Band 14, Heft 3

Although it is common knowledge that judges in different legal systems have different conventions as to how they justify their decisions and some judges are more while others are less willing to articulate their positions, we did not have exact data about these differences in constitutional reasoning. Our research proposed a simple index (JI) to measure the level of judicial individualism. Drawing on the research design of the Conreason project, we used this index to compare the practice of 14 constitutional courts in landmark constitutional cases. In addition, we also measured the level of disagreement (JD) within these 14 courts and by introducing the concept of disagreement factor (DF) we analysed to what extent substantive disagreements contribute to the rise of the number of separate opinions and, hence, to the rise of judicial individualism.

The paper inquires, from a comparative (Canadian-German) and human rights perspective, whether the State’s right (or even obligation) to punish can be derived from the Constitution. It argues that Constitutions usually assume this right but do not explicitly provide, let alone explain it (infra 1). However, protective (affirmative) duties may be derived from the rights part of a constitution (2) and these protective duties may serve as a basis for criminalization (3). While this is the position of the case law (especially the German one) and finds support in human rights law (4), it is argued that the reasoning is not fully convincing (5.1) and therefore further reflections are needed (5). First, it is necessary to make explicit the basic assumptions on the role of constitutions and judges on which the acceptance of a (constitutional) ius puniendi is predicated (5.1). Then, in a second step, the combination of a victim-based and effective remedy reasoning which best supports an obligation or at least ius puniendi is, relying on the German discussion, to be elaborated further (5.2).

In 2014, the United Nations established a working group to elaborate an international treaty on business and human rights. In October 2018, negotiations on a first draft of the actually text took place. Besides this zero-draft, the working group released the draft text of an Optional Protocol containing several institutional arrangements. The Optional Protocol carves out a key role for national implementation mechanisms to promote compliance with, monitor and implement the treaty on business and human rights. With such an institutional arrangement, the future treaty would join the ranks of what can be called a new generation of human right treaties which institutionalize a top down with a bottom up approach aiming to address the disjuncture between rules and practice. The Optional Protocol indicates that this role of national implementation mechanism could be taken up by National Human Rights Institutions (NHRIs). This follows an increased recognition of NHRIs as significant actors in the business and human rights domain. Yet, the role of NHRIs in human rights governance in general, and in the business and human rights field in particular, is not yet well understood and undertheorized. The aim of this article is to add insight into the role of NHRIs in business and human rights by, first, describing some of the current activities undertaken by NHRIs in this field in order to analyze whether the role ascribed to them is actually being taken up and what challenges NHRIs face. From this perspective, it will be discussed whether the role foreseen in the Optional Protocol of the future business and human rights treaty holds promise.

Public procurement of advertising is a matter of constant debate in many countries around the world. At one point in Peru, during 2018, hiring private media outlets to broadcast or publish state advertising was prohibited by law. Taking into account the ensuing controversy in Peru, this study assesses state advertising investment in the South American country, and examines whether certain public entities (government ministries) have complied with the obligations of justification, transparency and prohibitions provided for by the law that regulates state advertising. The findings of this study point to a worrying level of noncompliance. We display these results in a systematized manner and complement them with a qualitative analysis of the justification given by public entities for spending on advertising, as well as the accountability they provide (or should provide) ex-post . This baseline study is essential to identify possible failings in the regulation of public procurement of advertising, as well as the bad practices of the state when budgeting for public expenditure on advertising campaigns. While the case study is based on the Peruvian experience, the findings can be used in many other jurisdictions as a roadmap for avoiding certain shortcomings in the regulation of state advertising.