Valentina Volpe

Bio: Valentina Volpe is an academic researcher from Max Planck Society. The author has contributed to research in topics: Human rights & International law. The author has an hindex of 3, co-authored 7 publications receiving 19 citations. Previous affiliations of Valentina Volpe include Lille Catholic University.

An Emerging Right to a “Gay” Family Life? The Case Oliari v. Italy in a Comparative Perspective

Abstract: This Article analyses, through the lens of comparative law, the Oliari and others v. Italy judgment, which was issued by the European Court of Human Rights (ECtHR) in July 2015. The Oliari case is important for being the first judgment in which the ECtHR established the granting of legal “recognition and protection” to same-sex couples as a positive obligation for the Member States of the Council of Europe on the basis of Article 8 of the European Convention on Human Rights. In order to understand the role of judicial bodies in the progressive protection of homosexual rights, this Article combines an analysis of European case law with the national perspective. As it concerns the supranational facet, the authors illustrate Oliari's reasoning and situate the case in the jurisprudence of the ECtHR. Elements of both continuity and innovation emerge from the analysis, as well as a relevant dimension of judicial dialogue supporting the incremental recognition of gay rights in Europe. As it concerns the national facet, this specific case was initially dealt with at the domestic level and was the object of judgment 138/2010 by the Italian Constitutional Court. The judgment is critically put into perspective through the examination of the jurisprudence of other European Constitutional Courts (France, Portugal and Spain) that were called on to decide similar cases in the same period. Therefore, the Article offers a comparative analysis of the Oliari judgment clarifying its relevance and speculating on the potential value of this case for the future recognition of the right to a “gay” family life in Europe.

Reconciling State Immunity with Remedies for War Victims in a Legal Pluriverse

Abstract: The chapter explains the threefold aspiration of the book as an academic, societal, and diplomatic project. It introduces the three interwoven themes of international law arising in the German-Italian saga: state immunity, reparation for serious human rights violations committed during World War II, and the interplay between international and domestic law, notably the role of courts therein. The chapter proposes an approach of ‘ordered pluralism’ to coordinate this interplay, and finally tables a ‘modest proposal’ for a way out of the current impasse.

Drafting Counter-Majoritarian Democracy. The Venice Commission's Constitutional Assistance

Abstract: Since its creation at the end of the Cold War, the European Commission for Democracy through Law (Venice Commission) has been providing technical-legal assistance in the area of constitutional reform to new or restored Central-European democracies. This article suggests that ‘constitutional assistance’, encouraging the adoption of supranational and European legal standards at the national level, favored the endorsement of a counter-majoritarian model of democracy in assisted countries, typical of European constitutionalism. The article firstly introduces the Venice Commission’s mandate, current developments, and distinctive constitutional assistance activity, underlining its main strengths and weaknesses in terms of technicality and policy. It focuses in particular on four constitutional features that have a counter-majoritarian dimension, which the Venice Commission consistently promoted in assisted countries favoring their inclusion at the national level: a. Primacy of International Law; b. Respect for the European Convention on Human Rights Standards; c. Checks and Balances; and d. Constraints on Direct Democracy. The potential paradox implicit in the idea of a technical body setting constitutional and democratic standards is addressed – and for the most part dismissed – in the final part of the article.

Drafting Counter-majoritarian Democracy: The Venice Commission's Constitutional Assistance

Abstract: Since its creation at the end of the Cold War, the European Commission for Democracy through Law (Venice Commission) has been providing technical-legal assistance in the area of constitutional reform to new or restored Central-European democracies. This article suggests that ‘constitutional assistance’, encouraging the adoption of supranational and European legal standards at the national level, favored the endorsement of a counter-majoritarian model of democracy in assisted countries, typical of European constitutionalism. The article firstly introduces the Venice Commission’s mandate, current developments, and distinctive constitutional assistance activity, underlining its main strengths and weaknesses in terms of technicality and policy. It focuses in particular on four constitutional features that have a counter-majoritarian dimension, which the Venice Commission consistently promoted in assisted countries favoring their inclusion at the national level: a. Primacy of International Law; b. Respect for the European Convention on Human Rights Standards; c. Checks and Balances; and d. Constraints on Direct Democracy. The potential paradox implicit in the idea of a technical body setting constitutional and democratic standards is addressed – and for the most part dismissed – in the final part of the article.

