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Reforming the World in Our Own Image: A Critique of Liberal Constitutionalism

Published on January 11, 2019        Author: 

Over the contest hovers, as in all ages, a concept of society formulated and fostered by intellectuals. This is not a reflection of reality, but a goal and hope of good men.

P.E.Corbett, Law and Society in the Relations of States (1951)

The conviction in a linear teleology of progress is fundamental to modernity – and to liberal democracy, its exemplary political formation. The supposition is that history has a telos, and that telos is liberalism. Yet in this era of profound disorientation, against the backdrop of increasing attention to the rise of ‘illiberal’ democracies, history is, as Wendy Brown has commented, becoming ‘both weightier and less deterministic’. The idea that law has evolved to some higher state of reason from which pinnacle it can trump over politics and ideology has proved an imaginative cul-de-sac. Attention to history is important, not to reinforce an artificial progress narrative, but to engender consciousness of the fluidity of politico-legal discourse and its capacity to change (see Martin Loughlin, Sword and Scales (2000), at 225-6).

In To Reform the World, Guy Fiti Sinclair has written a book of astonishing reach and intricacy. Its scope brings to mind the words of Woody Allen, ‘Can we actually “know” the universe? My god, it’s hard enough finding your way around Chinatown’. Yet this is not a book purporting to provide a blueprint for global order. One of the most interesting and insightful contributions of the book, and something that sets it apart from other international legal work on global governance, is its resistance to normative conclusions. Sinclair has developed a work of critical history, mapping the ‘constitutional growth’ of international organizations, yet without presenting this development as in any way teleological. Instead, the effect of the book is to debunk quietly yet powerfully any idea of the inevitability of any particular theory of global governance.

A theory that is never expressly critiqued, yet clearly in the frame, is that of liberal constitutionalism in global governance. Sinclair’s critical engagement occurs not on the already saturated theoretical plane, nor as a doctrinal exercise demonstrating how public law discourse permeates the practice of treaty drafting, adoption, interpretation or reform. Instead, his focus is on the everyday discursive level – the ‘rationalities’ and ‘technologies’ of power – tracking the deployment of constitutional discourse in the everyday practice of international organizations, namely the International Labour Organization, UN peacekeeping and the World Bank. The picture that clearly emerges is of international constitutionalism as a scholarly movement – yet with an international bureaucratic wing. The book reveals how the international civil servant has deployed the metaphor of constitutional growth to carry the logic of liberal reform into international organizations through a range of public-law related discourses, doctrines and techniques of interpretation. Read the rest of this entry…

Filed under: EJIL Book Discussion
 
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The ‘Mistrial’ of Kumar Lama: Problematizing Universal Jurisdiction

Published on April 6, 2017        Author: 

‘We know the grave can cry out after 50 years’. Kumar Lama, a colonel in the Royal Nepalese Army (RNA), sat in his hut in Gorusinghe Barracks opposite Amnesty official Daniel Alderman in May 2005. The Amnesty visit was prompted by on-going reports of serious human rights violations in the course of the people’s war between the CPN (Maoist) and the RNA. Alderman described the colonel as ‘a man of the world’, friendly and forthcoming, who clearly understood the laws of war and (as his comment to Alderman reflected) the possibility of bringing violators to justice, even many years later. In 2009, years after his visit to Nepal, Alderman received an email with the title ‘From a Nepalese friend’. The email was from Lama, then doing an MA in International Relations at Sussex University, inquiring about an Amnesty research job on Nepal, ‘a job’, Lama wrote confidently, ‘I could easily do’.

Colonel Lama was never offered the Amnesty job. In January 2013, he was arrested at his home in East Sussex and charged with two counts of torture under section 134 of the Criminal Justice Act, relating to incidents that had allegedly occurred between April and May 2005 at the Gorusinghe Barracks. The Act vested British courts with ‘universal jurisdiction’ over the offence of torture, meaning the offence could be prosecuted in the UK whatever the offender’s nationality and wherever the crime was committed. The arrest was the result of a sensible wager on the UK’s part, bargaining relatively low diplomatic cost for diplomatic credit in fulfilling its obligation under the Torture Convention to prosecute those suspected of torture found on its territory. While Nepal reacted angrily to the arrest, this served merely to expose the unholy (and inverse) relationship between justice and power. The most the Nepalese government could do in reaction to Lama’s arrest was to reject the offer of RAF chinook helicopters to help in the relief effort following the devastating earthquake in Nepal in April 2015.

The trial of Kumar Lama took place in the Old Bailey from June to July 2016. It can hardly be said there was a public appetite for the trial. Public and press galleries were consistently empty – I often sat there alone with Lama’s wife and daughters (disrupted occasionally by bored and bemused school groups, interested pensioners or tourists who had taken a wrong turn in the Lonely Planet guide). The Lama trial proceeded, like many trials in the Old Bailey, as something of a private conversation between judge and lawyers, upon which the public gallery were intrusive eavesdroppers. Trial observation is not easy in a system increasingly geared to see public access as less an aspiration of than a threat to the justice system. Even the jury seemed cast in the role of vexatious bystanders in a trial in which they were ultimately expected to be judges of facts affecting a family, victims, a country in which they had no apparent interest and of which they had no apparent knowledge. Read the rest of this entry…

 

A House of Kadis? Recent Challenges to the UN Sanctions Regime and the Continuing Response to the ECJ Decision in Kadi

Published on July 7, 2009        Author: 

Devika Hovell is a DPhil Candidate in international law at the University of Oxford, and Associate Fellow  at Chatham House. She worked formerly as Director of the International Law Project and Lecturer in International Law at the University of New South Wales. Her doctoral thesis applies a procedural fairness framework to Security Council  decision-making on sanctions.

Recent developments following the decision of the European Court of Justice in Kadi indicate that the decision may require a more holistic response to due process by the Security Council than has been contemplated to date. The 11 June 2009 decision of the Court of First Instance in Othman v Council of the European Union, the European Commission’s proposal on 22 April 2009 to enact a regulation enabling it to second-guess Security Council sanctions listings and Mr Kadi’s initiation of new proceedings in the Court of First Instance on 26 February 2009 all provide potential new challenges to the ability of EU member states to comply with the Security Council sanctions regime. The leak sprung in the sanctions regime with the ECJ’s decision in Kadi threatens to assume a more sieve-like quality as more and more designations risk being overridden at the regional or domestic level on due process grounds. As the repercussions of the Kadi decision become increasingly pervasive, there is a sense that even the tectonic Permanent Five may be starting to shift on the issue.

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