For centuries, private international law has been used to address legal problems generated by interactions among legal systems. It deals with problems that arise when transactions or legal claims involve a foreign element. Private international law issues are most frequent in settings that allow for the growth of international relationships or activities with transnational implications. Economic integration provides this setting: it compels interaction among multiple legal systems; allows for the free movement of persons, goods, services and capital across national boundaries; and fosters the intensification of transnational economic activity. These circumstances generate problems that private international law can help to resolve. Accordingly, a developed private international law regime is an indispensable part of economic integration. Private international law impacts on the free movement of persons, goods, services and capital. It affects economic transactions within a community and, therefore, merits attention in any economic integration process. An economic community does not, and cannot, function solely on the basis of substantive rules. The procedural rules for resolving issues arising in cross-border transactions are equally important. These rules may be useful in dispute settlement at both the community and national levels. In other words, true integration should aim not only at the removal of barriers to the movement of persons, goods, services and capital, but also the strengthening of the legal infrastructure for settling cross-border disputes. A developed private international law regime is a key aspect of this infrastructure.

Africa is awash with regional economic communities (RECs). Indeed, as far back as 1976, Ajomo picturesquely described the ‘mercurial proliferation and disappearance’ of regional economic institutions in Africa. For political, economic and strategic reasons, many countries belong to more than one REC. The multiplicity of RECs and the concomitant multiple state memberships have created a complex patchwork that complicates decision-making for states, community officials, individuals and businesses. In what is, to date, the only detailed, continent-wide empirical study into the effect of the twin phenomena of many RECs and multiple memberships, the United Nations Economic Commission for Africa (UNECA) concluded that the phenomena impact negatively on the achievement of the goals of the African Economic Community (AEC). In June 2009, some member states – Kenya and Uganda – could not join the newly formed COMESA customs union as they belonged to the EAC customs union. The phenomena also impact negatively on Africa's international trade relations. In the recent EU-led Economic Partnership Agreements negotiations, countries in Eastern and Southern Africa – the regions where the phenomena are most prevalent – had to form new regional groupings for the purposes of the negotiations.

An integral part of any legal system, and a key to its effectiveness, are the enforcement mechanisms provided to ensure compliance with its laws. In the context of economic integration, enforcement mechanisms are avenues through which community and national legal systems are linked. Enforcement of community law strengthens a community's legal system, at both community and national levels. It allows individuals to benefit from the integration process. This enhances the legitimacy of the community legal system, creates a national constituency with interest in community law and provides a focal point of interaction between national and community legal systems. Enforcement of community law occurs at both national and community levels. Indeed, unless there is effective enforcement at both levels, and a high level of coordination between them, community law will become ineffective. Put differently, a disjunction will be created between community and national legal systems, and the effectiveness of the community will be undermined. An essential feature of an enforcement mechanism that is likely to ensure the effective implementation of community law is its ability to take advantage of pre-existing law-enforcement regimes in member states. As Shaw has observed, ‘it is precisely because of the inadequate enforcement facilities that lie at the disposal of international law [community law] that one must consider the relationship with municipal law as more than of marginal importance’. Accordingly, proper relations between a community and pre-existing national law-enforcement institutions or mechanisms are important for community law's effectiveness. In the preceding chapter, we discussed how trilateral relations between individuals and courts at the national level and community courts can enhance the work of the latter. This chapter examines the extent to which this idea is reflected in the design of institutions responsible for the enforcement of the laws of the African Economic Community.

This book set out to examine how relational issues of law in economic integration are being approached in Africa. At their core, relational issues deal with the legal interactions among community, national, regional and international legal systems within the context of economic integration. The theory was that effective economic integration is the product of properly structuring and managing, within well-defined legal frameworks, vertical, horizontal and vertico-horizontal relations among states, legal systems, laws and institutions. Put differently, an economic community must have well-structured and well-managed relations between itself and other legal systems as a necessary condition for its effectiveness.