The Importance of Being Earnest. The United Nations and Democracy-Promotion

Abstract: Democracy has become a concept readily identifiable with the United Nations (UN) in relatively recent times. As in the case of other international organizations, it was only at the end of the Cold War that democracy-promotion became part of the UN-driven global activities and distinctive agenda. The UN institutional and legal framework remained, instead, fundamentally unaffected by the post 1989 events, creating a problematic discrepancy between the unchanged organization’s founding values, membership requirements, and general structures, and its progressively more intense pro-democratic global projection. This chapter argues that the UN adopted an essentially instrumental view of democracy in order to remedy this discrepancy. This undisclosed choice aimed to present democracy mostly as a tool for pursuing the organization’s fundamental values and institutional goals of promoting peace, human rights and development. These contemporary dimensions of the UN action raise nonetheless a number of questions: to what extent should the instrumental approach be considered legitimate and effective? Are its underlying assumptions, particularly the existence of causal relationships linking democracy to the UN Charter’s goals so uncontroversial, both in the academic literature and in the global actors’ general experience? The chapter firstly analyzes the approach of the UN towards democracy before and after 1989. It then focuses on the view of democracy both as an autonomous and “universal value” to be promoted in itself (democracy as an ‘end’) and on the view of democracy as an instrument for pursuing UN institutional goals (democracy as a ‘means’). The three basic axioms supporting this perspective—democracy for peace, democracy for human rights, and democracy for development—will be analyzed from both a theoretical and empirical point of view. In the conclusion attention will be payed to the “importance of being earnest” for the UN, drawing on comparative law experiences and lessons learned.

Parting Ways or Lashing Back? Withdrawals, Backlash and the Inter-American Court of Human Rights

Abstract: This paper will analyze instances and threats of withdrawal from the IACtHR in order to assess whether those cases can be qualified as backlash. Backlash often serves as an umbrella term for any form of disagreement, hence, we differentiate backlash’ from closely connected concepts such as ‘contestation’ and ‘resistance’. In the empirical part of this paper, we examine four cases of withdrawal from the IACtHR or threats thereof, namely Trinidad and Tobago, the Dominican Republic, Peru, and Venezuela. The case studies revealed that the criticism against the IACtHR is fueled by a combination of three conditions, i.e. costs of membership, domestic political system, and domestic impact of the judgments. Ultimately, the specific framework of the IACtHR allows for innovative starting points to manage state discontent, in particular the two-tiered structure, the alliance with civil society, and the presence of compliance partners within the state.

Beyond Judicial Councils: Forms, Rationales and Impact ofJudicial Self Governance in Europe

Abstract: A few years ago, judicial councils composed primarily of judges were viewed as a panacea for virtually all problems of court administration in Europe. The burgeoning literature on judicial councils has shown that this is not necessarily thecase. This article builds on this literature, but it argues that judicial self­ governance is much broader phenomenon than judicial councils and may also take different forms. Therefore, it is high time to look beyond judicial councils and to view judicial self–­governance as a much more complex network of actors and bodies with different levels of participation of judges. To that end this article conceptualizes judicial self­ governance and identifies crucial actors within the judiciary who may engage in judicial governance (such as judicial councils, judicial appointment commissions, promotion committees, court presidents and disciplinary panels). Subsequently,it shows that both the forms, rationales, and effects of judicial self governance have varied across Europe. Finally, this article argues that it is necessary to take into account the liquid nature of judicial self governance and its responsiveness to political, social, and cultural changes. Moreover, the rise of judicial self governance is not necessarily a panacea, as it may lead to political contestation and the creation of new channels of politicization of the judiciary.

Cultural Relativism and Cultural Imperialism in Human Rights Law

Abstract: The "Universalism-Cultural Relativism" debate proceeds on the assumption that international human rights law requires the identification of fundamental principles of justice that transcend culture, society, and politics. Thus, the debate presumes that to assert the cultural relativity of justice is to deny the legitimacy of international human rights law. This comment challenges this presumed linkage between international human rights law and universally valid criteria of justice. Human rights standards are obviously culturally relative, and human rights law is obviously a Western institution. But so are the kind of states that human rights law sets out to restrain. The nation-state ideal is rarely fulfilled in the post-colonial world; the weak state sector is often just one cultural structure among many rather than the center from which a national culture radiates. The imperialism critique of human rights law hinges upon an ideal of national self-determination that may be unrealistic for much of the developing world. International governance of these societies is probably inevitable whether or not we acknowledge it. Rather than asking whether human rights standards are authentic to the national cultures of the developing world, we should ask whether and how human rights law marginally contributes to building societies capable of self-determination at some future point.

International Law in the Post-Human Rights Era

Abstract: International law is in a period of transition. After World War II, but especially since the 1980s, human rights expanded to almost every corner of international law. In doing so, they changed core features of international law itself, including the definition of sovereignty and the sources of international legal rules. But what might be termed the “golden-age” of international human rights law is over, at least for now. Whether measured in terms of the increasing number of authoritarian governments, the decline in international human rights enforcement architecture such as the Responsibility to Protect and the Alien Tort Statute, the growing power of China and Russia over the content of international law, or rising nationalism and populism, international human rights law is in retreat. The decline offers an opportunity to consider how human rights changed, or purported to change, international law and how international law as a whole can be made more effective in a post-human rights era. This article is the first to argue that international human rights law – whatever its much disputed benefits for human rights themselves – appears to have expanded and changed international law itself in ways that have made it weaker, less likely to generate compliance, and more likely to produce interstate friction and conflict. The debate around international law and human rights needs to be reframed to consider these costs and to evaluate whether international law, including the work of the United Nations, should focus on a stronger, more limited core of international legal norms that protects international peace and security, not human rights.