tribulaciones de un imbecil

The securitization of immigration: the case of Spain

noreply@blogger.com (bordesinremedio) — Mon, 08 Feb 2010 22:35:00 +0000

Introduction

This essay explains how immigration has become securitized in Spain and which measures have been taken for tackling the issue. The first part explains securitization. The second explicates how the issue was securitized in Spain, and the third part delves into the measures and processes taken by Spain at the different levels of governance.

I. The securitization of immigration

Securitization is a concept developed in the 90s by the so-called Copenhagen School by where it attempts to explain the adoption of a series of stringent measures in order to tackle an issue deemed risky to a given community through the employment of speech acts. A recurrent use of security language by certain prominent actors within a community helps to legitimize the advancement of managerial tools that in another context would have encountered a more arduous stance from different actors without the pervading impact of the speech acts (Neal 2009: 335). In other words, securitization can thus be described as a continuing discursive process whereby certain political agents frame an issue as posing a grave menace to the stability and integrity of a society which creates the conditions to adopt measures that prioritize security, a logical consequence of a process called securitization, over human rights issues. It is relevant to underscore the fact that in this situation the insistence is on political actors over others. This is not to deny the relevance that social actors can have in taking up with an issue and cautioning over its possible dangers and the insistence on adopting measures, but in all state structures, the political actors have a prominent role in the development of any sort of initiative as they are most likely embedded in the institutional structure of the state. As Neal notes “the capacity of the actor to securitize an issue effectively is an important consideration, as the actor needs sufficient institutional and political authority for their statements to contribute to the shaping of political and social relations” (Neal 2009: 335). The security discourse then must be appraised not only on the linguistic level but equally in conjunction with institutions.

Moreover, after an issue has been securitized through institutional practices, it creates its own development and could depart from the social and political origin of the securitization. To put it differently, once a matter has been securitized and established through institutional measures, it will generate its own logic and even if the matter has been desecuritized at the societal level, the embedded values will be reflected in the institutional practices. For instance, the issue of immigration will surely be treated differently if the matter falls under the Ministry of Home Affairs or Social Affairs. If immigration is treated principally by the Home Affairs departments it will be influenced by their institutional practices. In the case of the police, it is trained for analyzing the diverse policies as a matter of security problems and it will provide security solutions (Huysmans 2000: 757). This dynamic will persist even if the problem has been desecuritized at the political and societal level because of the institutional arrangements created and the inherent logic behind certain departments. Thus, securitization must be taken into account not only through the security speech acts laid down by political and societal actors and their consequential mobilization in favour of them but also through a myriad of procedures that internalize and operationalize the security logic (Bigo 2002: 65).

Now, in the area of immigration the securitization process has been construed as a collective enterprise and the identification of the society with the security policies (Díaz and Abad 2008: 141). Collective enterprise because immigration is presented as a danger that threatens the community as the entry of others alien to the society can weaken the distinctive traditions and the homogeneity. Here the border becomes the barrier by which the society can continue to exist as represented against the threat posed by the immigrants that can destabilize not only the community, as they are deemed cultural aliens that alter the myth of the homogenous political community (Huysmans 2000: 758) also the instability of the state itself as they are portrayed as a danger for the welfare state as immigrants are allegedly seen to be unfair users of the services (Huysmans 2000: 767; Sasse 2005: 678). In this context, immigration is described in terms that depict the issue as something negative that can cause potential harm. It is normal to tie immigration with words like invasion, tide or flows. It attempts in associating the phenomenon with something that cannot be stopped and that is negative for the developing of the community. Furthermore, immigration is not only linked with poverty or illegality, since 9/11 terrorism and its side effects are directly associated with the arrival of immigrant. To see them as potential threats until proven otherwise is the common attitude (Zapata-Barrero 2008: 117). Then the control of the border becomes essential as it defends a specific political community but also a barrier against terrorism, crimes, poverty or drugs, creating a security continuum, the defence of the internal from the external (Huysmans 2000: 760). As Bigo pinpoints “the issue was no longer, on the one hand, terrorism, drugs, crime, and on the other, rights of asylum and clandestine immigration, but they came to be treated together” (1994: 164 cited in Huysmans 2000: 760). As a result of the aforementioned, the securitization of immigration is twofold: through the use of security language in order to raise ‘awareness’ of the circumstance and with the implementation of security policies.

II. The securitization of immigration in Spain: the political and societal discourse

The securitization of immigration is directly affected, reproduced or modified, especially in a liberal democracy, by the reception of the speech acts by society as their acquiescence to adopt extraordinary measures, and Spain is no exception to that situation. In comparison with similar countries nearby, like France, Spain has only recently become a receiver of immigrants, while for a long time due to the economic situation of the country it was an exporter of immigrants. This is reflected in the fact that the first piece of legislation approved related to the issue was in 1985 with the LO 5/1985 and LO 7/1985 sobre derechos y libertades de los extranjeros en España, and only because it was imposed by the requirements of the European Community in order to accede to it, not for the proper existence of an immigration policy (Zapata-Barrero and De Witte 2007: 85). This situation would drastically change with the steady improvement of the country. The data shows how since 1997 Spain has become the EU member state that has most contributed to the migratory balance. In 2004, for instance, a 40% of the immigrants ended up in Spain (Sorroza 2007: 1). These reversals in conjunction with the increasingly speedy arrival of immigrants have provoked a reaction in the citizenry.

The principal source of information is the Barometers regularly polled by the Centro de Investigaciones Sociológicas (CIS) which since 2000 has included regularly the question of immigration within the range of matters that are perceived as the main problems of Spain (Zapata-Barrero 2009a: 1105-1106). The insertion of the issue in the questionnaire has to be linked to the government of that time, although for mere social circumstances the inclusion is valid because at that time the right-wing Partido Polular was in government (1996-2004) that created an atmosphere where immigration was connected to the negative public opinion (Zapata-Barrero 2009a: 1105). The Partido Popular has traditionally been the political actor arguing about the phenomenon in security terms. An example of this attitude appears in the parliamentarian discourse which claimed that certain groups of immigrants want to impose to the majority of the population a totalitarian or mutually exclusive project (Zapata-Barrero 2008: 125). This sort of discourse, which Zapata-Barrero has dubbed as re-active discourse in comparison with the pro-active discourse and normally espoused by the left – at least in the case of Spain, has modelled the perception of immigrants by the society[1]. Since its appearance from the first time in September 2000, immigration has been steadily perceived as one of the most pressing issues of Spain, becoming since October 2005 the third (Zapata-Barrero 2009a: 1106). Even more striking, there were a few instances in which the matter was considered as the most relevant problem in the country. What makes those cases interesting is the circumstance: that it was a reaction to certain situations and discourses that created a favourable framework in which to securitize the question and to adopt a myriad of policies. On September 2006, up to 59.2 per cent of the Spanish public said that immigration was the most relevant problem in Spain because of the arrival of a large influx of immigrants to the Canary Islands the prior months, reaching the huge number of 4.772 only on August[2]. The grave situation prompted the government to reach bilateral agreements with African countries, which will be explained below, and it pushed the EU for several measures that would crystallize in several joint border management operations (Carrera 2007: 12-13).

Nonetheless, a significant feature in the findings is that overall the Spanish society has an ambivalent relationship towards immigrants. What they perceive as negative is related to the level of entrance and the ‘supposed’ porosity of the border (Zapata-Barrero 2009a). The key issue in the successful securitization of border management in Spain has been the insistence of political actors through the use of speech acts in the perseverance on the importance of the frontier and its control. In a study of the questions posed by other political parties to the government in the Parliament, Sánchez Montijano has observed that the border issue has been asked about constantly since 1996, revolving the majority over governability and management issues (2008: 110). As the securitization theory predicted through the use of speech acts it has legitimized the immigrant question which has allowed to alter the citizens perceptions and equally allowed to decide on policies that otherwise would have been difficult to implement (Zapata-Barrero 2009b: 51). However, it must be highlighted that this process has not only been directed at the local and national level. Equally, the EU and the other member states have a bearing in this process with the implementation of security measures through the European institutions or through direct pressure. The latest large scale regularization process carried out by the Spanish government in 2005, which represented a clear pro-active measure, received a large amount of criticism and reactions from the European Union, which affected the perceptions of the Spanish public opinion in a negative manner (Zapata-Barrero 2009a: 1108).

III. The Securitization of Immigration in Spain: the security policies

Although difficult to conceptualize the policies carried out by Spain because of the multi-layered nature of immigration and its control as it is spread in several layers of governance, for a clarified assessment is it convenient to separate them to observe how the authorities have interacted with the different levels of governance.

III.1. National Level

The awareness of immigration as a problem that can create further difficulties because of a security-based conception is clearly perceived in the legislative area. Spain passed its first immigration law in 1985 as a requirement for acceding the European Communities. Until then, there was no attempt to regulate the flow of immigrants. This situation would remain stable up to the year 2000 where the centre-right government would modify it as more immigrants decided to stay in Spain. The surprising element that hints at the quick securitization process undertaken by the political actors is the successive enactments and modifications suffered by immigration law. While the parliament passed a fairly liberal immigration law based on a pro-active discourse of the issue, the Ley Orgánica 4/2000, de 11 de enero sobre Derecho y Libertades de los Extranjeros, widely known as Ley de Extranjería, it would be subsequently and swiftly overturned and remade with the Ley Orgánica 8/2000 which adopted a backwards legislation which stripped out many of the rights gained by the previous law (Zapata-Barrero 2009a: 1107). But this would not be the last alteration of the legal framework. Sooner than later the government, who had absolute majority at the parliament, made two new modifications: the LO 11/2003 that hardened the expulsion regime as it made easier to expel immigrants that have committed some infractions and the LO 14/2003 which added articles previously deemed unconstitutional by the Constitutional Court because they infringed the legality principle and to introduce the principles and decisions taken at the European Level, explicitly stating the necessity to adapt the national legal framework to the Schengen and Tampere processes respectively. This reality shows the impact of international institutions on the securitization process as the national legal order starts to internalize the security logic which will in the end percolate with the citizenry. The importance of this internalization and institutionalization of the security discourse in immigration must not be understated as even with a government tilted towards a human-rights discourse will not escape the security logic. The current centre-left government has proposed a general modification of immigration law. Although it purports a more benign approach towards the issue, it nevertheless reinforces the tools of control of entrance with the establishment of an informatics system while it expands the instruments of expulsion (Moya 2009: 19-20).

