Operationalizing the Comparative International Human Rights Law Method: A Case Study of CEDAW in National Courts

In this chapter, I focus on how the example of CEDAW illustrates the methodological and conceptual difficulties that future work in comparative international human is likely to encounter. Despite the challenges, I suggest that the worked example of CEDAW has raised interesting lines for empirical analysis, and additional perspectives which may enrich normative inquiry, sufficient to justify comparative international human rights law being regarded as likely to give rise to insights that might not otherwise have emerged, and therefore to be as an approach worth pursuing in the future.

Why do national court judges refer to human rights treaties?: A comparative international law analysis of CEDAW

An analysis was conducted of 325 national judicial decisions across 55 jurisdictions, in which CEDAW was referred to in the reported decision. Despite predictions to the contrary based on previous scholarship, significant variations between courts in their interpretation of CEDAW occurred relatively infrequently, courts referred relatively seldom to interpretations of CEDAW by other national courts, and there was little evidence of transnational dialogic approaches to judging. An analysis of these results suggests that domestic judges invoking CEDAW act primarily as domestic actors who use international law in order to advance domestic goals, rather than acting primarily as agents of the international community in applying CEDAW domestically, or contributing to the transnational shaping of international law to suit national interests. The Article suggests an understanding of the domestic implementation of a human rights treaty as not only law, but a unique kind of law that performs a particular function, in light of its quality as something akin to hard and soft law simultaneously.

Software Patents and the Digital Environment

Software is patentable in Europe so long as there is sufficient ‘technical contribution’ under the decades-long interpretation of the European Patent Convention made by the Boards of Appeal of the European Patent Office. Despite the failure of the proposed Directive on Computer Implemented Inventions, opponents of software patents have failed to have any affect upon this technical contrivance. Yet, while national courts find the Boards of Appeal decisions persuasive, ‘technical contribution’ remains a difficult test for these various courts to apply. In this article I outline that the test is difficult to utilise in national litigation (it is an engineering approach, rather than a legal one) and suggest that as the Boards of Appeal become less important (and thus less persuasive) should the proposed Unified Patent Court come to fruition, the ‘technical contribution’ test is unlikely to last. This may again make the whole issue of what/whether/how software should be patentable open to debate, hopefully in a less aggressive environment than has existed to date.

Sovereignty, Article 4(2) TEU and the Respect of National Identities: Swinging the Balance of Power in Favour of the Member States?

The question of whether and to what extent sovereignty has been transferred to the European Union (EU) from its Member States remains a central debate within the EU and is interlinked with issues such as Kompetenz-Kompetenz, direct effect and primacy. Central to any claim to sovereignty is the principle of primacy, which requires that Member States uphold EU law over national law where there is a conflict. However, limitations to primacy can traditionally be found in national jurisprudence and the Maastricht Treaty introduced a possible EU limitation with the requirement that the EU respect national identities of Member States. The Lisbon Treaty provided only minimal further support to the principle of primacy whilst simultaneously developing the provision on national identities, now found within Article 4(2) TEU. There are indications from the literature, national constitutional courts and the Court of Justice of the EU that the provision is gathering strength as a legal tool and is likely to have a wider scope than the text might indicate. In its new role, Article 4(2) TEU bolsters the Member States’ claim to sovereignty and the possibility to uphold aspects crucial to them in conflict with EU law and the principle of primacy. Consequently, it is central to the relationship between the constitutional courts of the Member States and the CJEU, and where the final elements of control remain in ‘hard cases’. However, it does so as part of EU law, thereby facilitating the evasion of direct fundamental conflicts and reflecting the concept of constitutional pluralism.

The German Federal Constitutional Court's Ruling on Outright Monetary Transactions (OMT) - Another Step Towards National Closure?

The German Federal Constitutional Court (FCC) ruling of 14 January 2014 deserves a thorough evaluation on several accounts: It is the first ever reference by the FCC to the Court of Justice of the European Union (CJEU), it represents a continuation of FCC case law aimed at restricting the impact of European Union law as interpreted by the Court of Justices of the European Union (CJEU) on German law as well as questioning Germany’s participation in an ever closer European Union, and it has the potential to dictate the future course of the EU’s Economic and Monetary Union (EMU).

