Making International Human Rights Protection More Effective: A Rational-Choice Approach to the Effectiveness of Ius Standi Provisions

Empirical research shows that international human rights law is to a large extent ineffective. Individual complaint mechanisms are the only significantly effective enforcement mechanism. Certainly many variables influence the success of enforcement through judicial or quasi-judicial mechanisms but one important variable are provisions of ius standi as they have a gate-keeping function. International human rights law can be rendered more effective if individual victims have both de jure and de facto access to its remedies. This article analyzes the different incentives provided by complaint mechanisms for individuals, groups or NGOs to make use of international human rights bodies. They are such, that an insufficient enforcement of IHRL can be expected.

Independent electoral management bodies and international election observer missions: any impact on the observed level of democracy? A conceptual framework

What kind of institutions are needed to stabilize and foster democracy? Clearly elections are crucial and much of the institutional and legal surrounding of elections has been subject to research. Two institutional variables have been neglected though, specifically in empirical research: Electoral Management Bodies (EMBs) and International Observer Missions (EOMs). Can EMBs and EOMs foster free and fair elections? If yes, under what conditions? And what kind of competences are needed for them? We hypothesize that both can become crucial institutions for free and fair elections. Whereas independent central banks or audit courts control special issue areas in order to take certain decision out of the realm of politics, EMBs control the moment of the set-up of government—the election, when conflicts of interest of politicians are at its peak. Although other kinds of independent administrative agencies have been the subject of political science and economic research, EMBs and EOMs have also been neglected here. This article undertakes to outline a conceptual framework for testing various hypotheses on the institutional set-up of EMBs. Hypothesizing that deiure and defacto independence of EMBs foster fair elections, the detailed institutional set-up of EMBs as independent variable is outlined in order to test for the level of democracy as a dependent variable. Furthermore, the importance of EOMs as well as their interaction effect with EMBs is analyzed. Although by now EOMs are sent to almost any country with elections, their impact has not been analyzed in an encompassing way in spite of that the mission have intensified in their work, have become more costly and their verdicts are gaining ever more publicit

International investment law and decentralized targeted sanctions: an uneasy relationship

Decentralized smart sanctions are ever more used, e.g. against Russia. This enforcement system in international law may come into conflict with investment protection law (in contrast to UN sanctions). This Perspective explores under what factual circumstances and legal assumptions this may be the case

Effectuating Public International Law Through Market Mechanisms?

Traditionally, the enforcement of Public International Law (PIL) was a task of states: the addressees and the enforcers of PIL were states. That has changed recently. Whereas the influence of private market actors on the making of PIL has been extensively analyzed, the influence of private market actors on the enforcement has been neglected although the idea of using private interests in order to foster social goals has a long history. This article draws on theoretical insights of a rational-choice approach to PIL in order to analyze the prerequisites of effectuating PIL through private market actor incentives and market mechanisms

Perils of Success? The Case of International Investment Protection

Foreign direct investment forms an ever more important part of globalised market structures, and international investment law has become one of the most successful and judicialised areas of public international law. In order to attract investment, States commit themselves to treaties that restrict their regulatory sovereignty in ways that are sometimes unpredictable, owing to vague terms in the treaties and the broad use by investment tribunals of their delegated discretion. This article uses economic contract theory in order to understand whether the commitment problem ex ante and the flexibility problem ex post are optimally solved. It is hypothesised that the participation constraints on States may be overlooked by investment tribunals, thereby leading to an undesired weakening of protection of investors in the long run due to reactions by States. First, States may opt out of the system, for example by exiting treaties or by non-compliance. Second, they may also water down the substantive or procedural protections. Third, whereas investment treaties were seen in the beginning as a restraint on developing countries, investment increasingly flows to equally highly regulated developed countries. As legal protection is reciprocal but the capital flows used to be unilateral, developed countries might also react to their restriction of sovereignty, as the United States has already done, for example. These perils could lead to a backlash in international investment protection of which indications are already visibl

Effectuating Public International Law Through Market Mechanisms?

Traditionally, the enforcement of Public International Law (PIL) was a task of states: the addressees and the enforcers of PIL were states. That has changed recently. Whereas the influence of private market actors on the making of PIL has been extensively analyzed, the influence of private market actors on the enforcement has been neglected although the idea of using private interests in order to foster social goals has a long history. This article draws on theoretical insights of a rational-choice approach to PIL in order to analyze the prerequisites of effectuating PIL through private market actor incentives and market mechanisms

Power over Prosecutors Corrupts Politicians: Cross Country Evidence Using a New Indicator

It is hypothesized that prosecution agencies that are dependent on the executive have less incentives to prosecute crimes committed by government members which, in turn, increases their incentives to commit such crimes. Here, this hypothesis is put to an empirical test focusing on a particular kind of crime, namely corruption. In order to test it, it was necessary to create an indicator measuring de jure as well as de facto independence of the prosecution agencies. The regressions show that de facto independence of prosecution agencies robustly reduces corruption of officials

International investment law and decentralized targeted sanctions: an uneasy relationship

Decentralized smart sanctions are ever more used, e.g. against Russia. This enforcement system in international law may come into conflict with investment protection law (in contrast to UN sanctions). This Perspective explores under what factual circumstances and legal assumptions this may be the case

The Prosecution of Public Figures and the Separation of Powers: Confusion within the Executive Branch

Criminal investigation and prosecution of politicians, top civil servants and other public figures are topics frequently discussed in the media. The nature of the investigating or prosecuting authority varies between countries; from the general public prosecutor, through magistrates to independent counsels or parliamentary investigation commissions. This paper analyzes the role and status of public prosecutors within separation of powers-concept. Prosecutors are usually part of the executive and not the judicial branch, which implies that they do not enjoy the same degree of independence as judges, and are ultimately subordinated to the directives of the minister of justice or the government. Conflicts of interest may hence arise if members of government can use the criminal process for their own or partisan interests. The incentives of public prosecutors in different jurisdictions are compared.Separation of Powers, Public Prosecution, Government Offences, and Positive Constitutional Economics,