With regards to the measures implemented for managing and controlling the border, there are several. The most important at this level of governance is the Sistema Integrado de Vigilancia Exterior (SIVE), established in 1999 as a response to the continuous flow of immigrants through the Strait of Gibraltar from the African countries. The system comprises the installation of a series of technological advancements by for the detection of irregular activities close to the Spanish coast. Nowadays, there are six posts under this system, all of them places that receive immigrants for its geographical conditions like Fuerteventura, Andalucía, Murcia or Ceuta. Although it is stated that the main function is to clamp down human trafficking, in reality it is an instrument of protection of the internal borders as in the information provided by the Guardia Civil - the law enforcement agency in charge of the system - it is stated explicitly that it is also conceived against drug trafficking and as a means of protecting the European security (Guardia Civil: website). Likewise but not explicitly asserted this system can also work for the treatment of security issues related to border management like terrorism as it is under the Centro de Coordinación Regional de Canarias (CCRC), created by the Orden 3108/2006, a unique centre whose main purpose is to coordinate in a centralized fashion all the agencies, actors and systems that are in the border control issue. Among others the Exterior Service, law enforcement agencies or the customs police and it is in permanent contact with the Spanish intelligence service, the Foreign Affairs and the ‘Sea Horse’ satellite system implemented by the EU (Arteaga 2007). FRONTEX, which will be explained below, also works with the centre. The experience of working directly with border issues under the direction of the CCRC will help the institution to develop its own operational procedures for the protection of the border and to manage a myriad of actors acting in different levels as in this case local, regional, national and supranational organs are involved (Arteaga 2007: 5-6).

III.2. Bilateral Level

Although Spain has had a relevant impact on the communitarization of the European border as a direct consequence of the disappearance of the internal borders by the ratification of the Schengen Treaty, it has also undertaken several measures on its own for tackling the border control issue. The tightening of Ceuta y Melilla’s fence as result of a sudden increase of immigrants attempting to cross the fences surrounding both enclaves; the implementation of SIVE at the coasts of Andalucia and the renewal of the Readmission Agreement with Morocco forced the immigrants in 2005 to look for alternative routes, in this case from the African West Coast. From there the immigrants trying to arrive at the Canary Islands, reaching a record number in one month of 4.722 in August 2006 (Zapata & De Witte 2007: 87). Even though the problem is entirely transnational as it affected the European Union as a whole, as with Malta, Spain made a diplomatic offensive in this front. The Spanish government signed several bilateral treaties of migrant cooperation and re-admission with Nigeria and Guinea Bissau. It will be expanded with similar agreements with Senegal, Mali, Ghana, Cote d’Ivore, Cameroon, Guinea-Conakry and Gambia. These agreements simply give Spain a greater ability to devolve immigrants even from third countries to those countries that had also ratified the agreement. The most crucial feature is the sharing of immigration control between the signatories. The African countries are seen as co-participants in the management of borders, becoming Spain’s new frontiers, and ultimately of the European Union. The consideration for accepting their role as frontier guards is obtaining better resources, the development of development policies and a preferential treatment for their citizens (Asín Cabrera 2008: website). Likewise, the permanent flow of immigrants from the African West Coast to the Spanish coasts, however irregular their arrival, alongside the signing of these international treaties, convinced the Spanish government to develop a comprehensive strategy focusing on Africa as a whole, although focused more on those countries where immigration originates and on those of transit. The result was a wide-ranging policy named Plan Africa 2006-2008. The main objectives of the government are - because they are also present in its successor Plan Africa 2009-2012: the reinforcement of democracy, peace and security and to foster an inclusive immigration policy among others (MAE 2006: 30ff). The practical consequences have been a revamp of the Spanish diplomacy like opening new diplomatic posts. The latter are aimed at the support of the joint police control and naval patrolling operations in conjunction with countries like Senegal or Mauritania (Arteaga 2007: 4).

The main input of this international offensive is the creation of a link between the immigration policies to the exterior actions; the awareness of the importance of managing the exterior borders in order to manage the interiors. As Pinyol points out, the socialist government, as a response to an increasing phenomenon, has fully externalized the immigration policy (Pinyol i Jimenez 2008: 4). This process was started with the former centre-right government when it pushed for the communitarization of certain aspects of immigration in the 2002 European Council in Sevilla. On the whole, this provides a paradoxical situation: despite the fact that immigration requires a transnational and European response, the nation-state still has to manage the security issue with its own capabilities (Arteaga 2007: 4). With regards to Spain, its insistence on linking the external actions with immigration has played a relevant and influential role in the actions taken by the European Union (Pinyol i Jimenez 2008: 4), which at the same time has reinforced the mutual securitization process carried out by the political actors.

III.3 Multilateral Level

The principal outcome from the Spanish policies and actions at the European Union and towards the member states have been the establishment of a series of measures attempting to manage and control the border. The main purpose has been to underline the importance of the external borders of the EU after the disappearance of the internal borders. To realize what happens at the periphery of the Union can reverberate throughout the rest of the states. Thus, a state that has external borders cannot manage them alone; it needs the solidarity and assistance of the rest of states. An inclusive process that it is not only directed towards member states of the EU but equally those states of transit-immigration (Carrera 2007: 7-8). At a pure EU level, FRONTEX is the most visible case. FRONTEX is an European agency created by the Council Regulation (EC) 2007/2004 of 26^th October 2004 and which has as its core mission the coordination of the external borders of the EU of those member states. Although in principle it was attempted to create a common European border police, the reticence of some member states forced the Commission to present an organ with a mixture of intergovernmental and supranational elements, in which member states would keep being responsible of their own borders (Neal 2009). One of the states that pushed further has been Spain and which has made extensive use of articles 7 and 8 of the Council Regulation which requires the formation of an inventory of all the capabilities available for the agency and the provision of support to any member state that in certain circumstances requires the assistance as its external border (Díaz and Abad 2008: 146; Carrera 2007: 20). The result has been the launching of three consecutive joint patrol missions – named HERA - in which several state members provided assistance and where FRONTEX played a relevant role in the coordination and management of the abovementioned operations (Carrera 2007: 20ff). Spain has also had a crucial role in pushing in favour of the approval of Council Regulation 863/2007 (EC) that establishes the Rapid Border Intervention Teams (RABIT) (Díaz and Abad 2008: 146). This Europeanisation of the external borders has allowed Spain to obtain financial resources for the improvement of the external border, being the member state with external border that has benefited most from (Ibidem; Zapata-Barrero 2009a: 1108). But the actions carried out by Spain have not stopped at the EU. Being aware of the importance of third countries in the control of immigration, it has promoted a series of multilateral meetings between the EU institutions, member states and third countries. Most notably the Euro Mediterranean Partnership Conference in Barcelona 2005, the EU-Africa Ministerial Conference on Migration and Development celebrated in Rabat in 2006, the informal meetings between the Mediterranean EU member states in Madrid 2006, the EuroMed Ministerial Conference on Migration in Algarve in 2007. Similarly, it has also participated actively in this area in the II EU-Africa Summit celebrated in Lisbon in 2007, the Barcelona process and the regular meetings held by the 5+5 Dialogue (Zapata-Barrero 2009c: 19; Zapata-Barrero 2009a: 1108; Zapata-Barrero & De Witte 2007: 89; Pinyol i Jimenez 2008: 3).

In general, all the aforementioned measures and policies carried out by Spain offers a complex image in which due to the transnational character of immigration and the inner developments of the EU has forced Spain to work in a multilayered governance framework. However, these measures must be reviewed critically as they poses normative questions affecting on the one hand the human rights of the (illegal) immigrants; especially when they are pre-emptively stopped at the countries of transit, even without reaching the proper EU borders. Another ethical issue is the pressure on states with dire economic and political situations to adopt some sort of security measures - in the eyes of the EU and Spain – for the control of immigration (Zapata-Barrero & De Witte 2007).

IV. Conclusion

Through use of the securitization theory and its main elements this essay has shown how immigration has become securitized in Spain through the impact of political actors in the perceptions of the Spanish public opinion. Noticeably this process has allowed the establishments of policies and tools to control immigration from a security logic percolating it through the institutions and founding a security inertia that even with the arrival of a government with a pro-active discourse has not been able to desecuritize and has kept the matter to a certain extent under the security dynamics. Finally, Spain has had an influential role in the Europeanization of immigration and in realizing the importance of the external borders to all member states and the necessity to have a collaborative effort as they represent not only the borders of the respective countries but of the EU as a whole.

References

Arteaga F., “Las operaciones de última generación”, RIE ARI 54/2007 (2007).

Asín Cabrera M.A., “Los acuerdos bilaterales suscritos por España en materia migratoria con países del continente africano”, 10 ReDCE (2008). Available at:

http://www.ugr.es/~redce/REDCE10/articulos/04MAsuncionAsinCabrera.htm#tres (Checked: 13th January 2010).

Bigo D., “Security and immigration: towards a critique of the governmentality of unease”, 27 Alternatives: Global, Local, Political 63 (2002).

Carrera S. “The EU Border Management Strategy – FRONTEX and the Challenges of Irregular Immigration in the Canary Islands”, CEPS Working Document No. 261 (2007).

Díaz G. and G. Abad, “Migración y seguridad en España: Seguridad humana y el control de fronteras. El caso de FRONTEX”, UNISCI Discussion Papers, Nº17 (2008).

Guardia Civil, Sistema Integrado de Vigilancia Exterior (SIVE) – Introducción. Available at:

http://www.guardiacivil.org/prensa/actividades/sive03/intro.jsp (Checked: 13th January 2010).

Huysmans J., “The European Union and the Securitization of Migration”, 38:5 JCMS 751 (2000).

MAE, Plan Africa 2006-2008 (2006). Available at:

http://www.maec.es/SiteCollectionDocuments/Home/LIBROPLANAFRICA.pdf (Checked: 13th January 2010).

- Plan Africa 2009-2012 (2009). Available at:

http://www.casafrica.es/casafrica/Inicio/PlanAfrica2009-2012.pdf (Checked: 13th January 2010).

Moya D., “La reforma de la Ley de Extranjería”, RIE Documento de Trabajo 20/2009 (2009).

Neal A.W., “Securitization and Risk at the EU Border: The Origins of FRONTEX”, 47:2 JCMS 333 (2009).

Pinyol i Jiménez G., “La política de inmigración española como un nuevo instrumento de acción exterior”, Observatori de Política Exterior Europea Nº 9 (2008).

Sánchez Montijano E., “La politización de la inmigración en España”, in: Zapata-Barrero R., E. González and E. Sánchez Montijano, El discurso político en torno a la inmigración en España y en la Unión Europea (2008).

Sasse G., “Securitization or Securing Rights? Exploring the Conceptual Foundations of Policies towards Minorities and Migrants in Europe”, 43:4 JCMS 673 (2005)

Sorroza A., “Inmigración y Unión Europea”, RIE ARI Nº 64 (2007).

Zapata-Barrero R. & N. De Witte, “The Spanish Governance of EU borders: Normative Questions”, 12:1 Mediterranean Politics 85 (2007).

Zapata-Barrero R., “La política del discurso sobre la inmigración en España”, in: Zapata-Barrero R., E. González and E. Sánchez Montijano, El discurso político en torno a la inmigración en España y en la Unión Europea (2008).

