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Maral Javidbakht, Autonomous Ships and Flag State Attribution and Responsibility
This chapter explores when shipmaster conduct triggers Flag State responsibility. While individual acts are not attributable to States, exceptions arise from special State-individual relationships. Influenced by the shipmaster’s traditional role as agent and navigator, the modern role includes a range of internationally codified duties. If stemming from Flag State obligations, the shipmaster fulfills them, supported by two ARSIWA exceptions to non-attributability: (1) when individuals act under State control; (2) when the State fails to prevent conduct. Flag State responsibility for shipmasters’ conduct evolves in rescue violations. It arises when States fail to ensure shipmasters assist persons in distress where reasonably possible without endangering lives onboard, or when rescued persons face treatment violating international refugee law, including human rights law. This chapter re-assesses Flag State responsibility by examining whether shipmasters’ conduct is attributable based on their humanity or presence onboard. It also evaluates when private conduct is attributable to the Flag State, based on (1) organ/agent status under ARSIWA and (2) the State’s due diligence in preventing unlawful acts. Attributability depends on vessel ownership, breached obligations, and the State’s role in prevention. The chapter expands ARSIWA attribution analysis to autonomous ship operations, where shipmasters are absent or replaced by decision-making artificial intelligence.
The chapter analyses how the climate change action plan developed by the European Central Bank (ECB) as part of its monetary policy strategy review in 2020-2021 is aligned with the ECB’s mandate set out in the Treaty on the Functioning of the European Union and the Treaty on European Union. The Treaties require the ECB to integrate climate change considerations into its monetary policy and to contribute to the EU’s objectives regarding climate change, as established by Regulation (EU) 2021/1119, the European Climate Law. However, there are also legal limits on the action the ECB can take in this field. The chapter examines the key measures proposed as part of the plan from a legal perspective, including measures related to macroeconomic forecasts and models, the collection of statistical information for climate change risk analysis, the enhancement of risk assessment capabilities, asset purchase programmes, and possible changes to the collateral framework. It also considers the questions regarding the ECB’s democratic legitimacy and accountability that arise in this context.
The hypothesis at the outset of this contribution is that the position of central banks as independent non-majoritarian institutions needs to be reconsidered to the extent that they actively engage in climate change mitigation activities. It is argued that greening monetary policy calls for a reassessment of the democratic legitimacy of central banks, where the constitutional position of central banks has been informed by the model of the conservative independent central banker and justified by the specificity of their mandate and the vulnerability of monetary policy to political tempering. This also applies to the European Central Bank, whereby the question arises whether climate change mitigation should be delegated to independent central banks in the first place and, if so, what the challenges are in securing their democratic legitimacy for engaging in such activities. It is argued that a clear task must be left for the democratic institutions to take the necessary political decisions and to undertake the necessary balancing of interests in making the distributional choices necessary to effectively address climate change. The latter must not be left to non-majoritarian institutions.
This chapter summarizes the book’s main findings and discusses five major contributions to the study of transitional justice (TJ) as a powerful force to prevent criminal wars in new democracies: (1) the importance of conceptualizing organized crime as a hybrid field of state–criminal networks, where state specialists in violence play a central role; (2) TJ’s power to influence peace and war in the criminal underworld by exposing and sanctioning state specialists in violence; (3) the crucial role of state accountability for the development of peaceful democracies; (4) the importance of dismantling violent counterinsurgent states by means of justice before electoral competition becomes routinized in new democracies; and (5) the dangers that the survival of the counterinsurgent state and its militarized public security practices, and the persistence of criminal wars, pose for the integrity of democratic regimes. The book ends with a reflection on Third Wave democracies. In the mid 1980s, scholars of democratization warned elites and societies to renounce (or at least postpone) demands for accountability for past atrocities to avoid a military backlash that would compromise democratic stability. Accountability Shock draws a different conclusion: Failure to address a repressive past paves the way for a future of democratic instability, large-scale violence, and gross human rights violations.
This chapter develops the theoretical explanation of why transitional justice processes and the reckoning of a repressive history can prevent the outbreak of large-scale criminal violence in new democracies. It first discusses a new conception of organized crime where complicit state specialists in violence are central players in illicit economies and in the production of large-scale criminal violence. It suggests that these engagements often emerge in autocracies, where autocrats allow military and police forces to capitalize on their repressive power to kill political dissidents and on their de facto impunity to control the criminal underworld. If left unaccountable, authoritarian specialists in violence can become leading actors in the production of criminal violence in democracy by defecting to fight turf wars or defending organized criminal groups from positions of power or spearheading Wars on Drugs, Gangs, or Crime. It claims that when new democratic elites expose and sanction authoritarian specialists in violence through robust truth commissions and criminal trials, they unleash a powerful accountability shock that breaks state impunity and deters security forces from using state coercive power to control illicit economies through lethal force. Failure to reckon with a repressive history, and the survival of the violent state, sets new democracies on trajectories of power abuse and criminal wars.
