Carolyn Forstein | Institute of International Education (original) (raw)
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Papers by Carolyn Forstein
Indiana International & Comparative Law Review, 2014
The problem of systemic non-enforcement of judicial decisions, the Ukrainian government's failure... more The problem of systemic non-enforcement of judicial decisions, the Ukrainian government's failure to respond to a pilot judgment, and Russia's legislative reform offer important case studies for both rule of law development in the post-Soviet sphere and the efficacy of the European human rights system. This article looks at systemic non-enforcement both as a domestic and international challenge. It first examines Ukraine's history with the European Court of Human Rights and the response to the Ivanov v. Ukraine 1 pilot judgment. It unpacks the factors that are responsible for persistent non-enforcement and for preventing domestic reform. It then turns to Russia, and explores the European Court of Human Rights' pilot judgment in the case Burdov v. Russia (no. 2), 2 the Russian response, and implementation of the subsequent reforms. Lastly, the article examines the significance and implications of these cases for the European human rights regime.
The doctrine of specialty, which provides that a state may only try an extradited individual for ... more The doctrine of specialty, which provides that a state may only try an extradited individual for the offenses agreed to by the sending state, is a fundamental feature of extradition laws and widely codified in bilateral treaties. However, when extraditions take place on the basis of comity, U.S. courts differ on whether a specialty limit applies as a matter of customary international law. Additionally, multilateral treaties containing an obligation to extradite do not include specialty provisions, raising the question of whether states would be bound to respect the doctrine when extraditing pursuant to such treaties. This Note examines jurisprudence in the United States, foreign courts, and international tribunals, and demonstrates that specialty is not applied consistently as a norm of customary international law. To the contrary, while national courts have relied on national legislation or read specialty into a bilateral treaty which was silent on the matter, few courts have maintained that the doctrine applies in the absence of a treaty, and those that have did not conduct a traditional customary international law analysis. While this conclusion is in line with the historically contractual nature of extradition, some recent jurisprudence also shows an increased willingness to decline jurisdiction over individuals obtained illegally. This Note concludes that while no customary norm of specialty currently exists, such a rule would be a necessary corollary should an obligation to either refuse jurisdiction in certain circumstances or to prosecute or extradite emerge in customary international law.
Indiana International & Comparative Law Review, 2014
The problem of systemic non-enforcement of judicial decisions, the Ukrainian government's failure... more The problem of systemic non-enforcement of judicial decisions, the Ukrainian government's failure to respond to a pilot judgment, and Russia's legislative reform offer important case studies for both rule of law development in the post-Soviet sphere and the efficacy of the European human rights system. This article looks at systemic non-enforcement both as a domestic and international challenge. It first examines Ukraine's history with the European Court of Human Rights and the response to the Ivanov v. Ukraine 1 pilot judgment. It unpacks the factors that are responsible for persistent non-enforcement and for preventing domestic reform. It then turns to Russia, and explores the European Court of Human Rights' pilot judgment in the case Burdov v. Russia (no. 2), 2 the Russian response, and implementation of the subsequent reforms. Lastly, the article examines the significance and implications of these cases for the European human rights regime.
The doctrine of specialty, which provides that a state may only try an extradited individual for ... more The doctrine of specialty, which provides that a state may only try an extradited individual for the offenses agreed to by the sending state, is a fundamental feature of extradition laws and widely codified in bilateral treaties. However, when extraditions take place on the basis of comity, U.S. courts differ on whether a specialty limit applies as a matter of customary international law. Additionally, multilateral treaties containing an obligation to extradite do not include specialty provisions, raising the question of whether states would be bound to respect the doctrine when extraditing pursuant to such treaties. This Note examines jurisprudence in the United States, foreign courts, and international tribunals, and demonstrates that specialty is not applied consistently as a norm of customary international law. To the contrary, while national courts have relied on national legislation or read specialty into a bilateral treaty which was silent on the matter, few courts have maintained that the doctrine applies in the absence of a treaty, and those that have did not conduct a traditional customary international law analysis. While this conclusion is in line with the historically contractual nature of extradition, some recent jurisprudence also shows an increased willingness to decline jurisdiction over individuals obtained illegally. This Note concludes that while no customary norm of specialty currently exists, such a rule would be a necessary corollary should an obligation to either refuse jurisdiction in certain circumstances or to prosecute or extradite emerge in customary international law.