Zapata-Barrero R., “Policies and public opinion towards immigrants: the Spanish case”, 32:7 Ethnic and Racial Studies 1101 (2009a).

- Fundamentos de los discursos políticos en torno a la inmigración (2009b).

- “Political Discourses about Borders: On the Emergence of a European Political Community”, in: Lindahl H. (ed.), A Right to Inclusion and Exclusion? Normative Fault Lines of the EU’s Area of Freedom, Security and Justice (2009c).

[1] This is what Sasse has named as ‘security-based’ and ‘rights-based’ approaches to the matter (2005: 678).

[2] The crisis was presented as “an unprecedented humanitarian crisis in the whole Europe” and as “a massive invasión of illegal immigrants” (quoted in Carrera 2007: 12).

Due Process in the Context of Transitional Justice

noreply@blogger.com (bordesinremedio) — Fri, 13 Nov 2009 18:45:00 +0000

Transitional justice has only recently become a field of its own. Despite the novice character of the field, it has expanded in an increasingly larger area in which a plurality of actors is in constant participation. In the same vein, transitional justice comprises an intricacy of elements that are closely intertwined: political, societal and legal. To analyze them in their entirety would be a herculean task that would go beyond the purpose of this essay. The purpose is to inquire in a specific facet within the normative framework and which reverberates across the aims of transitional justice. The right to due process is a central tenet of the rule of law and of any Western democracy, in particular of the liberal character. Its importance is evidenced by the fact that it is enshrined by the most relevant human rights treaties including the International Covenant on Civil and Political Rights (ICCP) specifically in its Article 14, among others. Nonetheless, it is posited that in times of transitional justice the right to due process must be interpreted according to the exceptional circumstances in which the trial is being carried out. The burden that complying carries regularly with the requisites of due process during ordinary times can, rightly so, impair a correct healing of a given society under a period of transitional justice. Thus, a plausible response to the dilemmas posed by that is to establish a lower threshold or the employ of alternate methods. Part I roughly analyzes the concept of transitional justice. For a correct understanding of the conditions surrounding the right to due process, it is essential to put in proper context what constitutes transitional justice and its objectives. Part II consists of two sections, a first one dedicated to developing a brief overview of the rule of law and the second one drawing the contours of the right to due process. Part III studies the problems with the right to due process related to a transitional justice background. Part IV is none other than the conclusion.

I. What ‘transitional’? What ‘justice’?

The fact that transitional justice is constantly evolving as a maturing field – and as a buzzword – does not exactly spell out to what it is referring to. The notion of transitional evokes a movement from one state to the other. But at the same time it conveys the assumption that a society is stalled in a particular moment and now is moving elsewhere. This is misleading. Several scholars have pointed out the deceptiveness of such thoughts. Any society is in continuous transformation, it is in transitional condition as it never stays the same[1]. It is irrelevant if these changes are for better or for worse, the fact is that no society is frozen within a certain setting. Hence the lack of clarity to what the transitional is related to.

The concept of justice equally suffers of an even bigger definitional problematic. It is one of the main philosophical and moral ideas of humankind and for that reason there have been bitter arguments over its content and delimitations.

Nonetheless, taken together transitional justice has an explicit content and it is circumscribed to a certain state of affairs. Transitional refers only to those societies changing to a liberal democracy direction after a period of authoritarianism. Justice has too specific a meaning. The UN contributes a concept of justice closely connected to the abovementioned definition of transitional justice. For the Organization, justice is

an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs. Justice implies regard for the rights of the accused, for the interests of victims and for the well-being of society at large. It is a concept rooted in all national cultures and traditions and, while its administration usually implies formal judicial mechanisms, traditional dispute resolution mechanisms are equally relevant[2].

Then, transitional justice can be defined as “a response to systematic or widespread violations of human rights. It seeks recognition for victims and to promote possibilities for peace, reconciliation and democracy. Transitional justice is not a special form of justice but justice adapted to societies transforming themselves after a period of pervasive human rights abuse”[3].

What is occasionally omitted by certain authors is a description of the surroundings on which transitional justice happens, details that influence the possibilities of a successful process. These countries do not only come from a situation of moral bankruptcy and more often than not with the large shadow of the former regime hovering above them but also from a dire economic situation: rampant corruption, lack of resources, shabby infrastructure, and so forth. All these make the process harder as hard choices have to be made that can hamper the purposes of transitional justice[4]. Similarly, these purposes encompass “a multitude of discrete, though overlapping, and often conflicting themes”[5]. Clark has at least found six objectives; all of them interrelated to greater or lesser extent: reconciliation, peace, justice, healing, forgiveness and truth[6]. It is beyond this essay to divulge them but it is worth indicating that the right to due process for those people in charge of or responsible for gross violations of human rights have an effect on all of them. They are intertwined. There is no peace if there is no justice and justice is necessary for achieving the truth and subsequently to heal the wounds so there can be forgiveness and reconciliation. Before delving into the right to due process, it requires a step back. One central aspiration of transitional justice is to restore the rule of law. And because due process is subsumed in the rule of law, it is a precondition to analyze it before delving into due process.

II. The rule of law and its meaning in regards with the right to due process.

The rule of law is surrounded by the same uncertainties concerning transitional justice. Whereas transitional justice is at least confined to a particular situation in order to give it a workable meaning, the rule of law has varied faces and at the same time the existing different legal traditions put the accent over one trait upon another. In this regards, it is worth noting that many authors have done the enormous task of coming with a definition and with an explanation on what it consist of. Unfortunately, this would go well beyond this essay. However, despite the enormity of the rule of law, it is possible to locate certain characteristics that shed light over its importance and how crucial it is for countries that just came out from a long history of abuses to have it.

What underpins the rule of law is the idea of limitation. The rule of law came into being predominantly during the advent of liberal democracies during the eighteenth and nineteenth centuries. It is a barrier against untamed power. Under its premise, society must be a rule-governed enterprise. Power ought to be channelled through rules and norms. There cannot be arbitrariness or abuse of power. Thus, it has a positive and negative mandate. It establishes how a government must exercise its authority; how it should restrain its dominance through predictability and certainty. At the very same time, as a corollary of the concept, it promotes certain rights indispensable for a correct functioning under the rule of law.

Among those rights benefitting individuals, it comprises the right to a due process. It is not included in the basic core of human rights, but it illustrates splendidly how the rule of law operates. Due process is simultaneously a limit to power and a guarantee for the individual. For practical reasons of time and space, the right to due process used in this essay is taken from the Spanish Constitution. The choice of this text is due to the fact that its redaction was heavily influenced by the several human rights covenants existing at the moment of its enactment. Article 24.2 asserts that anyone has the right to a judge predetermined by law, the defence and assistance by a lawyer, to be informed of any charge against him, to a public process without unlawful delay and with all guarantees, to use any piece of evidence necessary for the defence, to not declare against oneself, to not confess guilt and to be innocent until proven guilty. The scope of the entitlement plainly reduces the government’s space in manoeuvring, and imposes a pro-active duty to demonstrate that someone is guilty. Consequently, “due process is designed in part to protect the innocent from punishment and prevent excessive punishment of the less guilty. But due process is also what gives legitimacy to trials and convictions”[7]. Under normal circumstances of a democracy running its usual course, due process reflects the respect for human rights and of a functioning democracy. It is true that it makes it harder to punish a criminal but it similarly permits the innocent to present their case fairly and to avoid an unwarranted sentence. Unfortunately, this presupposes a stringent and expanded interpretation of due process, something that can oddly enough affect negatively a society in transitional justice phase.

III. The conflictive nature of due process when applied during transitional justice.

Transitional justice refers to an extraordinary moment of any given society. This exceptionality is derived from the circumstance that the society is attempting to cut ties with the former regime so it can begin with a new liberal democratic society. It is backward-looking and forward-looking at the same time. It is a paradoxical situation where institutions are set up but are concurrently in a sui generis status. Take for instance the use of legal instruments which are according to Teitel

between the past and the future…between retrospective and prospective. Transitions imply paradigm shifts in the conception of justice; thus, law’s function is inherently paradoxical. In its ordinary social function, law provides order and stability, but in extraordinary periods of political upheaval, law maintains order, even as it enables transformation[8].

However transformative legal instruments can be, not all are equally effective. Part of them can obstruct the restorative process. This inadequacy stems from the uniqueness of the period encompassing transitional justice. During this process a society is not only recovering from ordinary crimes, but from exceptional crimes as well. In the former state of affairs, a society was massively affected by gross violations of human rights. The state is frequently the main culprit as those committing and planning the wrongdoings are part of or are aided by the state. It could be a whole society – e.g. the Nazi Germany against the Jews – or one part of the society against other – e.g. Rwanda – or perhaps the suffering was inflicted mainly upon a minority – e.g. Muslims in Bosnia. What characterizes this situation is the active participation of a great segment of the fabric of the society in continuously abusing a relevant portion of the population. An involvement of this magnitude supersedes those legal responses that underline the rule of law in ordinary times. Equally, the other outcome is the presence of a whole social stratus being affected by the perpetrators. A massive crime generates massive suffering. It comes to no surprise that those who have endured exceptional pain (morally and physically) demand recognition of their suffering during transitional period: an acknowledgement of the negative experiences that disturbed their social condition during the former regime, as individuals but also as a collective[9]. Here enter the demands of justice. If there is no treatment of the gross violations committed during the former regime, there is no chance of reconciliation and the chance of moving forward because the wounds of the past haunt them. The exceptionality of the situation creates a requirement of a contextual justice especially elaborated during the transitional period. “What is deemed just is contingent and informed by prior injustice… legacies of injustice have a bearing on what is deemed transformative”[10]. In this context, the concept of justice shoulders a great importance because it directly leads to dealing with past injustices. As Stahn asserts, there is an intimate relationship between “restoration of justice and security in post-conflict situations”[11]. A failure in bridging the past atrocities with the establishment of a healthy society can lead to the reversal of the transitional justice, but by another collective. To bring justice is to choose one model depending on how backward or forward-looking it is: retributive, deterrent and restorative[12]. Irrespective to which model one leans to, there is a common attribute: prosecution of the perpetrators; normally through trials. And that is where due process comes into action. While it is true that there are other means of punishment, it has generally been understood as a necessary element of any transitional justice to process the prosecution of those responsible for egregious violation of human rights[13] bearing in mind the impact of an existing possibility of duty under international law to prosecute[14].