This chapter uses the Latin American case studies presented in the previous chapters to identify general cross-national patterns and historically ground the theory and statistical findings about transitional justice’s (TJ) violence prevention effect. It first shows that during the Cold War all six countries developed counterinsurgent states with striking similarities under autocracy. In all cases, authoritarian specialists in violence capitalized on their power to kill with impunity to dominate the criminal underworld. It then discusses how TJ was a fork in the road. The adoption of robust TJ processes, combining strong truth commissions and criminal prosecution of perpetrators, allowed Argentina, Peru, and Guatemala to dismantle counterinsurgent states, preventing criminal wars and reducing violence and gross human rights violations. But the persistence of state impunity and the survival of the counterinsurgent state led to Wars on Drugs or Gangs or Crime and to turf wars that resulted in mass atrocities in Mexico, El Salvador, and Brazil. The final section discusses how in cases with robust TJ the institutionalization of accountability policies can contribute to the development of self-sustaining peaceful democracies, and how a reformulated TJ toolkit can serve democracies with persistent impunity, trapped in deadly criminal wars, enter into paths of peaceful reconstruction.
This chapter introduces the questions and puzzles that drive the book’s research, outlines the theoretical argument, explains the research design and multimethod approach, and summarizes the main empirical findings. By examining the contrasting experiences of post-authoritarian development in Mexico and Peru, it establishes two paths that Third Wave democracies followed: criminal wars and large-scale criminal violence or relatively peaceful development. Existing explanations focusing on poverty and inequality, state capacity, and history of political instability, predict that Peru would experience significant violence in democracy while Mexico would follow a path of relatively peaceful development. Yet by adopting an ambitious transitional justice (TJ) process to reckon with its repressive history, Peru prevented the outbreak of large-scale criminal violence and criminal wars while Mexico did not. The chapter presents the building blocks of the theoretical explanation. It discusses why we need a new definition of organized crime and large-scale criminal violence that places violent states and authoritarian specialists in violence at the center. It then explains why developing peaceful democracies requires dismantling the violent state and why TJ mechanisms are uniquely suited to this task. It concludes with a discussion of the multimethod strategy for theory-testing and the findings and their implications for the study of peaceful democracies.
Risk regulation has increasingly expanded in European digital policy, yet it is diverging from its roots, especially the precautionary principle. Rather than traditionally focusing on scientific evidence and knowledge, the European approach to risk regulation has been increasingly based on constitutional values such as the protection of fundamental rights and democracy. This article seeks to unravel the logic that has led the Union to move from an approach to risk more based on science to a model which considers constitutional values as parameters to assess and mitigate risks. By focusing on European digital regulation, primarily the GDPR, the DSA and the AI Act, this work underlines how the constitutional rationale of this transformation comes as a response to the intangibility of risks resulting from digital technologies and to imbalances of information and knowledge coming from the concentration of private power in the digital ecosystem. The primary argument is that risk regulation in European digital policy does not seek to rationalise uncertainty through science but to govern epistemological uncertainty through the instruments of constitutionalism, with the goal of addressing the impact of digital technologies on fundamental rights and imbalances of power.
Accountability Shock presents the first systematic explanation of why some 'Third Wave' democracies developed peacefully while others became the world's most violent. The book demonstrates how robust transitional justice processes – combining truth commissions with prosecution of autocratic-era atrocities – prevent criminal violence in new democracies. By holding authoritarian specialists in violence accountable, new democracies can break state impunity, preventing them from becoming key actors in the production of large-scale criminal violence and reshaping the logic of state coercion in democracy. With in-depth analyses of six Latin American cases, the work illuminates why transitional justice is crucial for addressing state-criminal collusion in hybrid contexts. Forged out of a close collaboration between transitional justice scholars and practitioners, Accountability Shock strengthens existing connections while offering practical insights for countries still grappling with authoritarian legacies and violence.
