Political Settlements and Constitutions in an Uncertain World

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  • Author : PSRP Category : conference, global-justice-academy

    Tags : Constitutions Public Law

Political Settlements Research Programme researchers presented at one of the world’s largest constitutional law conferences, I-CONS, July 2015.  From 1-3 July 2015, more than 200 academics and practitioners from around the world came together at the second Conference of the International Society for Public Law (ICON-S) to discuss ‘Public Law in an Uncertain World‘. The Conference was held at the New York University (NYU) School of Law and was jointly organized by ICON-S, NYU, the Jean Monnet Centre for International and Regional Economic Law and Justice, and the Institute for Research and Public Administration.

The Conference was the second-ever major global meeting held by ICON-S. The initiative to create ICON-S emerged from the Editorial Board of the International Journal of Constitutional Law (ICON) and was officially launched at an Inaugural Conference in Florence, Italy, on 26-28 June 2014.

The Conference opened with a keynote address by Professor Ayelet Shachar who discussed the changing legal and political approaches to citizenship, presenting examples where the laws on citizenship have contracted and expanded beyond state territory to fulfill political objectives. Across the three days, the conference included three plenary discussions led by leading global experts, complemented by four concurrent panel sessions. The keynote address and plenary discussion wills shortly be made available on the ICON-S website.

While legal discourse has not drawn on development political settlement discourse,  it centrally considers how stable political settlements with effective political and legal institutions can be forged.  This conference focused on constitutionalism in troubled times, with the three key plenaries adddressing  (1) secession and federalism, covering case studies such as Scotland, Quebec and Catalonia; (2) public law under conditions of instability, with a particular focus on the impact of international trade agreements; and (3) trends and troubles in constitution-making, considering the relationship between constitutions and revolutions, coups, and attempts to fundamentally change the political settlement from more inclusive to less inclusive.  Researchers from the programme and from the University of Edinburgh Constitutional Law Centre played a key role.

Professors Neil Walker and Christine Bell (University of Edinburgh) were both invited to deliver a plenary addresses – the first and last – top and tailing the conference! In his presentation on secession’s ‘new stage’, Neil Walker argued that the source and distribution of legal authority is changing, which has allowed sub-state entities to pursue other avenues of recognition beyond gaining sovereign statehood.  Paradoxically, these avenues both fuel secessionist aspirations, but also provide potential alternatives to dismembering states.

Christine Bell’s presentation suggested that a new concept of constitutional transition was needed to cover situations where regressive attempts to move away from democracy take place while ahering to the technology of elections and constitutions.  She suggested that a constitutional transition occurred when one of two matters took place: either the replacement of a constitution, or the replacement of the underlying political settlement that the constitution is understood to reflect.  She examined the ways in which new norms and institutions are being produced at the regional and international level to try to outlaw moves from more to less inclusive and open political settlements.  She argued that this was a new departure for international law because it was centrally involves international legal regulation of  the process of constitution-making and the regulation of constituent power. As a case-study, she considered the African Union’s position on non-constitutional changes of government among its member states and reflected on the difficulties of establishing a legal framework to determine when such a change has occurred, taking into account the events in Egypt and Burundi.

Over 60 smaller panel discussions were hosted over the course of the three days.  Here again the PSRP had a strong presence.  It sponsored a session on “Searching for Peace in Constitutions”. The female-only panel featured three presentations. Charmaine Rodrigues (former UNDP Constitutional Specialist) made a convincing case that attempting to separate peace and constitution-making processes is a pointless and counter-productive exercise, and that in a process of peace-making and constitution-making, interim constitutions can be a smart policy option. Silvia Suteu (University of Edinburgh), who considered the inclusion of unamendable provisions in post-conflict constitutions, questioning their effectiveness in such fragile periods against their promise to creating constitutional endurance. Jenna Sapiano (University of St. Andrews) spoke about judicial review in Bosnia-Herzegovina and Colombia, finding examples in the case-law of both states where the constitutional court limited certain rights on the grounds of peace.

The Conference was a unique opportunity to discuss the Political Settlements Research Programme with a range of academics and practitioners. A number of smaller panels discussed post-conflict constitutional and rule of law issues, highlighting different strands of academic investigation of relevance to the Programme team.

We hope to publish the PRSP papers for the conference, in working paper and ultimately journal format.

With thanks to Charmaine Rodrigues and Jenna Sapiano for reporting from the Conference.

Charmaine is a crisis governance consultant who was previously the Global Constitutional Assistance and Political Dialogue Specialist at the United Nations Development Programme. In that role, she provided technical and programming advice to a range of post-conflict countries undergoing constitution-making processes, as well as co-authoring UNDP’s new Guidance Note on Constitution-Making Assistance.

Jenna is a PhD candidate at the University of St Andrews researching peace agreements and constitutions. Her PhD considers how constitutional courts have interpreted post-conflict constitutions, and the impact of such decision on the peace process.



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