To begin with, prosecution of criminals through criminal law entails the assumption of individual, criminal liability. This is problematic. Under due process, anyone accused of wrongdoing must be proven guilty beyond certainty. That imposes an extra burden for instance in cases where the prosecuted formed part of the machinery of the state where the responsibility can be diluted except in case of top leadership. To punish them according to a strict understanding of due process could be equated to punishing under criminal law for political liability, eventually challenging the rule of law[15]. Equally, the evidences enough for proving an accused guilty are stringent. A lack of sufficient evidence along with the high threshold of the evidentiary requirements “of due process may make it not only generally more difficult to convict, but also particularly difficult to convict those who are most culpable”[16] because they were in a position to take advantage of the resources available, they could get rid of the evidences and because of their political position. By the same token, to make a veritable case against the perpetrator and demonstrating that he was guilty in taking part of the crime beyond reasonable doubt, is expensive[17]. Each trial requires time and resources to convincingly attribute the offence to someone that can be quite an issue in underdeveloped countries that are forced to spend their scarce resources on the trial of criminals while the victims of the atrocities are victimized for a second time as their basic needs are not fulfilled. Even more damaging, the scarceness of resources together with the lack of evidences and the requirements of due process force the prosecutors to be selective in their efforts. The mass character of the crimes does not help either. This puts the prosecutors in the dilemma against whom to press charges. The upshot is twofold: on the one hand, not all victims will be satisfied as not everyone who tortured, raped or murdered will be judged. On the other hand, the most culpable will not be targeted because those lower-level offenders are easier to prosecute under due process requisites[18]. In a similar stance, Kritz adds the political prism as he writes that “prosecution of every single participant in the planning, ordering or implementation of the atrocities in question – not to mention all those who collaborated with them – would be politically destabilizing, socially divisive, and logistically and economically untenable”[19]. The phenomena of “limited criminal sanction” come then to no surprise. This concept is espoused by Teitel, to whom this

constitutes compromised prosecution processes that do not necessarily culminate in full punishment…Depending on just how limited the process, investigations may or may not lead to indictments, adjudication, and conviction. Convictions are often followed by little or no punishment. In transition, the criminal sanction may be limited to an investigation establishing wrongdoing[20].

She ascribes this situation to the difficulties in subsuming systemic wrongdoings during the former regime in individual criminal liability. In other words, that the limited criminal liability is based on a thorough understanding of the complexities of crimes of a mass scale[21]. Although it is a valid assertion, the influence of due process in conjunction with the dire economic situation of a country in transitional justice also cannot be discarded.

Another inconvenience is the search of truth of past egregious violations. A trial’s primary role is in elucidating the defendant’s guilt. This is a direct consequence of due process demands of knowing under what charges one is being prosecuted. This restricts the story to the specific accusation brought up by the prosecutor. Truth then becomes a legal truth which covers only a small proportion of the narrative. Evidences that would aid in construing the story of past abuses are not deemed relevant if they are not related to the charges. They are discarded and not included in the discourse. Needless to say, this affects the victims as there is no space for expressing the abuses committed to them.

Last but not least, the turn to a legal response for former abuses has the drawback of the accused taking advantage of the process, and subverting further the right to due process[22].

IV. Conclusion

This essay noticeably exhibits the inconveniences of using a guarantee designed for ordinary times and essential in democracy as due process in extraordinary times and its inadequacy when coping with mass crimes where the state as a whole or a relevant part of the community has participated in their commission. If prosecution remains as one of the primary tools as a response in transitional justice, it is advocated a sui generis reading of due process. This is not tantamount to a complete disrespect of the human right, but an attempt to take victims into consideration. Based on Teitel’s, it is submitted that this distinctive reading does not endanger the foundations of the newly liberal democracy because, as its name suggests, transitional justice refers to a specific moment. A community is trapped between two regimes, thus the transitional period is by definition limited, which gives rise to a contextual notion of justice based on past grievances but with the purpose of remedying the victims[23].

[1] M. Freeman and D. Djuckic, “Just Post Bellum and Transitional Justice” in C. Stahn & J.K. Kleffner (eds.), Just Post Bellum – Towards a Law of Transition from Conflict to Peace 213, 214 (2008).

[2] UN Doc. S/2004/616, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, Report of the Secretary General, 4 (2004).

[3] Definition given by the International Center for Transitional Justice. Available at http://www.ictj.org/en/tj/ (last time checked on 20th October 2009).

[4] See S.W. Daniel Han, “Transitional Justice: When Justice Strikes Back-Case Studies of Delayed Justice in Argentina and South Korea”, 30 Hous. J. Int’l L. 653, who argues in favour of delayed transitional justice, giving priority first for the economic development of the country.

[5] P. Clark, “Establishing a Conceptual Framework: Six Keys Transitional Justice Themes” in P. Clark and Z.D. Kaufman (eds.), After Genocide – Transitional Justice, Post-Conflict Reconstruction and Reconciliation in Rwanda and Beyond 191, 191 (2008).

[6] Id., 195-204.

[7] M.J. Aukerman, “Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice”, 15 Harv. Hum. Rts. J. 39, 49 (2002).

[8] R. Teitel, “Transitional Jurisprudence: The Role of Law in Political Transformation”, 106 Yale L.J. 2009, 2014 (1996-1997).

[9] F. Hadelmann, “Another Kind of Justice: Transitional Justice as Recognition”, 41 Cornell Int’l L.J. 675, 678-680 (2008).

[10] Teitel, op. cit., 2014.

[11] C. Stahn, “Justice Under Transitional Administration: Contours and Critique of a Paradigm”, 27 Hous. J. Int’l L. 311, 315 (2004-2005).

[12] See Clark, op. cit., 197-198.

[13] See R. Teitel, “Transitional Justice Genealogy”, 16 Harv. Hum. Rts. J. 69, 72-74 (2003).

[14] See D.F. Orentlicher, “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime”, 100 Yale L.J. 2537 (1990-1991).

[15] Teitel, op. cit., 2038.

[16] Aukerman, op. cit., 51.

[17] Id. 52.

[18] Id. 61.

[19] N.J. Kritz, “Coming to Terms with Atrocities: A Review of Accountability for Mass Violations of Human Rights”, 59 L.& Cont. Prob. 127, 138-139 (1996).

[20] R. Teitel, “Transitional Rule of Law” in A. Czarnota, M. Krygier and W. Sadurski (eds.), Rethinking the Rule of Law after Communism 279, 281 (2005).

[21] Id. 282-283.

[22] Teitel, op. cit., 848.

[23] Teitel, op. cit., 2013-2014, 2019-2020.

Nothing new under the sun

noreply@blogger.com (bordesinremedio) — Fri, 30 Oct 2009 09:18:00 +0000

Ya que Neoprogs se ha remodelado, creo que es una buena ocasión para celebrarlo con la entrada de otro post largo y aburrido. Espero participar más activamente en la dinámica.

I.

War has been a constant throughout history. It has been a recurring tool used by several actors in order to achieve power[1]. As Clausewitz famously stated, war “is a continuation of political intercourse with a mixture of other means”[2]. This circumstance has unsurprisingly provoked the constant necessity of tackling the phenomenon, whether disapprovingly or accepting it as a matter of life. Likewise, this permanence of war has allowed appreciating certain common traits. For Neff, these traits represent the “hallmarks of war” which has allowed the identification of a “body of legal ideas about war as such”[3]: collective and public character, against a foreign state, war as a rule-governed enterprise, and as marking off peace from war[4]. But these characteristics are a product of an empirical analysis of war not a product of a theoretical or legal systematization. Thus, the objective of the following paragraphs is to compare if these steady traits are present in the just war tradition and in the UN Charter.

The just war traditions

War as a collective enterprise. Even though the just war prescriptions are directed towards individuals, war is seen as a public institution. Not anyone could wage war against another, only certain people could do it. This requirement is known as the auctoritas principle. According to this principle, a political community can go to war “only if the decision has been made by the appropriate authorities, according to the proper process, and made public, notably to its own citizens and to the enemy state”[5]. Private individuals were not allowed to initiate a war, only those rulers with the appropriate competence could as they had superior rights[6]. Because the just war theorists believed in the inherently sociability of human beings, they considered the existence of government as an instrument which permits to a given collectivity to reach certain goals as crucial[7].

This emphasis on the public character of war is strengthened by the justa causa principle. Not any claim was valid for waging war, it could only be justified by claims of legal validity[8] and normally those were the “protection of innocents within its borders […] and […] any violation of its […] political sovereignty and territorial integrity”[9]. Accordingly, only claims affecting the community and its well-being were considered as a just cause. It is worth repeating, that even though the just war traditions were directed to individuals and to a single unitary unit encompassing a whole community, the two aforementioned principles required war to be a public and collective enterprise as only certain people entrusted with public duties could wage war and for public causes.

Against the “other”. A war always opposes two sides; it pits one’s demands against someone else’s. As stated by Neff, it has to be a foreign state or political entity, not any actor is included[10]. In these regards, just war traditions fall easily within this trait. Justa Causa is the most obvious case as the claims for going to war are of a political nature or as a response to violations upon a given community. Neff provides a good illustration with the war in defence of the Christian world, whereby two distinctive polities clashed as well as the reconquista where the Spanish Catholics waged war against the Muslims living in Spain at that time[11].

Law’s empire. Wars require rules. Despite the fact that war could be considered as an antagonist of law, because of its collective character the presence of rules is needed in ordering the phenomenon. In this sense, the just war traditions heavily regulated war, before, during and after. The very same just war traditions were designed to regulate when a community could go to war, the ius ad bellum. Equally, it states how to waged war, ius in bellum, which individuals could participate, which ones could and could not be considered objectives and even to which extent military force could be used; and although just war theorists focused mainly in when and how to manage war, it is possible also to find traces of just post bellum resolutions[12]. Whatever the deficiencies, it did regulate profusely war.

Peace/War. As shown by Neff, it is a recurrent feature from diverse societies to mark a division between peace and war[13]. Now, when applied to the just war traditions, it is harder to grasp such stark distinction between both spheres. In this framework, war is seen as law-enforcement tool[14]. War is used as a last resort instrument. Only when the previous mechanisms have proven ineffective, resorting to war is allowed[15]. This conception is derived from the very same notion of just war, which implies that only one side is acting ‘justly’ in order to correct the deviating behaviour of the other side, meaning that the basic bonds remain intact. Consequently, the same norms that apply during peace time are also applied during a conflict[16].

However, in my opinion it is true only to a certain extent. Maybe there is not a rigid barrier between times of peace and times of war, but the just war traditions’ attempts to regulate war also displays an internal recognition of the circumstances on which war is handled. When describing how to conduct it, it does establish a distinction between peace and war times. It introduces rules that do not apply during peace times. Thus, there is a set of rules, however small[17], that can only be applied during war times and that stop being in force when the war has ended. Even within the just war traditions, where the separation is the blurriest, there is a minimal distinction.

