Hague Journal on the Rule of Law最新文献

Multilateral development banks (MDBs) are accorded immunities and privileges as agents of their member states as justified by functionalist arguments. They are also operationally hybrid: they are actors in their own right in addition to being functional agents. Navigating the functionalist imagery and relying on the argument that they are delegated purely economic pursuits (i.e. financing economic development), MDBs are able to eschew accountability to rights-holders that are affected by their decisions and operations. Although administrative law approaches have succeeded in increasing transparency, instilling self-regulatory frameworks and providing for independent review, the absence of external oversight of such review mechanisms and the broad immunities to suit enjoyed by MDBs have impeded true accountability to rights-holders. This article argues that, in so far as they engage in private sector financing operations, MDBs and their constituent arms share the form, function and relationships of an economic corporation to a large extent. Consequently, their immunities should be limited to render them bound—like ordinary corporations- by the domestic norms with respect to rule of law and human rights of the home and host countries in which they operate in order to make them accountable to rights-holders and to provide recourse for wrongdoings.

In their article ‘Striking Back’ and ‘Clamping down’: An Alternative Perspective on Judicial Review, Carol Harlow and Richard Rawlings consider the ways in which an executive may respond to judicial decisions which find against it. They organize such responses or ‘tactics’ into ‘striking back’ according to which the executive attempts to nullify the effect of the judgment, and ‘clamping down’ in terms of which the government attempts to prevent future adverse judgments. Harlow and Rawlings consider such tactics in the context of the United Kingdom and find that there has not been a significant change in tactics in the country’s transition from a system of pure parliamentary sovereignty to one influenced by European law and the Human Rights Act 1998. In this paper I consider the practices of ‘striking back’ and ‘clamping down’, identified by Harlow and Rawlings, in the context of South Africa. I pose the question whether there has been a change of tactics in South Africa moving from a system of parliamentary sovereignty to one of constitutional supremacy. I also consider how effective these tactics have been under each system. My finding is that there has been a significant change in tactics in South Africa, as the Constitution has placed restraints on the tactics available to the government in striking back and clamping down, leading the government to resort to more extreme measures which in turn threaten South Africa’s constitutional democracy.

The assumption that the Rule of law is inherently ready for instrumentalization is assessed through an enquiry into the notion of abuse, on the one side, and of the rule of law on the other. This article addresses the problem of abuse, trying to identify its characteristics and to define its consequences. In order to do so, a line is followed from the different sets of rules that can regulate an institutional ‘practice’ like the rule of law to the consideration of the ends that would better qualify that practice. Among the objectives of this article is to stress the possibility and importance of adopting legal means against abuse, not only relying on political action.