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Abstract

While the literature on the Nkonya-Alavanyo conflict references litigation and its apparent ineffectiveness in resolving the conflict, there is a paucity of detail about this litigation. This paper contributes to a more holistic comprehension of the discourses structuring resolution attempts in this conflict, with lessons for the resolution of communal conflicts generally. Drawing on archival data, media reports, and field interviews, we examine the trajectory of the Nkonya-Alavanyo conflict in the Ghanaian judicial system as an example of an intractable communal conflict that has defied legal attempts at resolution. We argue that judicial attempts at resolving the conflict have been ineffective because the resultant juridical discourse is polysemic and – to the extent that the non-negotiable value of justice is a factor in the conflict – is subject to divergent articulations. Second, we submit that the juridical discourse competes with State, civil society, and partisan articulations that do not privilege judicial decisions, with State discourse increasingly being one of militarisation.

Open Access
In: African Journal of Legal Studies
Author:

Abstract

The period 2005 to 2011 has a special significance for the people of Sudan. It not only saw the emergence of South Sudan as an independent country, but it also marked the beginning of formal constitution-making in South Sudan’s tumultuous political history. Two important documents – the Interim Constitution 2005 and the Transitional Constitution 2011 – were enacted during this period. I discuss both documents in this paper. I find that the Transitional Constitution unnecessarily concentrates power in the president. I argue that in failing to constrain the president, the Transitional Constitution has failed the task of a modern constitution.

Open Access
In: African Journal of Legal Studies
Author:

Abstract

The armed conflict between Russia and Ukraine has been characterized by a considerable number of cyber operations by States and non-State actors in support to either party to the conflict. One year since the Russian invasion of Ukraine, the ‘Russia-Ukraine cyber conflict’ offers valuable insights for estimating the effectiveness of International Humanitarian Law in regulating the status and the conduct of individuals engaging in cyberspace operations during wartime. By discussing the status of hackers groups and individuals who have conducted cyber operations in support of Ukraine, this Article claims that the relevance of the concept of combatancy is diminished in the cyber domain, and that the notion of direct participation in hostilities must be adapted to the specific features of cyberspace. Furthermore, the article focuses on the issues relating to the targeting of individual who directly participate in hostilities by conducting cyber operations in support of Ukraine. By doing so, the Article argues that cyber direct participants place themselves at an increased risk of being attacked, even though the Russian armed forces are limited in their targeting decisions by the principles of proportionality and precaution.

Open Access
In: Journal of International Humanitarian Legal Studies
This book explores strategies for limiting transnational market failures, governance failures and constitutional failures impeding protection of the universally agreed sustainable development goals like climate change mitigation and access to justice and transnational rule-of-law. Can multilevel democratic and judicial protection of fundamental rights and public goods across frontiers be extended through plurilateral agreements? Can transnational economic and environmental constitutionalism be reconciled with ‘constitutional pluralism’ and with democratic constitutionalism depending on individual and democratic consent of free and equal citizens? Will judicial challenges (e.g. of EU carbon border adjustment measures) and countermeasures lead to further disruption of UN and WTO law?

"This innovative book provides convincing analyses by leading practitioners and academics of multilevel governance of transnational public goods. It advocates the need for stronger involvement of civil society and democratic institutions. It shows why constitutionalism and constitutional economics offer appropriate methodologies for limiting market failures, government failures and constitutional failures. It thereby offers a glimpse of much needed optimism."
Karl-Ernst Brauner, former Deputy Director-General of the World Trade Organization (WTO)

Abstract

The use of autonomous weapons systems (‘aws’) is the source of extensive discussions within the international legal community and beyond. After years of discussing definitions, the discourse is slowly moving on to discuss aws in light of existing law of armed conflict (‘loac’) rules. This article aims to support these discussions by providing a military legal perspective. aws offers great potential benefits to both soldiers and civilians, and control mechanisms already in place for military operations may be employed to define when and how aws can lawfully be used. aws can reduce the exposure of soldiers to dull, dirty and dangerous environments and the risk of incidental civilian harm. To exploit these potentials and ensure legality, regulators need to understand how military forces employ and control the use of force to support their operations, and military planners and decision-makers need to understand the limits of and possibilities within loac.

Open Access
In: Journal of International Humanitarian Legal Studies

Abstract

The dispute settlement system of the WTO is, due to the paralysis of the WTO Appellate Body, in an existential crisis. This crisis is a major governance failure of the WTO. At the Ministerial Conference in June 2022, WTO Members committed themselves to address this failure. This paper deals with past and present efforts to restore the WTO dispute settlement system and examines, more generally, the options available to WTO Members to overcome the current crisis. It also discusses the MPIA, which may be in the coming years the best hope for rules-based, binding dispute resolution among WTO Members.

