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Article

Access_open The Resilience of Democracy in the Midst of the COVID-19 Pandemic

Democratic Compensators in Belgium, the Netherlands and France

Journal Politics of the Low Countries, Issue 2 2021
Keywords COVID-19, crisis-management, democratic compensators, exceptionalism
Authors Tom Massart, Thijs Vos, Clara Egger e.a.
AbstractAuthor's information

    Since January 2020, European countries have implemented a wide range of restrictions to contain the COVID-19 pandemic. Yet governments have also implemented democratic compensators in order to offset the negative impacts of restrictions. This article aims to account for the variation of their use between Belgium, the Netherlands and France. We analyse three drivers: the strength of counterpowers, the ruling parties’ ideological leanings and political support. Building on an original data set, our results distinguish between embedded and ad hoc compensators. We find that ad hoc compensators are championed mainly by counterpowers, but also by ideology of the ruling coalitions in Belgium and the Netherlands and used strategically to maintain political support in France. Evidence on the link between embedded compensators and counterpowers is more ambiguous.


Tom Massart
Tom Massart is a PhD candidate at ULB / CEVIPOL. His research mainly focuses on European economic governance.

Thijs Vos
Thijs Vos is a political scientist and research assistant at Groningen University.

Clara Egger
Clara Egger is assistant professor in international relations at Groningen University. She is currently leading the Exceptius project on Covid19 containment policies in Europe.

Claire Dupuy
Claire Dupuy is professor of comparative politics at UCLouvain. She specializes in comparative public policy with a focus on multilevel governance, federalism and regionalization processes.

Constance Morel-Jean
Constance Morel-Jean is a master’s student at Grenoble-Alpes University. She specialises in the study of political behaviour.

Raul Magni-Berton
Raul Magni-Berton is professor of political science at Grenoble-Alpes University, PACTE research unit. His research mainly focuses on democracy, its institutions and norms.

Sébastian Roché
Sebastian Roché is CNRS Research Professor at Grenoble-Alpes University, PACTE research unit. He specializes in policing and legitimacy studies.
Article

Democratic Scrutiny of COVID-19 Laws

Are Parliamentary Committees Up to the Job?

Journal European Journal of Law Reform, Issue 2 2021
Keywords parliament, scrutiny, committees, COVID-19, rights, legislation, Australia, New Zealand, United Kingdom
Authors Sarah Moulds
AbstractAuthor's information

    In response to the complex and potentially devastating threat posed by COVID-19, parliaments around the world have transferred unprecedented powers to executive governments and their agencies (Edgar, ‘Law-making in a Crisis’, 2020), often with the full support of the communities they represent. These laws were passed within days, sometimes hours, with limited safeguards and a heavy reliance on sunsetting provisions, some of which are dependent on the pandemic being officially called to an end. While parliaments themselves have suspended or reduced sitting days (Twomey, ‘A Virtual Australian Parliament is Possible’, 2020), parliamentary committees have emerged as the forum of choice when it comes to providing some form of parliamentary oversight of executive action.
    This article aims to evaluate the capacity of parliamentary committees established within the Australian, New Zealand (NZ) and United Kingdom (UK) parliaments to effectively scrutinize and review governments’ responses to COVID-19. It does this by comparing the legal framework underpinning the relevant committees in each jurisdiction and examining the work of these committees with a view to offering some preliminary views as to their impact on the shape of the laws made in response to COVID-19 in those jurisdictions. The article concludes by offering some preliminary observations about the scrutiny capacity of the parliamentary committee systems in Australia, NZ and the UK in the context of emergency lawmaking and flags areas for further research, evaluation and reform.


Sarah Moulds
Dr. Sarah Moulds, University of South Australia.
Article

Compensation for Victims of Disasters

A Comparative Law and Economic Perspective

Journal European Journal of Law Reform, Issue 2 2021
Keywords victim compensation, disaster risk reduction, government relief, insurance, moral hazard, public private partnership
Authors Qihao He and Michael Faure
AbstractAuthor's information

    This article provides a critical analysis of the compensation awarded for victims of disasters. First, general guiding principles of compensation are discussed. Next, various ways of government provided victim compensation, both during the disaster and ex post are critically reviewed. Then the article focuses on ex ante insurance mechanisms for victim compensation, arguing that insurance can play a role in disaster risk reduction. Finally, the article explains how the government can cooperate with insurers in a public-private partnership for victim compensation, thus facilitating the availability of disaster insurance.


Qihao He
Qihao He is Associate Professor of Law, China University of Political Science and Law, College of Comparative Law. Beijing, China. Qihao He acknowledges the financial support of China Ministry of Education Research Program on Climate Change and Insurance (No. 18YJC820024), and Comparative Private Law Innovation Project of CUPL (No. 18CXTD05).