One Charter to rule them all

War as a collective enterprise. Undoubtedly, “war”[18] is undertaken as a collective enterprise. This is more evident in this case than within the just war traditions because the latter addressed first and foremost upon the individuals, even though it retained a collective character as war could only be waged by those with auctoritas. The UN Charter is the constitutive document of an international organization which is composed by states, who are subjects representing diverse polities. Furthermore, the main organ within the UN entrusted with the objective of maintaining international peace and security is the Security Council, which is not as representative as the General Assembly – it is composed by fifteen states – but is equally collective. Article 25 clearly establishes the main purpose of the SC which is the maintenance of international peace and security. Thus it is instructed to achieve that on behalf the international community. It is an international collective enterprise. This is confirmed by the fact that the Charter allows a right to self-defence not only individually but also collectively[19]. The security system enshrined by the UN Charter is primarily a collective effort.

Against the “other”. As with the just war traditions, the UN Charter confronts anything that goes against the maintenance of international peace and security. Primarily, it was conceived against states endangering international affairs, mainly through a literal interpretation of peace and security as an absence of war. But this has changed. Especially after the end of the cold war, the term has been expanded to include a positive conception of security and peace, meaning that not only the absence of war is enough but disarmament, decolonization, among others as well[20]. Consequently, it does not go alone against a state breaching the international peace and security; it goes against certain notions, as well as other political entities.

Law’s empire. The UN Charter tightly regulates the use of force as it is banned as a general rule and it is allowed in a few instances. Currently, the Security Council holds a quasi-monopoly over the use of force. According to Article 42 - after the SC has determined that there is a situation endangering the international peace and security - it can undertake any necessary action, including the use of force. States, on the contrary, can only resort to the use of force in case of self-defence, according to the (in)famous Article 51. Thus, the UN Charter regulates war but only partially, it is circumscribed to the ius in bellum, when to resort to war. This is different from the just war traditions which also regulate how to wage war. But that is because it is regulated heavily in a different set of norms: in international humanitarian law. The only exception is the law of neutrality[21].

Peace/War. The founding of the UN, and of what was established in the Charter, marked a return to some basic assumptions of the just war traditions. The most relevant feature was a renewed conception of the state of peace as the basic condition of international relations[22]. As Neff points out, the UN Charter rejected the basic assumptions of positivists from the nineteenth century who viewed war as a fact of life as states tried to compete with each other aggressively[23]. With peace being the normal condition of international affairs, any disturbance is seen as a breach in the usually pacific state of foreign affairs. As a result, the actions that the UN carries out are perceived as being law enforcement in nature, to restore the situation to the previous state of peace[24]. The logical effect based on that assumption is the lack of a proper distinction between times of peace and war. Similarly to the just war traditions whoever breaches the Charter is in the “unjust” side as the Charter describes exhaustively when to resort to war, and otherwise is a violation of the UN Charter and of the state’s obligations toward it. This means that the principles and purposes that overview the Charter remain on place. That is, that the Charter is still applied when there is an outbreak. The bonds and values enshrined on the Charter continue to exist; there is no appearance of a completely distinctive set of norms for when the use of force is used.

Now, this is true only to a certain extent. In most of the cases the line between peace and war will be blurred or non-existent, but there will be cases in which the presence of war will make both states distinctive. This does not imply that the UN Charter will stop being in force. Quite the contrary, it will continue to be applied. But as highlighted earlier, there is a set of norms, rules and principles that come into force when there is a war situation. In other words: international humanitarian law, because it embodies and assumes an objective conception of war[25]. That is to say, it comes into action when there is according to the articles a situation resembling war. This set of rules only functions intermittently and temporarily. Accordingly, there will be occasions in which there will be a distinction between both states, however minimal.

II.

The rise and fall of the state[26]

In the outlook of both situations, the differences between the “war as a state policy” versus “new wars”, due to change of circumstances, seem significant; in particular if the material aspects of both are compared. The crucial distinctive feature is the relevance of the state. In Neff’s account, the state is its pinnacle of strength and power. The nineteenth century embodies its splendour. In Kaldor’s description, the state still exists but is a ghost of its former self. Here, the state is unable or has lost the capacity to control its own territory. This can occur for many reasons: an ineffectual government ridden with corruption, mismanaged and under a great amount of pressure by the impact of globalization. Likewise, the inability to have an effective state is heightened by sectarian fights ravaging the infrastructure, towns and so forth. These contrasting situations greatly influenced – and still influence - the handling of war.

First, in the “war as a state policy”, war is conducted between states; interstate fight is the paradigmatic condition. This is in stark contrast with the “new wars”. The state disappears from the scene and it is overtaken by non-state actors. Even the state becomes one of the many factions battling in the arena. Now the war is an internal and transnational condition. As a result of this change of paradigm, the traits of war adjust in every aspect. The military army, with its centralized command, bureaucracy, professionalism and heavily armed, yield to scattered groups, where there is no formal hierarchy, where there are untrained and where being a combatant is only one of their many faces.

However, these superficial divergences can obscure the fact that both types of war are of the same nature but only quantitatively dissimilar. That human condition is difficult to modify. Take for instance the goals of war. As Neff explains the objectives during the “war as a state policy” was purely political. There was no room for other sorts of influences. The war was carried out on the basis of cold, calculated, and rationalized interests, as a means of maximizing their power. There was no special animosity against the other counterpart when pursuing the objectives. Compare this with the “new wars” as presented by Kaldor, where identity politics hover all over the roaring combats. Utilitarianism is substituted to national, ethnic or religious politics. It is not merely a quest for power, but equally a moral duty and a hatred for the “other”. These two images cannot depict a stark contrast between both, but it fails to exhibit the entire film. Already during the nineteenth century wars were waged for identity politics. It is the century of romanticism and nationalism. States increasingly resorted to war alongside policy reasons as a sense of national sentiment. This is reinforced by the fact that occasionally armies were aided by civilians who wanted the best for their motherland and fought remorselessly[27]. This group of people does not differ much from present-day combatants. The only real separation is that the goals are varied: not only the motherland but religious or ethnic causes are also at stake. But the peculiarity is the active participation of organized-crime groups that profit from war and for who war is not seen as a means for end, but as an end in itself. That is the most remarkable feature of these “new wars”.

Likewise, the presence of non-state actors already during the nineteenth century demonstrates that they are not a new phenomenon. What has changed is the intensity of their activity, and only in places where the state is weak enough so as to have a proper monopoly of violence over the territory. Another similarity is how they wage wars. While it is true that the tactics and the armaments employed in both sorts of wars are not equal, the results are similar. Even though there were attempts to regulate the exercise of war – and there were undoubtedly regulations concerning it – reality was messier. As with the “new wars”, the distinction between the public and private sphere was not as sharp as it should be as the way the armies waged war also affected greatly the civilians. Like with the identity groups that expel civilians different from them in order to gain control over the territory, the fact that the “idea of total war against populations was never thoroughly drained”[28] from that period meant that the whole population was held responsible during the war. The only difference between both types of wars was that the state was using this tactic mostly derived from policy and not for ideological reasons. It was not a mean and an end itself (yet). It was mostly a matter of degree. The greatest distinction is the existence of neutrality during the nineteenth century, and what fits within the framework of war as policy. If the war is waged for identity reasons, there is no space for neutrality because even if they are not interested in the fight, in the eyes of those groups combating they are wrong because of their identity and it marks them as enemy. Neutrality becomes outdated.

Overall, what distinguishes both eras is not that different. As has been mentioned, on the surface the distinctions look vast. A state and a guerrilla for example are worlds apart. One epitomizes a whole polity, the other maybe a fraction of a fraction of a group. But when handling war, the image is not apparent. It becomes a matter of gradation, of quantity. What stands out is that during the nineteenth century war was treated amorally in those occasions where ideological motives were not part of the decision-making process. War was one of the many options that a state could pursue in order to gain power. In the “new wars”, war is not only an option, but it is a means through which they can pursue their goals. War has become a moral duty, however deviated.

Back to basics?

To compare the just war traditions according to Neff with Kaldor’s cosmopolitanism seems like a futile exercise as they represent two different eras with nothing in common but a thirst for violence. Looking closer, however, there are elements that are similar. These similarities are more pronounced on an ontological plane. These are three specifically: the appeal to universalism, the law-enforcement approach to war and its offensive nature

What differentiates the just war traditions from subsequent frameworks dedicated to cope with war is that it is directed to individuals. As Neff writes, the strong natural-law influence in the just war traditions meant that the rules dealing with this issue addressed individuals, not states[29]. The same occurs with Kaldor’s approach. In her description, she argues in favour of a humanist universalist stance whereby the civil society is the central element in around which her argument revolves. However, it is not only directed to the individual, it goes beyond it and the state. It is a calling for civic values[30] that have to be spread by NGOs, collectives, international organizations, and so forth. It is an inclusive attitude. It could be seen as an update of the natural-law universalism from the Middle Ages[31].

The just war traditions considered peace as the given state of affairs. A violation of peace was seen as an exception that ought to be punished and solved. The corollary was the fact that the ties that bond the states together continued to subsist during the conflict. The commission of a crime was a rupture of peace and consequently it had to be restored[32]. This law enforcement mind-set blurred any distinction between peace and war as the same rules were applied before, during and after the conflict. Kaldor’s cosmopolitanism reflects the same but with different (secular) values[33]. A recurrent condition of these “new wars” is a brutalization of violence, aimed predominantly against civilians. These actions lead to massive violations of human rights which is the condition that ties the warrant parties. The request for a stronger response by the international community in order to avoid human rights violations, not only war crimes, presupposes a permanent state of peace in which human rights are respected and promoted[34].

Another interesting feature of the just war traditions was its offensive nature. They were undertaken to undo an unjust situation. They were never taken in self-defence, as it was considered egoist[35]. Cosmopolitanism requires a pro-active stance as well. It compels stopping whatever armed conflict threatens human rights, deploying peace enforcement operations, and the reconstruction of the state from bottom to top among other actions. As with the just war traditions, there is an unjust situation that must be put to an end.

These conceptual similarities do not fade away when comparing the specific characteristics that adorn the just war traditions with Kaldor’s cosmopolitanism. As emphasized by Neff, if a war was to be considered as just it had to fulfil the five criteria developed by the scholars: auctoritas, personae, res, justa causa, animus[36].

With regards to the authority, Kaldor put the onus over the international community, which has the right/obligation to act when human rights are violated. Certainly, the mention alone of the international community does not solve the conundrum, as it is vague enough and could include potentially everyone. There is no clarity in knowing who has the authority to decide. Nonetheless, she has confined the authority in the Security Council and if the organ is blocked or unable to proceed, she advocates certain rules that would allow third states to perform[37].

Cosmopolitanism seems mute over which people can participate during combats, but it can be identified if one reads closely. “New wars” are characterized by a confusion of the military and the society where civilians take arms but do not differentiate from other civilians. On the other hand, those who have to stop the mass atrocities are the professional armies of the states taking over the situation of those soldiers lent to the UN for peace enforcement operations.

Res would be the continuous violation of human rights, the casus belli. This would be accompanied with the just causa in which the legal claim is the obligation of states and international organization to prevent and to halt human rights violations[38].