Convergence and divergence: criminal punishment in contemporary democracies

Presently, imprisonment rates in the oldest of modern democracies, the United States are at historically high levels, and by far exceed those in other democracies. Imprisonment rates in the USA are affecting the social fabric of neighbourhoods and communities, and even impact on democratic elections in a way that changes their results (Manza and Uggen 2006). Even if this has often been seen as a case of ‘American exceptionalism’, as the exceptional scope and velocity of the increase of imprisonment rates in the USA was not matched in other Western democracies, it raises the question whether democratic societies are particularly susceptible to ‘penal excess’, which might endanger the very mechanisms of rule, law and justice on which democracies are founded. The exceptional rise of imprisonment rates in the USA took place against the backdrop of a less distinct increase in Canada (Webster and Doob in this volume; Tonry 2004), and most Western as well as Eastern European countries. The trend toward decreasing imprisonment rates that had defined the early decades of the second half of the twentieth century was reversed latest in the 1980s (see Tonry 2004; Tonry and Farrington 2005; Lacey 2008; Lappi-Seppälä 2008).

Introduction

The entry into force of the Rome Statute, on 1 July 2002, has been heralded by many observers as the final start of a new era, the era of international justice. The importance of the International Criminal Court (ICC) can indeed hardly be overstated. It is the first permanent international court in the world's history that is competent to judge individuals for having committed crimes in various parts of the globe. Some go even further and see it as the ultimate panacea that will not only react to crimes but also deter future crimes, promote reconciliation between former enemies and bring peace to the world. Both perspectives strongly rely on the ICC, and international criminal justice as a whole, as a new form of governance.

Notwithstanding the importance of the ICC and other institutions of criminal justice, some cautionary remarks seem warranted. First of all, the creation of the ICC is the result of a lengthy process that was far from linear, but was instead fraught with piecemeal changes and huge leaps, full of strange coincidences and even stranger alliances. This long and curving road to The Hague has displayed little coherence, let alone convergence, and it remains to be seen if and how convergence may come about.

In retrospect, it seems surprising that it had attracted so little attention before. It is hardly news – it was hardly news when Durkheim considered the matter at the end of the nineteenth century – that punishment and ideas about punishment vary between different societies, and that these variations can be related to larger social and political differences. Several theorists had postulated or investigated a possible connection (some kind of inverse relationship) between a society's welfare provision and the severity of its punishments (see for example Greenberg1999; Downes and Hansen 2006; Beckett and Western 2001). Certainly, some had spotted a link between the advance of neoliberalism in the United States and the spectacular rise in US punishment levels from the early 1970s onwards (e.g. Downes 2001). And some had made use or mention of Esping-Andersen's (1990) typology of modern capitalist welfare states in the penal context (Kilcommins et al. 2004: Chapter 7; Beckett and Western 2001). But we flatter ourselves that our 2006 work Penal Systems: A Comparative Approach (Cavadino and Dignan 2006) demonstrated just how illuminating was the Esping-Andersen schema when applied to comparative penology.

To recapitulate briefly: Esping-Andersen delineated three types of contemporary capitalist political economy: the free-market neoliberal polity (exemplified archetypally by the United States of America); the more communitarian conservative corporatism (exemplified by Germany) and the social democratic corporatism found in the Nordic countries (the prime example being Sweden). To these we added what we call the oriental corporatism of Japan.

Since 2005 the Grand Chamber of the European Court of Human Rights (ECtHR) has given a series of ground-breaking judgments in which it has addressed the difficult question of the purpose of imprisonment while seeking to resolve complex practical issues, such as prisoners' rights to vote, artificial insemination by prisoners and the acceptability of whole life sentences. This chapter analyses some of these judgments closely. It points out that, while the judges often come to radical conclusions, they sometimes attempt to soften the blow by allowing states a margin of appreciation in instances where it is arguably inappropriate to do so. The chapter reflects on whether this is merely a short-term political strategy or whether this approach may undermine the considerable potential of the Grand Chamber to set a conceptual framework for prison law and policy applicable throughout Europe. It does so by considering the impact of these judgments on the penal reform process in England and Wales.

Introduction

It is the point of departure of this chapter – one that is regarded as obvious by human rights lawyers (who sometimes exaggerate its significance) – that courts applying general human rights standards can shape penal policy in crucial ways. Social scientists conversely, often do not pay sufficient attention to the subtleties of the judicial development of penal values, but they are more sensitive to the difference between the pronouncements of the courts and actual changes to penal policies and practices.