Scholar Highlights

Resende, Ranieri L. 2023. “Precedent of the Inter-American Court of Human Rights: State Compliance and Judicial Performance in Brazil, Colombia, Argentina, Chile, and Bolivia”, Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper Series, No. 2023-02. DOI: https://dx.doi.org/10.2139/ssrn.4328668

Considering the external effects of adjudicative activity of the Inter-American Court of Human Rights, structural questions emerge regarding the influence of IACtHR precedent in judicial branches of the States Parties to the American Convention on Human Rights. In this sense, this chapter seeks to apply the theoretical typologies developed by Ryan Goodman and Derek Jinks to the analysis of operative mechanisms of influence of international law inside the Member States’ jurisdictions. In this regard, it was necessary to create new specific categories (e.g., acculturative persuasive precedent, selective persuasive precedent), to test whether they suitably describe the application of Inter-American precedents, in an attempt to categorize the recent performance of the highest courts in Brazil, Colombia, Argentina, Chile, and Bolivia. Additionally, the concept of double control of conventionality has presented essential perspectives for the compliance with IACtHR judgments by demanding States, as well as the interpretation and application of national laws deemed compatible, or not, with the Pact of San José. In the end, quantitative analysis played an important role in measuring each national court’s assimilation of international precedents as it outlined scenarios of explicit adoption of Inter-American Court precedent by national judicial branches. Sampled States were classified as follows: a) Brazil: selective persuasive IACtHR precedent with low performance; b) Colombia: acculturative persuasive IACtHR precedent with high performance; c) Argentina: selective persuasive IACtHR precedent with moderate performance; d) Chile: selective persuasive IACtHR precedent with high performance; and e) Bolivia: acculturative persuasive IACtHR precedent with moderate performance. 

Mihreteab Tsighe Taye. 2023. “Backlash against Individual Access to the African Court on Human and Peoples’ Rights.” Open Global Rights. https://www.openglobalrights.org/backlash-against-individual-access-african-court-human-peoples-rights/

Lucrecia García Iommi and Richard W. Mass. 2022. The United States and International Law: Paradoxes of Support Across Contemporary Issues. University of Michigan Press. https://www.press.umich.edu/11448925/united_states_and_international_law

The United States spearheaded the creation of many international organizations and treaties after World War II and maintains a strong record of compliance across several issue areas, yet it also refuses to ratify major international conventions like the UN Convention on the Law of the Sea and the Convention on the Elimination of All Forms of Discrimination Against Women. Why does the U.S. often seem to support international law in one way while neglecting or even violating it in another?

The United States and International Law: Paradoxes of Support across Contemporary Issues analyzes the seemingly inconsistent U.S. relationship with international law by identifying five types of state support for international law: leadership, consent, internalization, compliance, and enforcement. Each follows different logics and entails unique costs and incentives. Accordingly, the fact that a state engages in one form of support does not presuppose that it will do so across the board. This volume examines how and why the U.S. has engaged in each form of support across twelve issue areas that are central to 20th- and 21st-century U.S. foreign policy: conquest, world courts, war, nuclear proliferation, trade, human rights, war crimes, torture, targeted killing, maritime law, the environment, and cybersecurity. In addition to offering rich substantive discussions of U.S. foreign policy, their findings reveal patterns across the U.S. relationship with international law that shed light on behavior that often seems paradoxical at best, hypocritical at worst. The results help us understand why the United States engages with international law as it does, the legacies of the Trump administration, and what we should expect from the United States under the Biden administration and beyond.

Alison Dundes Renteln and Cher Weixia Chen. 2022. International Human Rights: A Survey. Cambridge: Cambridge University Press.  
https://www.cambridge.org/highereducation/books/international-human-rights/1EAF868C5BB23D6E197A63208FE0B260#overview

This book provides an interdisciplinary overview of international human rights issues, offering truly international coverage including the Global South. Considering the philosophical foundations of human rights, Chen and Renteln explore the interpretive difficulties associated with identifying what constitute human rights abuses, and evaluate various perspectives on human rights. This book goes on to analyze institutions that strive to promote and enforce human rights standards, including the United Nations system, regional human rights bodies, and domestic courts. It also discusses a wide variety of substantive human rights including genocide, torture, capital punishment, and other cruel and unusual punishments. In particular, the book offers an accessible introduction to key understudied topics within human rights, such as socioeconomic rights, cultural rights, and environmental rights. It also focuses on the rights of marginalized groups, including children’s rights, rights of persons with disabilities, women’s rights, labor rights, indigenous rights, and LGBTQ+ rights, making this an engaging and invaluable resource for the contemporary student.

Pavone, Tommaso. (2022). The Ghostwriters: Lawyers and the Politics behind the Judicial Construction of Europe (Cambridge Studies in Law and Society). Cambridge: Cambridge University Press. doi:10.1017/9781009076326

The European Union is often depicted as a cradle of judicial activism and a polity built by courts. Tommaso Pavone shows how this judge-centric narrative conceals a crucial arena for political action. Beneath the radar, Europe’s political development unfolded as a struggle between judges who resisted European law and lawyers who pushed them to embrace change. Under the sheepskin of rights-conscious litigants and activist courts, these “Euro-lawyers” sought clients willing to break state laws conflicting with European law, lobbied national judges to uphold European rules, and propelled them to submit noncompliance cases to the European Union’s supreme court – the European Court of Justice – by ghostwriting their referrals. By shadowing lawyers who encourage deliberate law-breaking and mobilize courts against their own governments, The Ghostwriters overturns the conventional wisdom regarding the judicial construction of Europe and illuminates how the politics of lawyers can profoundly impact institutional change and transnational governance.