This case note discusses three aspects of this decision. First, it considers the aims of challenging the youngest measures to contain the euro currency crisis before the FCC, focusing on the question in how far the claims are based on national closure as opposed to an ever closer union of the peoples of Europe. Secondly it analyzes in how far the aims the claims pursue are reflected in the FCC’s response. Thirdly, it considers the substantive relevance of this reference, highlighting the surprisingly vague consequences the FCC envisages should the CJEU not re-interpret the OMT decision as the FCC suggests, and illuminating the strategic aims of the reference without deference. In conclusion, it sketches the remaining scope for the EU to engage in or at least facilitate transnational solidarity.

Speaking with One Voice?: Ethno-national Division on the Constitutional Court of Bosnia-Herzegovina

The challenge of designing institutions to manage ethno-national conflict is one of the enduring concerns of political science. One important but relatively understudied aspect of this challenge is the design of constitutional courts. Courts are likely to play a key role in the maintenence of a constitutional settlement. But this role can be especially onerous in a deeply divided and post-conflict setting where the rule of law is weak and judges have ethno-national affiliations that may undermine the appearance of judicial neutrality. In such contexts, a court’s authority (including compliance with its decisions) cannot be taken for granted.

With reference the Constitutional Court of Bosnia-Herzegovina, and using an original dataset of the Court's non-unanimous plenary decisions, we test several hypotheses about the degree to which ethno-national affiliation influences judicial behavior. We find that (1) judges on the Constitutional Court do in fact divide predictably along ethno-national lines, (2) that these patterns are robust to changes in the tenure system, and (3) are independent of party political background.

The Shifting Battleground of Article 4(2) TEU: Evolving National Identities and the corresponding need for EU management?

Article 4(2) TEU requires that the European Union (EU) respect the Member States’ national identities, creating a legal obligation enforceable before the CJEU and valuable in political negotiations. However, the concept of national identities is unclear, leaving open questions about the scope or parameters of the provision and its applicability. The CJEU appears likely to take a relatively flexible approach in light of Article 4(2) TEU’s relationship with national constitutional courts’ reserves. This flexible approach would enable Member States to rely upon a range of aspects as part of their national identity, including ones that were previously unidentified. This is a crucial feature if one considers that national identities may evolve gradually or even dramatically, including where Member States purposefully attempt to develop their national identities further. This possibility of an evolved national identity is exemplified by the French Charte de l’Environnement. It may thereby be possible for Member States to stretch the scope and application of Article 4(2) TEU through reference to these evolving national identities. This potential raises significant challenges for the EU regarding the management of Article 4(2) TEU, which it will need to address if it wishes to ensure harmonisation and uniformity in the relevant areas.

Essay, The courts martial of the 1916 leaders

This website contains digital images of the 15 courtmartial files of the executed leaders. The originals, released to the public in 2001, are in the custody of The National Archives in London; the images are displayed under licence from TNA. The website has a searchable database relating to the files, which can also be browsed by name. There are also two essays, one by Dr. Fearghal McGarry on the general context of the trials, the other by Dr. Myles Dungan on their dubious legality. These are the basic records of one of the most eventful and fateful processes in modern Irish history.
Purchase of the digital images of these records was made possible by Universities Ireland, the umbrella body which promotes co-operation between all the universities on the Island of Ireland. The purchase forms part of their extensive Decade of Centenaries programme. Further details can be found at http://universitiesireland.ie/

The African National Congress and its Critics: 'Predatory Liberalism', Black Empowerment and Intra-Alliance Tensions in Post-Apartheid South Africa

Post-apartheid South Africa is characterized by centralized, neo-liberal policymaking that perpetuates, and in some cases exaggerates, socio-economic inequalities inherited from the apartheid era. The African National Congress (ANC) leadership’s alignment with powerful international and domestic market actors produces tensions within the Tripartite Alliance and between government and civil society. Consequently, several characteristics of ‘predatory liberalism’ are evident in contemporary South Africa: neo-liberal restructuring of the economy is combined with an increasing willingness by government to assert its authority, to marginalize and delegitimize those critical of its abandonment of inclusive governance. A new form of oligarch power, combining entrenched economic interests with those of a new ‘black bourgeoisie’ promoted by narrowly implemented Black Economic Empowerment policies, diminishes prospects for broad-based socio-economic transformation. Because the new policy environment is failing to resolve tensions between global market demands for increasing market liberalization and domestic popular demands for poverty-alleviation and socio-economic transformation, the ANC leadership is forced increasingly to confront ‘ultra-leftists’ who are challenging its credentials as defender of the National Democratic Revolution which was the cornerstone in the anti-apartheid struggle.