Sovereignty and human rights in “post-conflict” constitution-making: toward a jus post bellum for “interim occupations”

2012 ◽  
pp. 223-265
Author(s):  
Jean L. Cohen ◽  
Jean L. Cohen
Keyword(s):  
Human Rights ◽  
Jus Post Bellum ◽  
Post Conflict ◽  
Constitution Making

scholarly journals Mapping a Norm of Inclusion in the Jus Post Bellum

2020 ◽  
pp. 130-146
Author(s):  
Catherine Turner
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Human Rights ◽  
Jus Post Bellum ◽  
Peace Negotiations ◽  
Post Conflict ◽  
Peace Agreements ◽  
Sustainable Peace ◽  
International Human ◽  
United Nations Charter

This chapter maps the existence of provisions requiring the inclusion of traditionally excluded groups in peace negotiations. It argues that international law now require inclusion not only as an aspiration or an optional political gesture, but as a fundamental general principle of the jus post bellum. It shows that inclusion as a norm emerges from within existing shared principles embodied in the United Nations Charter, the Universal Declaration of Human Rights, and existing international human rights treaty law. It proposes inclusion as an underpinning norm of jus post bellum, ensuring sustainable peace by engaging with those most affected by peace agreements and post-conflict constitutions.

Construing Contemporary Cosmopolitan Constitution-Making: A Comparative View

Global Jurist ◽  
2018 ◽  
Vol 18 (2) ◽  
Author(s):  
Qerim Qerimi
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
Legal Order ◽  
Domestic Sphere ◽  
International Human Rights ◽  
Post Conflict ◽  
International Human ◽  
Law Making ◽  
Constitution Making

Abstract The newest and gradually evolving trends in global law-making have been defined by an ever increasing interplay between rules and principles of different legal orders and between national legal orders and international legal order. References in national constitutions to the binding force of international law within the domestic sphere and sometimes the primacy of such internationally-made law over national laws are now a widespread and unsurprising phenomenon. Clauses referring to international human rights, including direct applicability of specific international human rights instruments, also to international organizations such as the UN, or accession to new international organizations, including transfer of sovereignty, can also be found in a significant variety of cases. The most unique feature of these trends could, however, be the establishment of national constitutional and legal order based on, or modeled after, international law and comparative law. At a broader constitutional level, for example, the international community has played a pivotal role in the style and substance of the constitutions of a number of post-conflict, newly-formed or transformed societies (e. g., Constitutions of Cambodia, Bosnia and Herzegovina, South Africa, East Timor, Afghanistan, Iraq, Kosovo, Libya, and South Sudan). This process of constitution-making influenced by, based on, or modeled after, international law, has unique features that resonate with a cosmopolitan constitutional law-making. This paper seeks to understand the contours of this phenomenon, ascribe the proper value, and identify the degree to which contemporary constitution-making conforms to the original ideals of cosmopolitanism.

scholarly journals Eternity clauses in post-conflict and post-authoritarian constitution-making: Promise and limits

2017 ◽  
Vol 6 (1) ◽  
pp. 63-100
Author(s):  
SILVIA SUTEU
Keyword(s):  
Human Rights ◽  
Term Limits ◽  
The State ◽  
The Political ◽  
Post Conflict ◽  
Constitution Building ◽  
Territorial Division ◽  
Distinctive Role ◽  
Political Settlement ◽  
Constitution Making

Abstract:The literature on entrenchment as a means to achieve constitutional endurance has grown in recent years, as has the scholarship on unamendable provisions as a mechanism intended to safeguard the constitutional project. However, little attention has been paid to the promise and limits of eternity clauses in transitional settings. Their appeal in this context is great. In an effort to safeguard hard-fought agreements, drafters often declare unamendable what they consider the fundamentals to the political deal: the number of presidential term limits, the commitment to human rights and to democracy, the form of the state (whether republican or monarchical), the territorial integrity of the state, the territorial division of power, secularism or the official religion. This article explores the distinctive role and problems posed by eternity clauses in transitional constitution-building, as guarantees of the pre-constitutional political settlement in such fragile periods. The article also compares unamendability to other techniques of constitution-making in uncertain times, such as sunset clauses, deferring hard choices and other forms of constitutional incrementalism.