Finally, a cosmopolitan outlook requires the existence of an animus, the rightful intention when acting. Those who participate in petering out the situation in places suffering “new wars” must do it because they want to uphold human rights and to reconstruct the state. If cosmopolitanism is a humanist approach, then the assistance is provided because those suffering are considered as equals.

III.

In light of the aforementioned, the just war doctrines more or less fit the hallmarks of war. The only clear divergence is in the peace/war distinction. A similar conclusion can be held regarding the UN Charter.

Kaldor’s “new wars” do not differ much from the “war as state policy” as described by Neff. The differences are quantitative more than qualitative. The main qualitative divergence is in the use of war as a means or as an end in itself according to Kaldor’s characterization.

Likewise, the cosmopolitan approach significantly resembles the just war traditions as it is similar ontologically and it does fulfil to a great extent the criteria that delineate a just war.

[1] H. Morgenthau, Politics among Nations 11 (1973, 5 ed.). Cited in K.N. Waltz, “The Origins of War in Neorealist Theory”, XVIII:4 J. Inter. H. 615, 616 (1988).

[2] As quoted in M. Sheehan, “The changing character of war” in (eds.) J. Baylis, S. Smith & P. Owens, The Globalization of World Politics 210, at 213 (2008, 4 ed.).

[3] S.C. Neff, War and the Law of Nations 15 (2005).

[4] Id. 15-29.

[5] B. Orend, War and International Justice: A Kantian Perspective 49 (2000) (Emphasis added).

[6] A.J. Bellamy, Just Wars – From Cicero to Iraq 39 (2006) and M. Taghi Karoubi, Just or Unjust War? 65 (2004).

[7] Id. 38.

[8] Neff, op. cit. 50.

[9] Orend, op. cit., 49.

[10] Neff, op. cit., 18.

[11] Neff, op. cit., 53, 56.

[12] See R.P. DiMeglio, “The Evolution of the Just War Tradition: Defining Just Post Bellum”, 186 Mil. L. Rev. 116 (2005) and Neff, op. cit., 66-68.

[13] Neff, op. cit., 26.

[14] Id. 57.

[15] Bellamy, op. cit., 38.

[16] Neff, op. cit. 57-58.

[17] Id. 65.

[18] Since the inception of the UN Charter, war is proscribed, literally and literally. As stated in Article 2.4., states shall refrain in their international relations from the threat or use of force. Consequently, from now on the Charter refers euphemistically to war as use of force.

[19] Neff, op. cit. 326.

[20] R. Wolfrum, “Article 1” in (ed.) B. Simma, The Charter of the United Nations: a commentary 37, 41 (2002, 2 ed.).

[21] See among others Article 25 UN Charter.

[22] Neff, op. cit., 316.

[23] Id.

[24] Id. 325.

[25] For the meaning of objective conception see Neff, op. cit., 172ff.

[26] The arguments drawn from Kaldor’s book New & Old Wars (2007, 2 ed.) are from chapters 3, 4 and 5. Similar case with Neff with chapters 5 and 6.

[27] Neff, op. cit., 206.

[28] Neff, op. cit., 204.

[29] Neff, op. cit., 56.

[30] Kaldor, op. cit., 187.

[31] As she states: “the rights of individuals supersede the rights of states, and that, therefore, international law that applies to individuals overrides the laws of war. In other words, jus in pace should not be suspended in wartime.” in M. Kaldor, “From Just War to Just Peace” in M. den Boer & J. de Wilde (eds.), The viability of human security 21 (2008).

[32] Neff, op. cit., 57-58.

[33] See Kaldor, op. cit., 21.

[34] Id.

[35] Neff, op. cit., 60-61.

[36] Neff, op. cit., 49-52.

[37] Kaldor, op. cit., 29.

[38] Kaldor, id., 21.

Don Alejandro

noreply@blogger.com (bordesinremedio) — Fri, 15 May 2009 09:22:00 +0000

Es política de esta bitácora el no comentar nada en lo relativo a aspectos personales. Para lo que se propone - o proponía viendo el ritmo de actualizaciones - es innecesario relatar detalles que no afectan en lo más mínimo al contenido de las entradas. Sin embargo, hoy es una gran excepción.

Ayer falleció uno de los más ilustres publicistas españoles: Don Alejandro J. Rodríguez Carrión. Catedrático desde 1982 en la Facultad de Derecho de la Universidad de Málaga, fue uno de los referentes más importantes de la disciplina en lengua castellana. Siempre mordaz e ingenioso, fue uno de los mejores profesores de aquella facultad. Como a muchas otras personas, tuve la suerte de que me diera clases, no todo un curso pero si lo suficiente como para disfrutar de sus ocurrencias y de su deseo por enseñar y de transmitir su pasión por la disciplina. Hacía simple algo que en otras manos sería catastrófico. A él le agradezco una cosa: si no me lo hubiera encontrado no estaría donde me encuentro ahora. Él hizo que abriera los ojos ante una carrera que había desconocido totalmente, hizo que estudiar la carrera de derecho tuviera sentido, pues era el primer paso hacia algo fascinante y en completo cambio. Obviamente, no todo han sido luces, pero en una circunstancia como ésta es un sinsentido.

Este es mi pequeño homenaje a él.

The ICJ advisory jurisdiction: the "wall" case

noreply@blogger.com (bordesinremedio) — Thu, 09 Apr 2009 14:56:00 +0000

The advisory jurisdiction is different from the contentious. The most relevant difference is that the Court – any - does not have to solve a problem between two parties. It has to give on opinion about a question. Nonetheless, it has been an option which has had more success in the international legal order. The application of the advisory function has encountered more problems in the national sphere, the own nature of what is the function of the courts has impede its proper implementation[1]. But a reflection of those difficulties can be traced back in the ICJ. Despite using the advisory function, the Court has used the procedure rules of the contentious process, maintaining the jurisdictional nature of the Tribunal[2]. This can be showed in article 68 of the Court’s statute:

“In the exercise of its advisory functions the Court shall further be guided by the provisions of the present Statute which apply in contentious cases to the extent to which it recognizes them to be applicable”.

But the own particularity of the international legal framework has allowed its development and, because of the Court, it has had an important impact. This is done in a two-step process. The first thing judges have to see is if they have jurisdiction for hearing the case and then, if that is the case, they have to analyze if there are not compelling reasons to not giving the opinion.

The two relevant articles are article 96 of the UN Charter, which allows the General Assembly or the Security Council to request an advisory opinion on any legal question, and to other organs of UN and specialized agencies only if this arise within the scope of their activities, and article 65.1 of the Statute which says that the Court may give an advisory opinion on any legal question.

The purpose of this assignment is to analyze the application of that jurisdiction, paying more attention to the legal nature of the question, in respect with the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory[3] case.

2. JURISDICTION

In order to give an opinion the Court has to see if there is jurisdiction. There are two requisites: rationae personae, that is, that the organ who requested the opinion was competent to do so and rationae materiae, which means that the judicial organ can only answer those questions of legal character[4].

2.1. Rationae Personae

The General Assembly, which was the organ who requested the advisory opinion of the Court in Resolution ES-10/13, had the competence to ask for an opinion in the Wall case. As the ICJ stated in the Legality of the Threat or Use Nuclear Weapons case “the General Assembly has competence in any event to seize the Court. Indeed, Article 10 of the Charter has conferred upon the General Assembly a competence relating to ‘any questions or any matters’ within the scope of the Charter”[5]. The Court would repeat the same in the Wall case, namely, that the construction of the wall in the Occupied Palestinian Territory was considered a threat to international peace and security, which is part of the General Assembly’s functions according to article 11 of the Charter[6]. The Court also concluded, despite the contentions, that it did not exceed its competence because of requiring an opinion and in spite of the fact that the Security Council was also treating the issue[7].

2.2. Rationae Materiae

Maybe the organ who submitted the question had the competence to do so, but the Court can only answer legal questions otherwise it will not have jurisdiction. It was expressly stated in Certain Expenses case that if “a question is not a legal one, the Court has no discretion in the matter; it must decline to give the opinion requested”[8]. But the terms alone does not help to comprehend what is a legal question. According to Visscher is about any problem susceptible of receive an answer based in law[9], but let’s observe how the Court has treated the matter and in the Wall case.

2.2.1 Any legal question?

The Court will answer any legal question within the realm of International Law. That is a limitation in accordance with the limits of the system[10].

2.2.2 Only Law?

As we can observe, the expression any legal question can be interpreted in the sense that excludes any legal question entangled with facts. The problem was solved in the Namibia case. The Court established that “the contingency that there may be factual issues underlying the question posed does not alter its character as a ‘legal question’”[11]. So there is no need for a pure legal one[12].

2.2.3 The Abstract Nature of the Question

Due to the different nature of the advisory procedure, the Court has answered any type of question it did not matter if it was an abstract one or related to a factual situation[13]. This was one of the issues raised by Israel objecting the Court’s jurisdiction, which rejected it stating its own jurisprudence. The Court said that “to contend that it should not deal with a question couched in abstract terms is a ‘mere affirmation devoid of any justification’ and that ‘the Court may give an advisory opinion on any legal question, abstract or otherwise’”[14].

2.2.4 A Political Question

Another recurrent argument used by States against the Court’s jurisdiction is that the question posed is political, not a legal one and, therefore, the Court cannot treat it. As a jurisdictional organ and according to its statute can only solve those problems limited in the legal sphere. However, the Court has never rejected a request on these grounds. Quite the contrary, it expressed that “as, in the nature of things, is the case with so many questions which arise in international life, does not suffice to deprive it of its character as a ‘legal question’ and to ‘deprive the Court of a competence expressly conferred on it by its Statute’”[15]. “Whatever its political aspects, the Court cannot refuse to admit the legal character of a question which invites it to discharge an essentially judicial task (…) an assessment of the legality of the possible conduct of States with regard to the obligations imposed upon them by International Law”[16]. This would be the constant attitude of the Court about these allegations, including in the Wall.

We can say then that the Court “regards all questions submitted to it as ‘legal’ regardless of their political implications as long as the requested question can be answered by the application of legal rules”[17].

2.2.5 The Clarity of the Question

Another requirement about the legal question is that it has to be drafted with enough clarity. Article 65.2 of the Statute clearly states that the written request must contain an exact statement (en términos precisos in spanish) of the question. That is why one of the reasons laid down against the jurisdiction of the Court was as regards the lack of clarity thereof. Despite that the Court rejected the argument[18]. It has been a normal pattern of the jurisdictional organ to reformulate or to ascertain the relevant legal question. Despite the request being, in Judge Kooijmans’ words, “phrased in a way which can be called odd, to put it mildly”[19] there was no reason to dismiss the request in these grounds.

We can observe, therefore, that the Court applied correctly the requirements for having jurisdiction. The arguments against it were not strong enough in the light of the previous jurisprudence.