Do voters take into account the deaths of family members and close friends when evaluating the government’s response to the COVID-19 pandemic—particularly when that response is problematic or even negligent—as in the case of Mexico under the Andrés Manuel López Obrador (AMLO) administration? Using data from the 2021 Mexican Election Study, this research shows that opposition partisans who lost close friends or relatives to COVID-19 are more likely to evaluate the government’s response to the pandemic negatively. In contrast, National Regeneration Movement (MORENA) partisans do not hold accountable their co-partisan government. They are no more likely to evaluate the government’s response negatively, even when they experience the same losses. Experimental evidence further shows that MORENA partisans do not lower their evaluations of government performance after being informed about the country’s high COVID-19 mortality. They are also more likely to underestimate the number of COVID-19 deaths in the country, even after being presented with official mortality figures. These findings underscore how partisanship can cloud accountability, leading some voters to dismiss objective information and to judge government performance primarily through the lens of partisan loyalty. Partisanship can distort the accountability mechanism at the core of retrospective voting even during a major health crisis.
Chapter 6 addresses the second theme outlined in the introduction. It first analyses whether the capacity to impose discipline as an organizational requirement for the status of party to an armed conflict implicitly presupposes the capacity to impose penal sanctions over members of the armed group. Moreover, it discusses to what extent an obligation to punish conduct with penal sanctions can be derived from the doctrine of command responsibility under ICL and whether the customary law duty to prosecute and punish war crimes, as applicable to states, can be extended to armed groups. The chapter argues that while courts and penal sanctions administered by armed groups might be a legitimate way to ensure respect for IHL and to avoid individual criminal responsibility on the basis of command responsibility, this conclusion does not translate into a positive obligation of armed groups as a collective to employ penal sanctions, let alone to set up judicial institutions. This conclusion notwithstanding, the chapter points out that there is increasing state practice requiring armed groups to ensure accountability within their ranks.
The use of amnesties in transitional justice remains a contentious issue. The fight against impunity at the international level has left little room for the application of amnesties for international crimes and human rights abuses. Nevertheless, amnesty measures continue to be applied in many jurisdictions and the permissibility of conditional amnesties enacted as part of wider processes of reconciliation remains under debate. This paper argues that the judicial discussion of amnesties under international law has followed dynamics of path dependence, where initial decisions adopted in very specific contexts have strongly determined the subsequent treatment of amnesties in completely different situations. The influence of early decisions rejecting blanket amnesties in the aftermath of autocratic regimes in Latin America pulled domestic and international courts towards a general rejection of amnesties. However, in more recent years, transitional justice ideas have influenced the trajectory of the discussion on amnesties, opening courts to the permissibility of conditional and negotiated amnesties accompanied by alternative mechanisms of accountability. Mapping the judicial dialogue on amnesties, this paper shows a cautious shift in the approach to conditional amnesties. This is significant because international courts have mostly engaged with the most problematic amnesties, leaving some uncertainty around the way conditional amnesties enacted as part of complex transitional frameworks will be evaluated. Reading a significant number of decisions from different jurisdictions, this essay aims to shed some light on the way domestic courts have addressed the discussion of amnesties when they are part of wider efforts to bring peace, reconciliation, and democracy.
Sustainability matters increasingly affect and concern central banks around the globe, while the perception of what they are legally empowered to do may differ depending on the jurisdiction at hand. This volume systematically assesses the role of central banks in matters of sustainability from different perspectives in academia and central banking practice – some more favourable of a proactive engagement of central banks in sustainability policies, others more critical and vigilant of legal and legitimacy boundaries of such engagement. The methodological approaches the authors deploy include legal-doctrinal analysis, qualitative empirical analysis, and economic theory. The essays together provide a balanced assessment of the role central banks can and should play in sustainability matters, addressing legal aspects, legitimacy concerns, and concerns of interinstitutional balance as well as economic and operational considerations. The book covers both developed and developing economies, where central banks are already facing the dire consequences of the warming climate.
Military decision-making institutions face new challenges and opportunities from increasing artificial intelligence (AI) integration. Military AI adoption is incentivized by competitive pressures and expanding national security needs; thus, we can expect increased complexity due to AI proliferation. Governing this complexity is urgent but lacks clear precedents. This discussion critically re-examines key concerns that AI integration into resort-to-force decision-making organizations introduces. Beside concerns, this article draws attention to new, positive affordances that AI proliferation may introduce. I then propose a minimal AI governance standard framework, adapting private sector insights to the defence context. I argue that adopting AI governance standards (e.g., based on this framework) can foster an organizational culture of accountability, combining technical know-how with the cultivated judgment needed to navigate contested governance concepts. Finally, I hypothesize some strategic implications of the adoption of AI governance programmes by military institutions.