Michael Faure
Michael Faure is Michael G. Faure, Professor of Comparative and International Environmental Law, Maastricht University, and Professor of Comparative Private Law and Economics, Erasmus University Rotterdam, The Netherlands. The authors thank the participants in the symposium of Regulating Disasters through Private and Public Law: Compensation and Policy held in University of Haifa, and the comments from Suha Ballan.
Article

Access_open Approach with Caution

Sunset Clauses as Safeguards of Democracy?

Journal European Journal of Law Reform, Issue 2 2021
Keywords emergency legislation, sunset clauses, post-legislative review, COVID-19
Authors Sean Molloy
AbstractAuthor's information

    In response to the COVID-19 pandemic, leaders across the globe scrambled to adopt emergency legislation. Amongst other things, these measures gave significant powers to governments in order to curb the spreading of a virus, which has shown itself to be both indiscriminate and deadly. Nevertheless, exceptional measures, however necessary in the short term, can have adverse consequences both on the enjoyment of human rights specifically and democracy more generally. Not only are liberties severely restricted and normal processes of democratic deliberation and accountability constrained but the duration of exceptional powers is also often unclear. One potentially ameliorating measure is the use of sunset clauses: dispositions that determine the expiry of a law or regulation within a predetermined period unless a review determines that there are reasons for extension. The article argues that without effective review processes, far from safeguarding rights and limiting state power, sunset clauses can be utilized to facilitate the transferring of emergency powers whilst failing to guarantee the very problems of normalized emergency they are included to prevent. Thus, sunset clauses and the review processes that attach to them should be approached with caution.


Sean Molloy
Dr Sean Molloy is a Lecturer in Law at Northumbria University.
Article

Reducing Ethnic Conflict in Guyana through Political Reform

Journal European Journal of Law Reform, Issue 1 2021
Keywords Guyana, race, ethnic conflict, political power, constitutional reform
Authors Nicola Pierre
AbstractAuthor's information

    This article discusses using constitutional reform to reduce ethnic conflict in Guyana. I start by exploring the determinants of ethnic conflict. I next examine Guyana’s ethnopolitical history to determine what factors led to political alignment on ethnic lines and then evaluate the effect of the existing political institutions on ethnic conflict. I close with a discussion on constitutional reform in which I consider a mix of consociationalist, integrative, and power-constraining mechanisms that may be effective in reducing ethnic conflict in Guyana’s ethnopolitical circumstances.


Nicola Pierre
Nicola Pierre is Commissioner of Title and Land Court Judge in Guyana.
Article

Access_open A future agenda for environmental restorative justice?

Journal The International Journal of Restorative Justice, Issue 1 2021
Keywords restorative justice, restorative practice, environmental justice, environmental regulation
Authors Miranda Forsyth, Deborah Cleland, Felicity Tepper e.a.
AbstractAuthor's information

    The challenges of developing meaningful environmental regulation to protect communities and the environment have never been greater. Environmental regulators are regularly criticised for failing to act hard and consistently, in turn leading to demands for harsher punishments and more rigorous enforcement. Whilst acknowledging the need for strong enforcement to address wantonly destructive practices threatening communities and ecosystems, we argue that restorative approaches have an important role. This article explores a future agenda for environmental restorative justice through (1) situating it within existing scholarly and practice-based environmental regulation traditions; (2) identifying key elements and (3) raising particular theoretical and practical challenges. Overall, our vision for environmental restorative justice is that its practices can permeate the entire regulatory spectrum, going far beyond restorative justice conferences within enforcement proceedings. We see it as a shared and inclusive vision that seeks to integrate, hybridise and build broader ownership for environmental restorative justice throughout existing regulatory practices and institutions, rather than creating parallel structures or paradigms.


Miranda Forsyth
Miranda Forsyth is Associate Professor at the School of Regulation and Governance in the College of Asia and Pacific in the Australian National University, Australia.

Deborah Cleland
Deborah Cleland is a Postdoctoral Fellow at the School of Regulation and Governance in the College of Asia and Pacific in the Australian National University, Australia.

Felicity Tepper
Felicity Tepper is a Senior Research Officer at the School of Regulation and Governance in the College of Asia and Pacific in the Australian National University, Australia.

Deborah Hollingworth
Deborah Hollingworth is a Principal Solicitor at the Environment Protection Authority Victoria, Australia.

Milena Soares
Milena Soares is a public servant at the Técnica de Desenvolvimento e Administração,Brazil.

Alistair Nairn
Alistair Nairn is Senior Engagement Advisor at the Environment Protection Authority Victoria, Australia.