3. PROPRIETY REASONS

In the Court’s own words:

“When seized of a request for an advisory opinion, the Court must first consider whether it has jurisdiction to give the opinion requested and whether, should the answer be affirmative, there is any reason why it should decline to exercise any such jurisdiction”[20].

That means that after analyzing its own jurisdiction the Court maybe has found that it has it, but that does not mean that there will be automatically a discussion of the request. As article 65.1 points out, the Court may give an opinion, so it leaves up to the organ whether to render a decision or not. Since saying in 1950, in the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, that “Article 65.2 of the Statute is permissive. It gives the Court the power to examine whether the circumstances of the case are of such character as should lead it to decline to answer the request”[21], the Court has maintained the same approach.

As a result, the Court has argued that, because of its “responsibilities as the principal judicial organ of the United Nations (Article 92 of the Charter), the Court should in principle not decline to give an advisory opinion. Only due to compelling reasons could the Court disregard a request[22]. More difficult is to ascertain what those reasons are by which the Court would decide not to render an opinion because until now it has never rejected one. That has not stopped the Court to explain when would that occurred and to States to convince the jurisdictional organ not to continue.

3.1 The consent of the parties with regards to an advisory opinion related with the controversy

In order to explain it is unavoidable to refer to the Eastern Carelia case, where the PCIJ refused to give an advisory opinion. The relevant paragraph is the following:

“It is well established in international law that no State can, without its consent, be compelled to submit its disputes with other States to submit its disputes with other States either to mediation or to arbitration, or to any other kind of pacific settlement”[23].

States have relied on that paragraph in order to avoid an opinion of the Courts for matter related to disputes between States. The clearest example is the Western Sahara case, and similar to the Wall case. Spain argued that because the Court would give its opinion about an issue that was contentious between Morocco, Mauritania and Spanish itself and because it did not consent to the Court hearing the case. The ICJ would reject the argument stating, quoting the Peace Treaties case that:

“The consent of States, parties to a dispute, is the basis of the Court's jurisdiction in contentious cases. The situation is different in regard to advisory proceedings even where the Request for an Opinion relates to a legal question actually pending between States. The Court's reply is only of an advisory character: as such, it has no binding force. It follows that no State, whether a Member of the United Nations or not, can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take. The Court's Opinion is given not to the States, but to the organ which is entitled to request it”[24].

And that the lack of consent could in some circumstances “constitute a ground for declining to give the opinion requested if, in the circumstances of a given case, considerations of judicial propriety should oblige the Court to refuse an opinion”, especially when the effect would be the circumventing of the consent of the State[25].

Based on that, the Court would reject Israel’s contention, considering that the judicial organ should assistance the General Assembly and that it was not circumventing Israel’s consent. But we could add that here the problem was also that the issue was not between two States, because Palestine is still not one, and therefore not a subject of International Law which would mean that there is a contentious issue as such, due to Palestine’s lack of subjectivity[26].

3.2 Lack of Information

In this case, the Court might not render an opinion because of the lack of information, which would impede to have all the facts and thus would lead to an invalid decision. This requirement is a subjective one; there is no standard definition that can help to dilucidate if there is enough information. Moreover, this has to be linked with the principle of equality. Because if all parties are not hear that would mean that the Court would only decide by the facts and arguments presented by one party.

This was an important factor in the Wall case. Israel, due to its refusal to collaborate, did not participate in the merits of the case. That is why it was argued that the Court should not continue, it would not have listened to all the parties. As with many other issues raised against the proceedings, the Court rejected it. It considered that it had enough information[27]. Judge Buergenthal was the only judge who considered that there was not enough information. He stated that the lack of information vitiated the Court’s findings on the merits[28].

This can be one of the most debatable issues of the case. We need to bear in mind that if one of the parties do not collaborate or do not participate on the process that would lead to a not very legitimate solution[29]. The fact that all the judges except one supported giving an advisory opinion and thus considering that there was enough information could have helped to avoid the undesirable consequence of having an opinion with a lack of legitimacy.

3.3. Usefulness

The function of the Court, through the advisory opinions, has been to guide the UN organs in several matters, to clarify a situation in order to take action. That is why it was argued that the Court should not discuss the merits because the General Assembly had already declared that the Wall was illegal and as a result there was no need for assistance. This was rejected on the grounds that it was up to the General Assembly to decide what to do with the findings; it was not the Court’s role to decide that[30]. This reasoning is also a debatable one. If we analyze to past opinions we can observe that the organ which requested the opinion did not prejudice beforehand the merits of the case. A clear example is the Certain Expenses case where the General Assembly requested the opinion of the Court about what was consider part of the budget according to article 17.2; it did not say what the interpretation of the precept was. It left it to the Court. Accordingly, it can be argued that it undermines the reasoning if the organ has decided beforehand about the issue.

3.4. Political Influence

Another argument usually used in order to convince the Court that it should its discretionary power and not rendering an opinion is that it released would impede a political solution; it would interfere with the discussions between the actors. In our case, the Court decided that it was not sufficient. It considered that because of the divergent views of the actors about the opinion it was not possible to really appreciate the impact of it[31].

4. CONCLUSION

Using Falk’s words we can say, with regards to jurisdiction, that “the advisory opinion seems on extremely solid ground, relying on past patterns of practice and widely accepted views of the institutional role of the ICJ within the United Nations system”[32]. Another conclusion is that the supposedly unfettered discretion of the Court deciding to render an opinion is not that clear. Article 65 is “significantly offset by other Charter articles that oblige the organs of the United Nations to cooperate with each other”[33].

[1] C.D. Esposito, La jurisdicción consultiva de la Corte Internacional de Justicia, at xxvii-xxx (1996).

[2] Id. 103 et seq.

[3] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep. 2004, at 136 (hereinafter Wall).

[4] M.M. Aljaghoub, The Advisory Function of the International Court of Justice 1946-2005, at 38 et seq. (2006); and Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Rep. 1982, 333-334.

[5] Legality of the Threat or Use Nuclear Weapons, Advisory Opinion, ICJ Rep., 1996, at 22.

[6] Wall, 145.

[7] Ibid. 148-150.

[8] Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter), Advisory Opinion, ICJ Rep. 1962, at 155.

[9] C. de Visscher, Teorías y realidades en Derecho Internacional Público 387 (1962).

[10] Esposito, 82 and note 90.

[11] Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Rep. 1971, at 27.

[12] I. Scobbie, “Issues of competence and procedure in the Wall advisory opinion” available at COMPLETE, at 13.

[13] See Esposito, 89-91 and Aljaghoub, 61-63.

[14] Wall, 154.

[15] Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Rep. 1973, at 172.

[16] Legality of the Threat or Use Nuclear Weapons, 234.

[17] Aljaghoub, 59.

[18] Wall, 153-154.

[19] COMPLETE

[20] Wall, 144.

[21] Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion, ICJ Rep. 1950, at 72.

[22] Wall, 44 and the jurisprudence cited.

[23] COMPLETE

[24] Western Sahara, Advisory Opinion, ICJ Rep. 1975, at 24.

[25] Ibid., 25.

[26] Scobbie, at 9.

[27] Wall, 160-162.

[28] Declaration of Judge Buergenthal, COMPLETE.

[29] Esposito, 100.

[30] Wall, 162-163.

[31] Ibid., 159-160.

[32] R.A. Falk, “Toward Authoritativeness: The ICJ Ruling on Israel’s Security Wall”, 99 AJIL 42, at 44 (2005).

[33] Aljaghoub, 67.

Is there (already) a right to democracy in international law? The case for the West

noreply@blogger.com (bordesinremedio) — Fri, 03 Apr 2009 09:02:00 +0000

Democracy is a polysemous idea with a multifaceted contour; a powerful word which elicits heated discussions. Similar to self-determination, it has evolved from being a philosophical and political concept to also being a juridical one. Despite its elusiveness – what is in reality a good democracy? – it has been incorporated in the most relevant legal documents. The Spanish Constitution, for instance, states in article 1.1 that Spain is a “Estado social y democrático de Derecho”[1]. Similar references can be found in other texts, which reflect the evolving character of law as a social construction. This development is, however, circumscribed to the national sphere; the situation of democracy in the international legal order diverges completely. One main feature of international law is its liberalism, inextricably linked with the notion of sovereignty. Traditionally, states are not compelled to be ordained in a specific political system; it is a free choice. As the ICJ affirmed in its 1986 case about Military and Paramilitary Activities in Nicaragua:

“[A]dherence by a State to any particular doctrine does not constitute a violation of customary international law; to hold otherwise would make nonsense of the fundamental principle of State sovereignty, on which the whole of international law rests, and the freedom of choice of the political, social, economic and cultural system of a State.”[2]

Nevertheless, the changes occurred in the last decades have radically altered radically the panorama in which the ruling was delivered. These events have led some scholars to argue the appearance of a fledgling internationally customary norm by which there is a right to democracy. Now individuals could internationally assert a right to enjoy a democratic regime. Undoubtedly, this argument has been contested. The objective of this assignment is to observe if such a norm does already exist. It is submitted here that in general international law there is not yet a right to democratic governance; rather there is such an entitlement in the Western world as a special customary norm.

1. THE DEMOCRATIC ENTITLEMENT SCHOOL

The end of the Cold War marked the end of an era and the success of the West over the East, according to the triumphalists. The liberal democracy, with its multi-party elections, freedom of voting, expression and association concurrent with a free-market economy proved to be a better form of governance, or at least more durable. Indeed, it triggered major changes in the international sphere, and international law was not alien to the development. As underlined by Fox, “[i]nternational law, like all law, is essentially reactive in nature. Norms and institutions…arise not in a vacuum or as part of a coherent theoretical scheme, but in response to specific events.”[3] Indeed, for certain scholars one of the mayor alterations was the emergence of the right to democratic governance. The so-called “democratic entitlement” school - named after and led by Franck’s seminal article[4] - considers that it could be observed as a nascent norm by which citizens could now enjoy a right to democracy.

Their assertion was based fundamentally on three premises. First, the demise of the Soviet Union and the subsequent termination of a bipolar world ended the struggle for power. In other words, realpolitik stopped being the only driving force behind both superpowers, putting an end to disregarding the respect for human rights and democracy in favour of ideological affinity; at the same time permitted the termination of discussions over what was a real “democracy”. Second, the collapse caused the flourishing of democracies throughout the world that were committed to the model which just won the Cold War, which was holding free and fair elections as the liberal model. Moreover, states were willing to overthrow or punish those prepared to oust democratically elected leaders – e.g. Haiti. Last but not least, the entitlement could be inferred from a vast amount of “hard” and “soft” law proliferated since the inception of the UN. The Universal Declaration of Human Rights, the ICCPR, the ICESCR, the multiple General Assembly Resolutions or the 1999 Resolution of the Commission on the Human Rights entitled “Promotion of the Right to Democracy”[5] create, as the argument goes, a consistent normative body expressing this entitlement. The conjunction of these elements expresses both a sufficient practice and opinio juris to materialize as a customary norm as well as the shaping of a new paradigm. “[I]nternational law recognises only one legitimate way to ensure that a people’s rights to self-determination and free expression have been respected: through genuine and periodic elections.”[6] This last assertion is capital for the argument because it gives determinacy to the concept of democracy and “which makes its message clear”[7]. Otherwise it would not be possible to give right to something undefined; it would be a vacuous entitlement.

