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  • Ch. Kypraios Kypraios, The Socioeconomic Rights Obligations of States and IFIs during Sovereign Debt Management (Springer 2022) (forthcoming)
  • E. Fasia and Ch. Kypraios Kypraios, '‘SDG 14: Life Below Water. Conserve and sustainably use the oceans, seas and marine resources for sustainable development’' in I. Bantekas and F. Seatzu (eds), Commentary on the Sustainable Development Goals (OUP 2022) (forthcoming)
  • T Khaitan, 'A Case for Moderated Parliamentarism ' (2021) 7 Canadian Journal of Comparative and Contemporary Law 81
    In this article, I bring two key issues in constitutional studies — institutional regime type and electoral system choice — in conversation with each other, and examine their interaction through a normative framework concerning the role that constitutions ought to play in shaping their party systems. The main goal is to offer a theoretical defense (ceteris paribus) of moderated parliamentarism — as superior to its alternatives such as presidentialism, semi-presidentialism, and other forms of parliamentarism. Moderated parliamentarism entails a strong bicameral legislature in which the two chambers are symmetric (i.e. they have equal legislative powers) and incongruent (i.e. they are likely to have different partisan compositions). It has a centrist chamber whose main function is to supply confidence to the government, and a diversified chamber whose main function is to check this government. The confidence and opposition chamber is elected on a moderated majoritarian electoral system (such as approval vote or ranked-choice/preferential vote system, but not first-past-the-post); the diversified chamber — a fully independent checking and appointing chamber — is constituted on a proportional representation model (moderated by a reasonably high threshold requirement for translating votes into seats). The confidence and opposition chamber is elected wholesale for shorter terms. It alone has the power to appoint and fire a unified political executive headed by a prime minister. The checking and appointing chamber is independent of the confidence and opposition chamber as well as of the political executive; its members have longer and staggered terms. Moderated parliamentarism combines the benefits of different regime types and electoral systems in a way that optimizes four key constitutional principles in relation to political parties: it protects the purposive autonomy of parties and enables their ability to keep the four democratic costs low; it serves the party system optimality principle by making it more likely that every salient voter type will have a party to represent it, but also distinguishes between governance parties (which are likely to dominate the confidence and opposition chamber) and influence parties (which will have a space in the checking and appointing chamber); it aids the party-state separation principle by giving significant (and over-weighted) checking powers to smaller parties in the checking chamber; and it promotes the anti-faction principle by distinguishing between smaller influence parties that are polarizing factions from those that are not factional (and punishing the latter a lot less severely than the former). The traditional debates between presidentialism and parliamentarism, and between majoritarian and proportional electoral systems have endured for as long as they have because each system brings something attractive to the table. Moderated parliamentarism seeks to combine the most attractive elements of each — checks and balance from presidentialism, continuous precarity of the political executive from parliamentarism, anti-factionalism of majoritarian electoral systems, and political pluralism of proportional representation systems. Because these virtues are in tension, no system can maximize each of them without incurring a cost for another. Moderated parliamentarism is one way to optimize the virtues of each system and yet yield a stable and effective regime type.
  • S Atrey and G Pillai, 'A Feminist Rewriting of Air India v Nergesh Meerza AIR 1981 SC 1829: Proposal for a Test of Discrimination under Article 15(1)' (2021) Indian Law Review
  • S Atrey, 'Beyond Discrimination: Mahlangu and the Use of Intersectionality as a General Theory of Constitutional Interpretation' (2021) International Journal of Discrimination and the Law [Case Note]
  • Ekaterina Aristova and Uglješa Grušić (eds), Civil Remedies and Human Rights in Flux: Key Legal Developments in Selected Jurisdictions (Hart Publishing 2021) (forthcoming)
  • T Khaitan, 'Constitutional Directives and the Duty to Govern Well' in Vicki Jackson, Yasmin Dawood (ed), Constitutionalism and the Right to Effective Government (CUP 2021) (forthcoming)
  • L Trueblood, 'Deliberative Peace Referendums' (2021) 20 International Journal of Constitutional Law [Review]
  • S Atrey, 'Feminist Constitutionalism: Mapping a Discourse in Contestation ' (2021) International Journal of Constitutional Law
  • HA Abraha, 'Government Access to Digital Evidence Across Borders: Some Lessons for Africa' in KM Yilma (ed), The Internet and Policy Responses in Ethiopia: New Beginnings and Uncertainties (Addis Ababa University Press 2021)
    As Internet use and digitalisation continue to grow in Africa, cross-border access to electronic evidence (such as emails, files and text messages) plays an indispensable role in ensuring public safety, security and the rule of law in Africa. Given the fact that a vast majority of data about citizens/residents of Africa today is stored, managed and processed by US-based technology companies, it has become difficult — at times impossible — for African governments to effectively investigate and prosecute domestic crimes without the assistance of these foreign companies. Considering this reality, this article seeks to answer three interrelated questions: how do African law enforcement authorities access data of residents/citizens in Africa held by US companies for legitimate criminal investigations? How ― and to what extent ― can African countries benefit from the cross-border data access reform initiatives emerging in Europe and the US? How should African stakeholders approach the Internet’s increasing cross-border legal challenges? This article argues that despite the intense debates and proliferation of reform initiatives elsewhere, the issue of cross-border data access is yet to draw the attention of African policymakers, academia and other stakeholders. It also demonstrates that neither the existing system used to obtain digital evidence held by US technology companies nor the emerging global initiatives to modernise this system will address African interests and concerns. This article then makes the case that it is high time for the African Union (AU), its Member States and other stakeholders to explore alternative approaches to cross-border data access and suggests some possible ways forward.