This study examines if prime minister's parties are punished or rewarded by voters to a lesser extent in candidate‐centred electoral systems compared to party‐centred systems. Candidate‐centred systems allow the voters greater choice in determining the fate of individual candidates at the district level and create incentives for candidates to cultivate a personal vote rather than pursuing a party vote. Voters in these systems are more likely to focus on individual candidates than on parties, thus fostering individual accountability at the expense of collective (party) accountability. Cross‐sectional time‐series data for 23 OECD countries between 1961 and 2014 were analysed. Two indices of intraparty efficiency (the Farrell–McAllister Index and the Shugart Index) were used to capture the candidate‐centredness of electoral systems. The analysis of aggregate‐level data with almost 300 observations showed that incumbent parties tend to win or lose fewer votes in candidate‐centred electoral systems. This effect has become stronger over time. Candidate‐centredness has a weak moderating impact on the state of the economy on the degree of public sanctioning of government parties.
Despite some prominent critics, deliberative democrats tend to be optimistic about the potential of deliberative mini‐publics. However, the problem with current practices is that mini‐publics are typically used by officials on an ad hoc basis and that their policy impacts remain vague. Mini‐publics seem especially hard to integrate into representative decision making. There are a number of reasons for this, especially prevailing ideas of representation and accountability as well as the contestatory character of representative politics. This article argues that deliberative mini‐publics should be regarded as one possible way of improving the epistemic quality of representative decision making and explores different institutional designs through which deliberative mini‐publics could be better integrated into representative institutions. The article considers arrangements which institutionalise the use of mini‐publics; involve representatives in deliberations; motivate public interactions between mini‐publics and representatives; and provide opportunities to ex post scrutiny or suspensive veto powers for mini‐publics. The article analyses prospects and problems of these measures, and considers their applicability in different contexts of representative politics.
Although federal arrangements adopt a multiplicity of forms across and within federations, this article suggests that some models of power division are better than others at enhancing clarity of responsibility and electoral accountability. This conclusion is the result of exploring responsibility attribution and economic voting in a state where decentralisation arrangements vary across regions: the Spanish State of Autonomies. Using electoral surveys and aggregated economic data for the 1982–2012 period, the empirical analysis shows that regional economic voting is most pronounced in regions where decentralisation design concentrated authority and resources at one level of government, whereas it is inexistent in regions where devolution followed a more intertwined model of power distribution. The implication of the empirical findings is that the specific design of intergovernmental arrangements is crucial to make electoral accountability work in federations.
Voters in rural and peripheral areas have increasingly turned away from mainstream parties and towards right‐wing populist parties. This paper tests the extent to which political decisions with adverse local effects—such as school and hospital closures—can explain this electoral shift. I theorize that political decisions such as these substantiate a perception of a disconnect between “ordinary” people and the politicians in power in day‐to‐day experiences. Using data on 315 school closures and 30 hospital closures in Denmark from 2005 to 2019 in a generalized difference‐in‐differences design, I find that mayors lose about 1.6 percentage points of the valid votes in areas where they close a school. Furthermore, I find that right‐wing populist parties increase their support in both local and national elections when a local school or hospital is closed. These findings provide insight into the electoral consequences of political decisions with adverse local effects and thus contribute to our understanding of the rise of right‐wing populism.
The EU has become increasingly responsible for the state of national economies over the last decades. Meanwhile, many observers have claimed that this increased responsibility has not translated into more accountability. In this article, we revisit this literature and analyse vote‐popularity functions before and after accession because it provides a situation when the EU is an incumbent and when it is not. Using Eurobarometer surveys from 2001 to 2011, which were carried out in the countries that joined the EU in 2004 and 2007, we first show that individuals do not hold the EU accountable for macroeconomic performances before accession, but that they do after accession. Using European Election Studies surveys, we also indicate that the incumbent European Peoples’ Party is held accountable for the state of the economy in countries that are ruled by the EU, but not in countries that have just become EU members.
Citizens' ability to hold corrupt politicians accountable is a key feature of democratic political systems. Particularly in the European Union (EU), such accountability mechanisms are often argued to malfunction due to the EU's complicated and opaque institutional structure, which could compromise voters' basic abilities to detect political malpractice in Brussels. Putting EU voters' attentiveness to the test, we provide quasi‐experimental evidence of the causal effect of a recent corruption scandal in the European Parliament. Leveraging an ‘Unexpected Event during Survey Design’ identification strategy in France and Germany, we document a sizeable negative effect of the so‐called Qatargate scandal on public trust in the European Parliament. This provides causal evidence on the presence of attentiveness to EU politics within these electorates. Given the EU's complex institutional structure, we derive two alternative implications from this finding.