Open Access
In: Constitutionalism and Transnational Governance Failures

Abstract

Environmental law and governance have taken many different forms in the Americas in response to climate change mitigation. This contribution describes recent developments in the United States, Colombia, and Brazil, illustrating the divergent approaches to climate protection. The chapter highlights the common but differentiated ways in which the three countries in the Americas approach environment constitutionalism in the midst of the climate crisis. On one hand, Brazil and Colombia adopt a rights-based approach to tackle complex issues related to environmental law and governance in their context-specific responses to climate protection. In particular, the courts of Colombia and Brazil have been global pioneers in the recognition of environmental and even climate rights to galvanize political action. On the other, the United States uses a combination of market-based approaches and administrative enforcement of broad legislative principles to advance well-being, in the belief that markets, rather than political or judicial elites, are more likely to be responsive to both existing conditions and popular will. The Inflation Reduction Act of 2022, which contains the most innovative and ambitious climate mitigation goals in the country’s history, exemplifies this approach. While the United States may provide a model of political and economic approaches to climate mitigation, courts in Latin America, as exemplified by Brazil and Colombia, are providing a model of progressive rights-based action. This contribution analyzes these national examples from a comparative perspective, assessing their promise for climate mitigation.

Open Access
In: Constitutionalism and Transnational Governance Failures
Author:

Abstract

With policy failure as perennial phenomenon in an interconnected world of transnational public goods, the UN Charter and the Bretton Woods agreements aimed at replacing the power-oriented ‘international law of coexistence’ by a new ‘international law of cooperation’ aimed at protecting human rights and related public goods through legal and judicial limitations of foreign policy discretion. This chapter addresses this development on two levels: First, the chapter seeks to untap the contribution of constitutional economics for the discussion of transnational public goods. With constitutional economics focusing on mutual agreeability of constitutional arrangements for all members of society positing ‘consumer sovereignty’ and ‘citizen sovereignty’, I argue that this requires – as normative benchmark – markets and political arenas to be organized in a way that allows consumers and citizens to freely and fully engage in market-based and political transactions. In political practice, however, the constitutional economic approach only explains and guides the European experience of multilevel constitutionalism. It does not offer normative appeal to regimes characterized by political systems that place majoritarianism over individual rights, authoritarianism over equality or business over society interest. Second, despite the lack of normative universality, constitutional economics establishes ‘failure’ as analytical category in the discourse on transnational governance and constitutionalism. Disentangling policy failures into market, governance and constitutional failures offers analytical insight for policy responses to avoid policy failures. This taxonomy of failure highlights responsibilities for policy conduct and allows policy address; it reveals deficiency of rules and informs their re-design; and it highlights systemic rivalries between rules-based, process-dominated, state-controlled, and business-determined governance regimes.

Open Access
In: Constitutionalism and Transnational Governance Failures
Authors: and

Abstract

Energy governance at the international level is fraught with difficulties due to “transnational governance failures”. In this paper, we extend the thesis to argue that the same tension may be found in domestic energy governance. Drawing from China’s experience in advancing climate actions and energy transition, we analyze how the misalignment of incentives between different actors and the incomplete market reform led to a drastic shift in policy in 2021 and more broadly, how the problems of local implementation may be explained by constitutional and governance failures. We also compare China’s different approaches in energy and trade policymaking and draw some general lessons on how developing countries might overcome such governance problems.

Open Access
In: Constitutionalism and Transnational Governance Failures

Abstract

All UN member states use constitutionalism for protecting national public goods. The current human disasters – like wars of aggression, suppression of human and democratic rights, global health pandemics, climate change, ocean pollution and biodiversity losses, disregard for rule-of-law – reflect transnational governance failures and ‘constitutional failures’ (Section 1) to comply with UN and WTO law and the ‘sustainable development goals’ (SDGs). Europe’s multilevel constitutionalism succeeded in progressively limiting such transnational governance failures; but it has no equivalent outside Europe (Section 2). Geopolitical power politics and nationalism prompted China, Russia and the USA to resist ‘constitutional politics’ in UN/WTO governance and ‘environmental constitutionalism’ (Section 3). Constitutionally unbound ‘totalitarian states’ (like China and Russia) and business-driven, neo-liberal interest group politics (notably in the USA) disrupt the rules-based world trading system (Section 4). The less UN member states follow the example of European Union law to constrain foreign policies by constitutional principles like human rights and rule-of-law, the more important become plurilateral, second-best responses (like trade, investment and environmental agreements conditioning market access on respect for human rights and greenhouse gas reductions) in order to ‘de-risk’ global interdependencies, promote regulatory competition, create ‘democratic alliances’ containing executive power politics, and protect the SDGs through private-public partnerships supported by citizens (5).

Open Access
In: Constitutionalism and Transnational Governance Failures