  • T Khaitan, 'Guarantor Institutions' (2021) 2022 Asian Journal of Comparative Law
    The last few decades have seen a proliferation of constitutional institutions, especially in the Global South, that do not neatly fit within any of three traditional branches of the state. These supposedly ‘fourth branch’ institutions may include electoral commissions, human rights commissions, central banks, probity bodies such as anti-corruption watchdogs, knowledge institutions such as statistics bureaus and census boards, information commissioners, auditors general, attorneys general and so on. In this paper, I will argue that some of these new institutions are best understood as “guarantor institutions”. I will show that in a given political context, a guarantor institution is a tailor-made constitutional institution, vested with material as well as expressive capacities, whose function is to provide a credible and enduring guarantee to a specific non-self-enforcing constitutional norm (or any aspect thereof). Section I explains why polities need credible and enduring guarantees for specific norms, and claims that the expertise, independence, and accountability of guarantor institutions are likely to be key ingredients that determine their effectiveness in serving that purpose. It also argues that constitutional entrenchment of the guarantor institution is entailed in the independence requirement. Section II shows that in order to credibly and enduringly guarantee a norm, certain primary and secondary duties need to be discharged by relevant actors in relation to the norm's content as well as its impact. It further argues that while some of these duties may be performed by institutions that possess expressive capacity alone (roughly, the capacity to speak, express, communicate), others require material capacity (i.e. the physical capacity to effect material changes in the world). Guarantor institutions, unlike integrity institutions, can shoulder primary as well as secondary duties. Furthermore, they are typically vested with expressive as well as material capacities, which is key to their classification-defying hybridity. Section III argues that guarantor institutions are constitutionalised in two respects: the norm they seek to guarantee is constitutional, and the institution itself has constitutional status. What matters for a norm or institution to be constitutional is that it is entrenched, i.e. protected from change from the ordinary political and legal processes of the polity to some extent. It is their doubly constitutional character that distinguishes guarantor institutions from ordinary regulators. Section IV explains how some constitutional norms are non-self-enforcing, in the sense that powerful actors are likely to have the will as well as the capacity to frustrate or erase them. It also shows that the three traditional branches, whether acting severally or jointly, cannot provide a credible and enduring guarantee to all non-self-enforcing constitutional norms. Hence the need for constitutional guarantor institutions. Section V highlights that guarantor institutions are typically tailor-made to guarantee specific constitutional norms. Their specificity has important consequences for their internal design and their mode of functioning, which distinguish them from key institutions in the three traditional generalist branches. Section VI concludes. Attention to guarantor institutions by constitutional scholars may help the discipline escape its blinkered worldview, which sees judicial review as the only game in constitution-town.
    ISBN: 1932-0205
  • HA Abraha, 'Law enforcement access to electronic evidence across borders: mapping policy approaches and emerging reform initiatives' (2021) 29 International Journal of Law and Information Technology
    With the ubiquity of cloud computing, criminal investigations today—including exclusively domestic ones—often require access to data across borders. However, the traditional system of cross-border legal cooperation—the Mutual Legal Assistance system—is ill-suited to this development. There is a growing consensus that this system is unsustainable and needs to be reformed or replaced with new alternatives. That is where the consensus ends, however. Despite the shared understanding of the problem and repeated calls for reform or replacement of the traditional system, there is little agreement on what these reforms or alternative approaches should look like. What one can witness instead is the proliferation of uncoordinated initiatives that could lead to further jurisdictional conflict and legal uncertainty. The purpose of the present contribution is to map and examine these various initiatives based on the approaches they follow in addressing the challenges in obtaining electronic evidence across borders—issues that are referred to broadly in this article as ‘cross-border data access [CBDA] problem’. It tries to answer two questions: what approaches can best explain the proliferation of initiatives aimed at improving law enforcement access to electronic evidence across borders? To what extent are these initiatives apt to address the CBDA problem? This article develops and distinguishes between four approaches—reformist, unilateralist, internationalist and nuanced—that can best explain the current and emerging initiatives. It then examines the suitability and sustainability of these approaches against their stated objectives and some key principles that have enjoyed extensive support in policy and academic discussions.
  • S Atrey, 'On the Central Case Methodology in Discrimination Law' (2021) Oxford Journal of Legal Studies
  • L Trueblood and Matt Qvortrup, 'Schmitt, Dicey, and the Power and Limits of Referendums in the United Kingdom' (2021) Legal Studies
  • S Atrey, 'Structural Racism and Race Discrimination ' (2021) Current Legal Problems
    DOI: 10.1093/clp/cuab009
    What is the relationship between ‘racism’ and ‘race discrimination’? The paper explores this question. It shows that once we look beyond racism understood colloquially as individual bigotry, to racism understood in a structural sense as embedded in the social, economic, cultural and political dimensions of the State itself, it is possible to locate racism in the practice of discrimination law, within the category of race discrimination. Yet, discrimination law frequently fails to grasp structural racism. The paper reveals how this happens and in turn shows how race discrimination can be infiltrated with a structural view of racism. The overall purpose is to establish that discrimination law fails to be relevant in the face of contemporary forms of racism in the absence of a structural view.
  • T Khaitan, 'Two Facets of Religion: Religious Adherence and Religious Group Membership' (2021) 34 Harvard Human Rights Journal 231
    In this Essay, I explain the differences between the two basic human rights related to religion that are recognized by Bills of Rights the world over: the right to freedom of religion and the right against religious discrimination.