criminal Chamber, International and Transnational Crimes, African Union
Authors Benson Chinedu Olugbuo LLB BL LLM Ph.D.
AbstractAuthor's information

    In June 2014, African Heads of States and Governments adopted the Protocol on the Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights in Malabo, Equatorial Guinea. The Malabo Protocol seeks to expand the jurisdiction of the African Court to international and transnational crimes. This development raises fundamental issues of jurisdiction, capacity, political will and regional complementarity in the fight against impunity in the African continent. The paper interrogates the role of Civil Society Organisations in the adoption and possible operationalisation of the Court in support of the efforts of the African Union to end human rights abuses and commission of international and transnational crimes within the continent.


Benson Chinedu Olugbuo LLB BL LLM Ph.D.
LLB (Nigeria); BL (Abuja); LLM (Pretoria); Ph.D. (Cape Town); Executive Director, CLEEN Foundation, Abuja–Nigeria and Research Associate, Public Law Department, University of Cape Town, South Africa.
Article

Access_open Evidence-Based Regulation and the Translation from Empirical Data to Normative Choices: A Proportionality Test

Journal Erasmus Law Review, Issue 2 2018
Keywords evidence-based, regulation, proportionality, empirical law studies, law and society studies
Authors Rob van Gestel and Peter van Lochem
AbstractAuthor's information

    Studies have shown that the effects of scientific research on law and policy making are often fairly limited. Different reasons can be given for this: scientists are better at falsifying hypothesis than at predicting the future, the outcomes of academic research and empirical evidence can be inconclusive or even contradictory, the timing of the legislative cycle and the production of research show mismatches, there can be clashes between the political rationality and the economic or scientific rationality in the law making process et cetera. There is one ‘wicked’ methodological problem, though, that affects all regulatory policy making, namely: the ‘jump’ from empirical facts (e.g. there are too few organ donors in the Netherlands and the voluntary registration system is not working) to normative recommendations of what the law should regulate (e.g. we need to change the default rule so that everybody in principle becomes an organ donor unless one opts out). We are interested in how this translation process takes place and whether it could make a difference if the empirical research on which legislative drafts are build is more quantitative type of research or more qualitative. That is why we have selected two cases in which either type of research played a role during the drafting phase. We use the lens of the proportionality principle in order to see how empirical data and scientific evidence are used by legislative drafters to justify normative choices in the design of new laws.


Rob van Gestel
Rob van Gestel is professor of theory and methods of regulation at Tilburg University.

Peter van Lochem
Dr. Peter van Lochem is jurist and sociologist and former director of the Academy for Legislation.
Article

Victims’ Right to Reparation in Light of Institutional and Financial Challenges

The International Criminal Court and the Reparation for the Victims of the Bogoro Massacre

Journal East European Yearbook on Human Rights, Issue 1 2018
Keywords Bogoro massacre (DRC), International Criminal Court, Katanga case, reparation, victims
Authors Péter Kovács
AbstractAuthor's information

    The aim of the article is the presentation of the recently issued documents – the ‘Order for reparation’ issued by the Trial Chamber II of the ICC and the document called ‘Notification’, recently adopted by the Trust Fund for Victims of the ICC – which are important first and foremost in the reparation procedure of the victims of the Bogoro massacre, subsequent to the case The Prosecutor v. Germain Katanga. Second, these documents will also have a considerable impact on the reparation procedures to be carried out by the ICC in the future. The reader can also see the interactions between classic sources of public international law and those norms which are very difficult to be characterized legally but without a doubt play a very important role during the procedure.


Péter Kovács
Professor of international law at the Péter Pázmány Catholic University, Budapest, and judge of the International Criminal Court (2015-2024).
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