Fifteen Eighty Four

A common language and forum for debate on state transitions is essential today. Our age is indeed characterised by the increasing involvement of diplomatic actors in the constitutional and transitional affairs of other states. Constitution-making and transitions are seen as panacea – almost magic formula. Political and diplomatic reactions to crisis and conflict in Algeria, Libya, Nepal, (South) Sudan, Syria, Ukraine and Venezuela – and many other contexts mentioned here– show how constitution-making is increasingly tabled as a method to bring stability. Millions of citizens are concerned worldwide. No wonder that states and organisations actively engage with transitions abroad. Today’s era of ‘constitutional geopolitics’ is being extended to the entire interim rule – that is, the months, sometimes years of a state’s constitution and institutions being overhauled (‘transitional governance’). Mostly, yet often unsuccessfully, in the name of peace.

Can international law play a meaningful role, if any at all, in relation to a phenomenon as politically sensitive and volatile as transitional governance? Like any law, international law is a manifestation of power and politics, as follows. Contrasting positions are internalised in the law: ‘rights … are not beyond politics but are themselves intense manifestations of political battle’ (Klabbers, 2006). This self-evidence also affects the law’s purpose in international relations. Thus, ‘when states cannot agree upon definite and specific standards of behavior … but need, however, some sort of basic guideline for their conduct, their actions and discussions eventually lead to the formulation of principles’ (Cassese, 1995).

Let us agree to disagree. Then, let us agree, still, on how to contain the disagreement. This, in my view, summarises a core function of international law. Once power relations are internalised in the law, it serves to continually re-interpret these ever-changing relations. Even in this context, ironically, a shared approach induces the norm’s creation. The norm’s inception indeed hinges on the consensus that unresolved tensions, rather than brutally erupting or remaining unaddressed, should be translated into a text imposing a standard of behaviour. The norm then often acquires a higher degree of abstraction through what is known in diplomatic jargon as ‘constructive ambiguity’.

While originating from a context of exchange and contestation, the law is usually represented as neutral. Yet, its very origins preclude intrinsic neutrality. This legal fiction, of enormous proportions, has its own utility. By offering a shared grammar, international law has the potential of providing a formally self-referential toolbox for argumentation that can continuously be refined. Such common framework, however robust, is indispensable especially in the absence of a true homogenous international community. It counts indeed among the more efficient ways to let heated discussions –including on state transitions – gain serenity.

Persons contributing to the law’s development and implementation then arguably have a correlative deontological obligation going beyond simply getting acquainted with the existing international legal vocabulary. They should in my view also socialise its further use. Mainly for the reason already mentioned: through international law as a seemingly neutral shared language, most debates, rather than being diffused, can be brought to another level. This approach furthermore serves a central diplomatic value – prudence – itself too an incentive to address complex phenomena at a more abstract and indeed rational level.

Dialogue between scholars and practitioners – including diplomats, foreign affairs civil servants and jurisconsults – is instrumental to keeping international law as a forum for debate alive and well. A long while ago, I heard a civil servant of a not-to-be-named country once saying “we don’t care what the professors say”, which I found as absurd as a scholar who’d say that state practice doesn’t matter. At least since Grotius the cross-fertilisation between practice and theory is a dynamic international lawyers are well-acquainted with. Sovereigns who keep investing in a rules-based international order anchored in multilateralism usually still value this interaction.

Crucially, how the law on transitional governance will evolve largely depends on how practitioners reconcile action and reflection. At turning points – of a magnitude of state transitions affecting populations globally, no less – we hope you’d agree that having anchor points for discussing diplomatic engagement with transitional governance is no sheer luxury. How to read extended periods of interim rule in light of the principle of self-determination? May a sovereign indirectly cause regime change, through constitutional geopolitics? The lens of international law would, finally, allow victims of undue interference in their transition to frame their claims in juridical, not only political, terms. Such exercise is not intended to obscure that transitions are sites of heated domestic and international contestation. Quite the opposite, the purpose is to elevate the discussion for the benefit of all citizens concerned. Let the debate flourish.

REFERENCES

A. Cassese, Self-determination of Peoples: a Legal Reappraisal, Hersch Lauterpacht Memorial Lecture Series, Cambridge University Press, 1995., p. 128

J. Klabbers, ‘The Right to be Taken Seriously: Self-Determination in International Law’, Human Rights Quarterly, Volume 28, Number 1, 2006, p. 199.

Featured image is of a sculpture by Philippe Carbonez