Using African Truth and Reconciliation Commission documentation for truth telling and reconciliation

2020 ◽  
pp. 1-5
Author(s):  
Proscovia Svärd
Keyword(s):  
Human Rights ◽  
Truth And Reconciliation Commission ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Truth Telling ◽  
Reconciliation Commission ◽  
Truth And Reconciliation ◽  
Post Conflict ◽  
Truth And Reconciliation Commissions ◽  
Reconciliation Process

Truth and Reconciliation Commissions (TRCs) are established to document violations of human rights and international humanitarian law in post-conflict societies. The intent is to excavate the truth to avoid political speculations and create an understanding of the nature of the conflict. The documentation hence results in a common narrative which aims to facilitate reconciliation to avoid regression to conflict. TRCs therefore do a tremendous job and create compound documentation that includes written statements, interviews, live public testimonies of witnesses and they also publish final reports based on the accumulated materials. At the end of their mission, TRCs recommend the optimal use of their documentation since it is of paramount importance to the reconciliation process. Despite this ambition, the TRCs’ documentation is often politicized and out of reach for the victims and the post-conflict societies at large. The TRCs’ documentation is instead poorly diffused into the post conflict societies and their findings are not effectively disseminated and used.

The Kenya National Commission on Human Rights under the 2010 Constitutional Dispensation

2018 ◽  
Vol 26 (2) ◽  
pp. 205-226
Author(s):  
Bonolo Ramadi Dinokopila ◽  
Rhoda Igweta Murangiri
Keyword(s):  
Human Rights ◽  
Transitional Justice ◽  
National Commission ◽  
Bill Of Rights ◽  
Institutional Perspective ◽  
Post Conflict ◽  
National Human ◽  
The Status ◽  
Protection Of Human Rights

This article examines the transformation of the Kenya National Commission on Human Rights (KNCHR) and discusses the implications of such transformation on the promotion and protection of human rights in Kenya. The article is an exposition of the powers of the Commission and their importance to the realisation of the Bill of Rights under the 2010 Kenyan Constitution. This is done from a normative and institutional perspective with particular emphasis on the extent to which the UN Principles Relating to the Status of National Institutions for the promotion and protection of human rights (the Paris Principles, 1993) have been complied with. The article highlights the role of national human rights commissions in transformative and/or transitional justice in post-conflict Kenya. It also explores the possible complementary relationship(s) between the KNCHR and other Article 59 Commissions for the better enforcement of the bill of rights.

Victory and the Ending of Conflicts

2017 ◽  
Author(s):  
Eric Patterson
Keyword(s):  
Rule Of Law ◽  
Just War ◽  
Conflict Situation ◽  
State Agency ◽  
Political Leaders ◽  
The Rule Of Law ◽  
Jus Post Bellum ◽  
Post Conflict ◽  
War Aims ◽  
Just Peace

Scholars and political leaders have recently grown increasingly uncomfortable with terms like victory and ‘unconditional surrender’. One reason for this becomes clear when reconsidering the concept of ‘victory’ in terms of ethics and policy in times of war. The just war tradition emphasizes limits and restraint in the conduct of war but also highlights state agency, the rule of law, and appropriate war aims in its historic tenets of right authority, just cause, and right intention. Indeed, the establishment of order and justice are legitimate war aims. Should we not also consider them exemplars, or markers, of just victory? This chapter discusses debates over how conflicts end that have made ‘victory’ problematic and evaluates how just war principles—including jus post bellum principles—help define a moral post-conflict situation that is not just peace, but may perhaps be called ‘victory’ as well.

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