Lane Scheppele, Kim. 2022. “How Orbán Wins.”   33 Journal of Democracy 45-61 (July 2022) at https://www.journalofdemocracy.org/articles/how-viktor-orban-wins/ .

Lane Scheppele, Kim. 2022. “The Law Requires Translation:  The Hungarian Preliminary Reference on Preliminary References.”  59 Common Market Law Review 1007-1136 (August 2022) at https://kluwerlawonline.com/journalarticle/Common+Market+Law+Review/59.4/COLA2022074

Resende, Ranieri L. “Impeachment: A Mechanism between Political Accountability and Legal Responsibility? Common Law Sources and the Brazilian Originalist Model”, Global Journal of Comparative Law 11, 2 (2022): 222-253. https://doi.org/10.1163/2211906X-11020003.

This paper seeks to analyze impeachment as a mechanism of institutional control of political actors, searching for its historical and theoretical bases in common law, so as to uncover the sources of the Brazilian originalist model. The Brazilian model deserves special attention due to its highly distinct, descriptive constitutional hypotheses. Before attempting to define the nature of impeachment, the main objective was to place the general idea of responsibility within the theoretical scope of representative democracy, accounting for potential failures resulting in frustration of expectations of constituencies and/or abuse of power by representatives. While identifying structural distinctions between political accountability and legal responsibility, it was appropriate to bring forth the requirement of legal violation in classical Athenian precedents (eisangeliai). In the end, this analysis goes over historical mutations of the impeachment mechanism: a) establishment of procedural parameters (British first cases); b) inceptive prerequisite of legal violation (Stuart period); c) attemptable specification of appropriate legal hypotheses (US); d) constitutional provision of precise categories of legal violation (Brazil).

De Micheli, David., & Taylor, Whitney K. (2022). Public Trust in Latin America’s Courts: Do Institutions Matter? Government and Opposition, 1-22. doi:10.1017/gov.2022.6

Despite the integral role of the judiciary to democracy, and the importance of judicial trust for judicial system performance, we know relatively little about the bases of public trust in this institution. How does institutional quality affect judicial trust? We explore this question in the context of Latin America, using a multilevel data set comprising survey data spanning 2001 to 2016 and country-level institutional and economic factors. We find that the effects of institutional quality on judicial trust are highly circumscribed. Factors like rule of law and corruption impact the judicial trust of only the best-educated survey respondents. Among the broader public, however, judicial trust is shaped more strongly by individuals’ subjective economic and regime evaluations, as well as one’s personal experiences with the judiciary.

Mitchell, Sara, & Owsiak, Andrew. (2021). Judicialization of the Sea: Bargaining in the Shadow of UNCLOS. American Journal of International Law, 115(4), 579-621. doi:10.1017/ajil.2021.26

Powell, Emilia J., & Mitchell, Sara M. 2021. “Forum Shopping for the Best Adjudicator: Dispute Settlement in the United Nations Convention on the Law of the Sea.” Journal of Territorial and Maritime Studies 9 (1): 7- 33.

Purpose—This study analyzes how countries’ domestic legal traditions influence their selection of dispute settlement procedures under Article 287 (ITLOS, ICJ, Annex VII/VIII arbitration) of the 1982 UNCLOS treaty. The theory suggests that common law countries are supportive of UNCLOS generally and amenable to multiple forums of Article 287 dispute settlement. Civil law countries prefer the ICJ as a dispute settlement forum, while Islamic law states prefer arbitration approaches under Article 287.

Design, Methodology, Approach—The authors use descriptive statistics and logit models to analyze decisions by all 194 countries to (1) sign (92%) or ratify (84.5%) UNCLOS and (2) make an optional Article 287 declaration (29% of States Parties).

Findings—The results show that states’ domestic legal traditions have a strong influence on states’ preferred dispute resolution forum(s) in the UNCLOS regime. Common law coun- tries are supportive of UNCLOS generally and many of the dispute resolution forums avail- able in Article 287. Civil law countries choose the ICJ most often under Article 287, while Islamic law states prefer Annex VII/VIII arbitration.

Practical Implications—Domestic law provides clues about how countries will sup- port international institutions and identifies which states are most amenable to out of court bargaining.

Mehmood, Sultan. (Forthcoming 2022). The impact of Presidential appointment of judges: Montesquieu or the Federalists? American Economic Journal.

A central question in development economics is whether there are adequate checks and
balances on the executive. This paper provides causal evidence on how increasing constraints on the executive –via removal of Presidential discretion in judicial appointments– promotes rule of law. The age structure of judges at the time of the reform and the mandatory retirement age law provides us with an exogenous source of variation in the termination of Presidential discretion in judicial appointments. Overall, the results indicate that Presidential appointment of judges deteriorates rule of law.