Cathy Wilkinson
Cathy Wilkinson is Professor of Practice at Monash Sustainable Development, Australia. Contact author: miranda.forsyth@anu.edu.au.
Article

A maximalist approach of restorative justice to address environmental harms and crimes

Analysing the Brumadinho dam collapse in Brazil

Journal The International Journal of Restorative Justice, Issue 1 2021
Keywords environmental law, maximalist approach, restorative justice principles and concepts, decision-making process, sanctioning rules
Authors Carlos Frederico Da Silva
AbstractAuthor's information

    In this article, the author analyses court cases arising from the rupture of the mining tailings dam in the city of Brumadinho, Brazil, on 25 January 2019. In a civil lawsuit context, legal professionals recognised damage to people and the environment during hearings involving a judge, prosecutors, lawyers and corporate representatives. The centrality of the victims’ interests and the need for remedial measures prevailed in the agreements signed mainly to provide urgent relief and restore damage to the ecosystem. In the criminal lawsuit dealing with the same facts, there have not yet been acquittals, non-prosecution agreements or convictions. By employing a socio-legal approach to contrast different types of legal reasoning, this article explores the possibilities of restorative responses in civil proceedings and explains the lack of them in criminal justice. In highlighting some characteristics of punishment theories that hinder a possible restorative justice approach, the article offers a critique of a penal system mostly linked to argumentative competition rather than persuasive conflict resolution. The author argues that jurisprudence should address transdisciplinary concepts, such as responsive regulation, restorative efforts, proportionality and individualisation of punishment. The discussion can shed light on the decision-making process to allow environmental restorative justice responses to crimes.


Carlos Frederico Da Silva
Carlos Frederico Braga Da Silva is a PhD researcher associated to the Graduate School of Sociology at the Federal University of Minas Gerais, Brazil, and to the Canadian Chair of Legal Traditions and Penal Rationality, Faculty of Social Sciences, Department of Criminology, University of Ottawa, Canada. He also works as a state judge in Belo Horizonte, Minas Gerais, Brazil. Contact author: carlosfrebrasilva@gmail.com.
Article

Access_open Addressing Problems Instead of Diagnoses

Reimagining Liberalism Regarding Disability and Public Health

Journal Netherlands Journal of Legal Philosophy, Issue 1 2021
Keywords Vulerability Theory, Liberalism, Convention on the Rights of Persons with Disabilities (CRPD), Public Health, Capabilities Approach
Authors Erwin Dijkstra
AbstractAuthor's information

    The public health systems of liberal states systematically fail to meet the goals and obligations of the Convention on the Rights of Persons with Disabilities, which aims to facilitate full societal participation and independent life choices by all impaired persons, as well as the unburdening of their private caretakers. This failure does not stem from a lack of money or effort by governments and other societal institutions, but flaws in the anatomy of these systems. As these systems confine institutional assistance to the needs of persons with certain delineated disabilities, they neglect the needs of other persons, whose disabilities do not fit this mould. The responsibility for the latter group thus falls to their immediate social circle. These private caretakers are in turn seldom supported. To remedy this situation, I will present the alternative paradigm of vulnerability theory as the possible foundation for a more inclusive approach to public health.


Erwin Dijkstra
Erwin Dijkstra LLM MA is lecturer and researcher at the Department of Jurisprudence of the Leiden Law School of Leiden University.
Article

Access_open The Common Law Remedy of Habeas Corpus Through the Prism of a Twelve-Point Construct

Journal Erasmus Law Review, Issue 2 2021
Keywords Habeas corpus, common law, detainee, Consitution, liberty
Authors Chuks Okpaluba and Anthony Nwafor
AbstractAuthor's information

    Long before the coming of the Bill of Rights in written Constitutions, the common law has had the greatest regard for the personal liberty of the individual. In order to safeguard that liberty, the remedy of habeas corpus was always available to persons deprived of their liberty unlawfully. This ancient writ has been incorporated into the modern Constitution as a fundamental right and enforceable as other rights protected by virtue of their entrenchment in those Constitutions. This article aims to bring together the various understanding of habeas corpus at common law and the principles governing the writ in common law jurisdictions. The discussion is approached through a twelve-point construct thus providing a brief conspectus of the subject matter, such that one could have a better understanding of the subject as applied in most common law jurisdictions.


Chuks Okpaluba
Chuks Okpaluba, LLB LLM (London), PhD (West Indies), is a Research Fellow at the Free State Centre for Human Rights, University of the Free State, South Africa. Email: okpaluba@mweb.co.za.

Anthony Nwafor
Anthony O. Nwafor, LLB, LLM, (Nigeria), PhD (UniJos), BL, is Professor at the School of Law, University of Venda, South Africa. Email: Anthony.Nwafor@univen.ac.za.
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