Empirical Research on Constitutional Drafting Processes Following War or Internal Disturbances in Iraq, Tunisia, Kosovo and Sudan

Constitutional drafting is a complex procedure. Every year, nonetheless, the world witnesses the birth of several constitutions. The drafting of constitutions, however, differs greatly from one to the other; this depends mainly on the state of affairs in each State and the causes behind the need for a new constitution. In post-conflict States, the success of the constitutional drafting process depends on various factors including, inter alia, the inclusiveness of the process; transparency; equal representation in the bodies involved in the drafting; public participation; as well as the role the international community plays. All of these factors have great implications on the success, or failure, of not only the constitutional drafting process, but also on the whole peace-building process in post-conflict societies. In other words, a successful constitutional drafting process must be nationally-led and owned while targeting the root causes of the conflict. While it may be aided by international components, the process must reflect the geo-ideological differences within a State, whether cultural, tribal, ethnic or religious. This article gives an empirical account of the constitutional drafting processes adopted as a consequence of internal conflict in Iraq, Tunisia, Kosovo, and Sudan. The paper discusses the general drafting process; the bodies involved; procedural shortcomings; and any international influence.

The Right of Political Participation of Indigenous Peoples and the UN Declaration on the Rights of Indigenous Peoples

This article explains the obligations the international legal framework on the rights of indigenous peoples imposes on States regarding the right to political participation, in particular, the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Because of the historical exclusion and marginalization of these groups, mere recognition of the right of participation in domestic legal systems is insufficient to ensure the full enjoyment of the right by indigenous communities. Instead, States are obliged to adopt active measures to overcome the systemic discrimination indigenous peoples have been subject to. This article focuses on one of the many aspects of political participation, i.e., electoral participation. It provides both a typology and a critical account of different mechanisms States use to increase and promote the participation of indigenous peoples in electoral processes, specifically in elections for legislative bodies and in constitution-making processes. These mechanisms include the provision for reserved seats in parliament, the creation of special indigenous electoral districts, and the establishment of special electoral quotas for candidacies presented by political parties. The article argues that the effectiveness of each approach cannot be evaluated in abstracto, but must be assessed against the particular context in which a specific approach is adopted. Most importantly, the success of any specific approach should be measured by the extent to which they allow indigenous communities to have an actual chance at influencing political decision-making, particularly in situations that affect them.

The Future of the UN Human Rights Council: Insights at the Inter-Luminated Juncture of Thought and Experience

A relatively young body with roots in an older institution, the UN Human Rights Council has enjoyed some success and continued to serve important positive goals, many of them not easily realized. However, the system has always had significant internal and external limitations and continues to be beset by many problems – some more serious than others, and others more imagined than real. In our own time, the rise of right-wing populist regimes around the world, the continuities and discontinuities of the challenge that this sort of populism has posed to multilateralism in global governance, the economic crises that recently beset many parts of the world leading to serious resource constraints among many of the States that contribute the most to the UN’s budget, and the on-and-off withdrawals of the US (one of the most powerful States in the world) from the Council amidst charges of selectivity, appear to have combined to produce heightened crisis within and about that body. What to do? Informed by the cross-fertilization of the author’s academic thought and practical experience at the UN, the article offers an analysis of the Council’s attainments (including its embrace of a broader and more inclusive agenda, upr reduction of selectivity, the reform of its system of appointing special procedure mandate holders, increase in the number of standing invitations issued by States to such mandate holders, and establishment of an effective sids/ldcs fund); discusses the problems that presently confront the Council (many of which have already been referred to above); and works out in some detail some of the ways in which these difficulties can be effectively ameliorated so as to enhance the Council’s performance in the near- to medium-term future.

‘Guardian of the Solemn Pact’ – The Role of the Constitutional Court in South Africa’s Constitutional Transition

The Constitutional Court of South Africa has played a unique role in the country’s constitutional transition. This paper starts by detailing the historical and political context of the Interim Constitution which created the Constitutional Court and the constitutional principles. The article describes the approach of the Court in the First Certification Judgment (1996), analysing the impact of the Constitutional Court’s decision on the drafting of the final Constitution and the public more generally, before briefly outlining the role that the Court continues to play in protecting constitutional democracy as a ‘Guardian of the Solemn Pact’.

75 Years of International Law-Making at the United Nations

For the last 75 years, the UN has been placed at the centre of international law-making. The Organization can be considered both as a place where international law is discussed, made and interpreted by its Member States and as a proper actor, with its own international legal personality, voice and practice, engaged in the creation and implementation of international law. This article considers the extraordinary position of the UN in providing a unique contribution to the development, codification and implementation of international law in branches ranging from the law of treaties to the legal principles governing the protection and preservation of the marine environment or the criminal accountability for graves violations of international humanitarian law. On its 75th anniversary, the Organization has demonstrated its flexibility and adaptability to the changing priorities and concerns of the international community and facilitated the commitment of its Member States to multilateralism and the principles enshrined in the Charter signed on 26 June 1945 in San Francisco. Indeed, the outlook for the next 25 years of international law-making at the UN looks brighter than it may at first appear.

Taking Embodiment Seriously: Constitutional Law, the Economy and the Forms of Underdeterminacy

Economic policy does not require a constitutional grounding. However, many constitutions expressly dedicate articles and chapters to the national economy while others produce comparable effects by indirectly privileging particular economic arrangements. The constitutions of the US, the People’s Republic of China and the Philippines and the Basic Law of Hong Kong can plausibly be invoked to justify State approaches to economic ordering. However, each of them essentially underdetermines the economic fundamentals of the polity, not merely by deferring their concretization to governments and judiciaries, but by eschewing to commit the State to an identifiable level of involvement. Underdeterminacy can result from a variety of structural features, such as omissions, the use of contested concepts, the dilution of overarching economic alignments through countervailing constitutional provisions or limitations by ordinary legislation and the assortment of amorphous constitutional repertoires that give free rein to policy. The fact that even constitutions that were in their drafting informed not least by economic considerations fail to set the basic parameters of the economic arena queries the extent to which they can be said to embody any such underpinnings. It further questions the significance of constitutions and formal institutions in the formation of liberal market economies in particular and emphasizes the role of experience.

Adapting the Human Rights System to the Cyber Age

Cyber technologies have changed all spheres of contemporary life at both the national and international levels. At the same time, legal regulation in the sphere stays far beyond technical developments. As a result, an enormous number of new terms and concepts have been invented in the area. It is maintained sometimes that the changes are so drastic that the very notion of sovereignty is outdated and the individual becomes a key actor of international relations. Consequently, there is a clear need to assess the impact of cyber technologies on the enjoyment of human rights. Due to the absence of proper legal regulation, the necessity or possibility to state the emergence of the new ‘fourth’ generation of human rights on the Internet is already discussed. The present article focuses on the status of different categories of human rights in the digitalized world. It concludes that the development of cyber technologies may hardly cause the emergence of a new generation of human rights but rather results in the need to adapt the whole system of the existing human rights to the emerging reality.