Indubitably, the consequences of the advent of such a norm in the international legal framework would have far-reaching upshots. The most obvious would be the prohibition upon nations to not depose their own democratic governments.[8] In other words, any action that would provoke a democratic reverse would be forbidden.[9] Furthermore, the rationale behind the idea is that democracy is the ultimate human rights as it is deemed the best guarantor of them. A democratic governance is more open to a compliance system of human rights by a teleological notion of democracy. Thus, democracy as such would become the central thrust of the international community and of the legal order. Subsequently, it would allow the use of force upon those states that could be depicted as undemocratic. Even more dangerous than an arbitrary use of force by some states upon others using as an excuse “a right to democratic governance”, is the fact that it divides the international legal order between two different types of regimes, which could have the potential to fracture one of the system’s mainstay. Predictably, the argument advanced by this school of thought has several inconveniences that can impair the transformation of the emergence of this rule into a proper, fully established norm.

2. THE LIMITS OF A GENERAL CUSTOMARY RIGHT TO DEMOCRACY

The main inconvenience, which goes against the effectiveness of it, is the exact content of democracy - despite Fox’s lengthy explanation justifying it.[10] Democracy is a contested concept, which sometimes provokes the spill-over of the implicit problems by its vagueness in the legal sphere. This lack of consensus[11] over minimum requirements hinders the efforts by the democratic entitlement school. Their emphasis on a Western based democratic model collides with other equally democratic types. As asserted by Mutua, the standard proposed by them is built in a series of core rights that “can only be realized and protected in a political society organized through the liberal democratic framework”[12]. Likewise, its admissibility could have the potentially devastating effect of silencing and concealing different democratic movements along with their knowledge.[13] By the same token, their minimalist approach towards democracy – a process-oriented version based on free and fair elections, freedom of expression, free market economy and so on – could drain its “emancipatory potential.”[14] It could sustain states that only pay a lip-service to democracy. Koskenniemi goes even a step further by simply denouncing the difficulties of grasping a universal rule of democracy and therefore proposing to drop any attempt of conceiving a common precept, proposing instead the adoption of a either mere modest account.[15] All these explanations only stress what has been stated at the beginning of the paragraph: the absence of conformity over a given definition is the crucial element, as will be shown later, in the existence of a right to democracy. Reservations about the obnoxious influence of the model proposed by the democratic entitlement school ignore how other equally contested - and Western - concepts have evolved. Self-determination, for instance, is a paradigmatic case; it was borne out of the French Revolution as a political entitlement. Despite its origin, it became normative; and it helped to emancipate all those countries that had been colonized. For this reason, Koskenniemi’s argument should be dismissed. Democracy, despite its problematic, is being used increasingly in more legal instruments. It is therefore unrealistic to simply ignore the treatment given to it, because it will not be the last appearance of a contested concept in the juridical sphere.

More relevant and which also undermines the case for a right to democratic governance is their “selective bias” with regards to justifying the existence of the norm. In Macdonald’s words – though he is talking about Franck’s article, the criticism can be also extended to his accolades:

“[I]n looking for the emergence and crystallisation of a norm into a rule of custom by means solely of an investigation into its legitimacy… here is a sense in which he assumes the existence of that which he seeks to demonstrate. An examination of whether a rule is more or less legitimate only makes sense if the existence of the rule is taken for granted, and it could thus be argued that [his] conclusions are undermined by a selective bias in the evidence he produces to support his propositions, occasioned by uncritical acceptance of a contestable premise.”[16]

This leads me to their use of sources for backing up their arguments. First, the employment of normative instruments like the covenants on human rights is done after a “wishful reading.”[17] They ignored the reservations made to them. The same can be argued with respect to the GA Resolutions. The organ can pass resolutions that contradict themselves. In one it can endorse Franck’s proposal and in other can state that the diversity of states impedes the application of a unique formula, and both resolutions accruing similar supports.[18] Indeed, if we combine them with the declarations issued by several states-representatives – especially from Asia – claiming the difference of values, it undermines the existence of sufficient opinio juris coming from the international community. A similar obstacle is encountered respecting the practice. Here, Carothers claims, despite the fact that they were made long ago, that the augment of the number of democracies all over the world was overstated because it was mainly a Western phenomenon remain as true as before.[19] After the dramatic increase of the 1990s, the tide of democratization has remained stable even with some setbacks. Pakistan can be an illustrative case of lack of normative force behind the entitlement to democratic governance. Despite the coup d’etat, Musharraf remained as Head of State for almost nine years. The (political) complains about his authoritarian rule was washed away after September 11. The US decided that it needed his help more against the Taliban, than pressuring him for becoming a democracy. Only after political problems, he abandoned power, not before. The attitude of the US in this case is exemplary of a broader trend. In short, the practice is wildly inconsistent.

From the conjunction of all these reflections can be inferred that the democratic entitlement is still a lege ferenda right, there is not enough proof of the establishment of a general customary rule. After almost twenty years since Franck’s article, the emerging right to democratic governance persists as an emerging right, or as Petersen argues as “a right to the emergence of democratic governance”[20]. How ironic to end with fashionable sophistication after so many years of discussing the topic with a similar idea already advanced by Steiner more than a decade ago.[21] Nonetheless, that cannot obscure the present importance of democracy in the international legal grammar. As Crawford notes, “[r]eferences to democracy…are entering into the justification of legal decision-making in a new way.”[22] But the lack of a general customary rule does not automatically entail the dismissal of the existence of such a norm in a different plane.

3. THE CASE FOR THE WEST

As a general rule, customary law is of universal character, binding all states regardless of their participation in its elaboration. Occasionally, as an exception, the emerging law can arise affecting only certain states. This divergence is labelled as a special or local customary law “which [by definition] are applicable only within a defined group of States.”[23] The ICJ admitted the possibility of its reality in the Asylum case[24]. Consequently, it can be argued that there is a special customary norm within the Western world by which citizens have a right to democratic governance. The problems encountered at the universal level are partially the very same that confirm the existence of the entitlement at a lower level.

On the one hand, the competing definitions hovering around the concept of democracy disappear once the focus is directed towards the Western world. In other words, there is a constant consensus of what has to be a democracy, and which is the one furthered by the democratic entitlement school. A procedural version which emphasizes the relevance of freedom of expression and association, the celebration of free and fair multi-party elections along with a free market system is rather the norm and what is accepted as democracy than an exception. On the other hand, there is a constant practice and opinio juris over the existence of the rule by the people. An illustrative example is the European Union, which makes direct references to democracy, even stating in the Treaty of Lisbon that the basic form of democracy is the representative; that is the process-oriented definition[25]. Moreover, this is not limited to a European phenomenon. The failed 2002 coup d’etat steered to oust Hugo Chávez from the Venezuelan Presidency displays how entrenched the idea of democracy is nowadays within the West and that any change of government has to be done by means of ballots and not through illegitimate methods anymore. To put it briefly, there is the evidence of a regional or special customary rule. Here practice, in particular after the Cold War, has been consistent, states do really have the belief to be legally bound to a norm stating that individuals have a right to democracy, and there is a clear determinacy of the content of such an entitlement.

4. CONCLUSION

International law as it stands is the consequence of social encounters which as a result mirrors the community directed to regulate. The lack of agreement on the content of democracy, and subsequently over the right to democracy, reflects the situation of the international community. Therefore there is not yet a general customary norm expressing a right to democratic governance. However, the cultural and political homogeneity of the West produces the opposite: the reality of the entitlement.

[1] Emphasis added.

[2] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, 1986, ICJ Reports 14, at 133.

[3] Fox, G., “Election Monitoring: The International Legal Setting”, 19 Wis. Int’l L. J. 295, 295 (2000-2001).

[4] Franck, T., “The Emerging Right to Democratic Governance”, 86 AJIL 47 (1992).

[5] Com. Human Rights, Res 1999/57, 27th April 1999.

[6] Macdonald, E., “International Law, Democratic Governance and September the 11^th”, 3 GLJ 9 (2002).

[7] See Franck, op. cit., 56ff.

[8] D’Amato, A., “Human Rights as Part of Customary International Law: A Plea for Change of Paradigms”, 25 Ga. J. Int'l & Comp. L. 47, 91 (1995-1996).

[9] Petersen, N., “The Principle of Democratic Teleology in International Law”, 34 Brook. J. Int’l L 35, 81 (2008).

[10] Fox, G., “The Right to Political Participation in International Law”, 17 Yale J. Int’l L. 539 (1992).

[11] Whitehead, L., Democratization: Theory and Experience 14 (2002).

[12] Mutua, M., “The Ideology of Human Rights”, 36 Va. J. Int’l L. 589, 594 n. 12 (1995-1996).

[13] Otto, D., “Challenging the ‘New World Order’: International Law, Global Democracy and the Possibilities for Women”, 3 Transnat’l L. & Contemp. Probs. 371, 384 (1993)

[14] Marks, S., “The ‘Emerging Norm': Conceptualizing ‘Democratic Governance'”, 91 ASIL Proceedings 372, 376 (1997).

[15] Koskenniemi, M. “Intolerant Democracies”: A Reaction”, 37 Harv. Int’l L. J. 231, 235 (1996).

[16] Macdonald, op. cit., par. 7.

[17] Roth, B., Governmental Illegitimacy in International Law 231 (1999).

[18] Fox, G. & Roth, B, “Introduction: The Spread of Liberal Democracy and its Implications for International Law", in Fox & Roth (eds.) Democratic Governance and International Law 1, 3 (2000); and Macdonald, op. cit., par. 8.

[19] Carothers, T., “Empirical Perspectives on the Emerging Norm of Democracy in International Law”, 86 ASIL Proceedings 261 (1992).

[20] Petersen, op. cit., 84.

[21] Steiner, H., “Political Participation as a Human Right”, 1 Harv. Hum. Rts Y.B. 77, 129ff (1988).

[22] Crawford, J., “Democracy and the Body of International Law", in Fox and Roth (eds.), op. cit., 91, at 102 (2000).

[23] Thirlway, H., “The Sources of International Law”, in Evans, M. (ed.), International Law (2^nd ed.) 115, at 125 (2006).

[24] See Asylum Case (Colombia v. Peru), Judgment 1950, ICJ Rep. 266, at 276.

[25] Treaty of Lisbon, EU Doc. 2007/C 306/01, Article 1.