International Law and Transitional Governance

Emmanuel De Groof works in diplomacy for the Belgian Ministry of Foreign Affairs, and remains active in academia as an associate researcher at the University of Edinburgh, a guest lecturer at the University of Maastricht, and a visiting professor at the University of Kigali. He is author of State Renaissance for Peace – Transitional Governance under International Law (2020). Micha Wiebusch is a senior legal officer at the African Court on Human and Peoples’ Rights, Arusha, Tanzania. He is also an associate research fellow at the United Nations University Institute on Comparative Regional Integration Studies (UNU-CRIS), an associate researcher at the Institute of Development Policy (IOB), University of Antwerp, and a research fellow at SOAS, University of London, School of Law.

• Preface 1. Introduction Emmanuel De Groof and Micha Wiebusch 2. The Features of Transitional Governance Emmanuel De Groof and Micha Wiebusch 3. Contextualizing Conflict-Related Transitional Governance Since 1989 Adam Day and David M. Malone 4. Constituting Transitions: Predicting Unpredictability Christine Bell and Robert A. Forster 5. No Strings Attached? Constraints on External Advice in Internationalized Constitution-Making Sumit Bisarya 6. The gap between international legitimacy and legality of transitional regimes Noam Wiener 7. Legitimizing transitional authorities through the international law of self-determination Matthew Saul 8. The End(s) of Transition Zinaida Miller 9. The Ambitions and Traumas of Transitional Governance: Expelling Colonialism, Replicating Colonialism Vasuki Nesiah 10. The Future(s) of Transitional Governance and International Law Emmanuel De Groof and Micha Wiebusch

"We live in a period where interstate war has become rare while often violent conflicts within states are on the increase. Such conflicts can rarely be ended in one go and transitional arrangements are needed. Constitutional engineering is never more important than in such situations. It is therefore highly welcome that this volume addresses in a comprehensive manner the various aspects of transitional government. Essential reading for all constitutional lawyers and everybody interested in conflict settlement." Mr Gianni Buquicchio, President of the Venice Commission"Now more than ever we need intense reflection on the deep, multi-stranded connections and tensions between international and national processes and actors in pursuing transition from conflict to peace. This outstanding collection, gathering analysis from leaders across the field, pushes forward our understanding of the decades-long trends toward comparative constitutional law and international legal scholarship and practice in this area, and how they intersect. It is indispensable reading for anyone seeking nuanced, lucid, and globally-informed perspectives on the exceptionally important subject of transitional governance."Tom Gerald Daly, Director, Democratic Decay & Renewal (DEM-DEC)"Transitional authority and interim government is often sidelined in governance discourse and constitutional theory. This innovative volume, dedicated to the late Chandra Lekha Sriram, marks an important contribution to bring these issues to the forefront. It helps us to better understand the prospects, limits and critiques of international law in processes of transition."Professor Carsten Stahn, Leiden & QUB Belfast"One of the many legal challenges of our time is the interface between domestic constitutional and international law during the transition from conflict to sustainable peace. This book brings together an impressive group of well-informed authors to explore these questions from the standpoint of international law. It is a timely contribution to the field, which deserves to attract considerable attention."Professor Cheryl Saunders, Melbourne Law School"This fascinating new collection aims to bridge the divide between comparative constitutional law and international legal theory in the context of the challenges of transitional governance; and more than succeeds in this aim. Bringing together scholars and practitioners from both sides of this divide, it provides new and important insights about how we can achieve successful constitutional ‘transitions’. And it brings these insights to bear on some of the most pressing transitional justice challenges of our time – the challenge of creating stable and just constitutional government in countries such as Afghanistan, Burundi, Nepal, South Sudan, Syria or Yemen. It should be considered compulsory reading for all those writing and working in the field."Professor Rosalind Dixon, UNSW Sydney"Transitional governance in a post-conflict context is not a deliberate choice but a necessity for war-torn societies in their quest for stability and change at the same time. This volume offers a multifarious and enriching insight into how the international sphere drives, shapes, supports, and impedes such a process towards a country’s future. An inspiring contribution for academics and practitioners alike, but a must-read for everyone before getting engaged in another process of transitional governance."Dr. Markus Böckenförde, LL.M. (UMN), Associate Professor & Head of the Comparative Constitutional Law Program, Legal Department, Central European University (Vienna, Austria)"Transitional Governance and International Law are put into conversation and, at the same time, insistently scrutinized by a starry collective of thinkers in this resonant and thoughtfully edited volume of essays."Professor Gerry Simpson, Chair of Public International Law, London School of Economics and Political Science (LSE)"This collection of essays is a major contribution to our understanding of transitional governance. Leaders in the respective fields explore transitional governance at the interstice between international law and comparative constitutional law. The book discusses central issues in contemporary constitutional design and the relationship between constituent and constituted power. The focus is on understanding the forms and underlying dynamics of governance in transitional contexts. But the book contains many, more generally useful, insights for especially law and politics scholars interested in how institutions work – and can be made to work – in societies transitioning to peace and democracy. Highly recommended." Dr Asanga Welikala, Director, Edinburgh Centre for Constitutional Law"One of the most insightful reflections to date on transitional governance with thoughtful contributions by some of the best-known names in the field. It will be required reading for a broad range of practitioners and scholars with an interest in the subject"Adebayo Olukoshi, Director for Africa and West Asia, International IDEA. "How does public authority pull itself together in the gap between war and peace, colonial rule and national self-determination, authoritarianism and democracy? Often by linking itself to international norms, institutions and assistance. This fascinating collection explores what happens next: what works and what doesn’t, the opportunities and pitfalls of transitional governance. A superb combination of case studies and informed historical analysis. Essential reading for anyone considering governing "in transition."David Kennedy, Manley O. Hudson Professor of Law, Harvard Law School"Transitional governance is transnational governance, in which a host of outside players engage local actors to try to construct functioning states. This nuanced and valuable collection not only helps consolidate our understanding of the mechanics of transition, but raises new normative and theoretical questions in the process. A lucid and valuable contribution that will be essential to practitioners and scholars alike."Professor Tom Ginsburg, Leo Spitz Professor of Law, University of Chicago"A distinguished group of scholars have assembled their mastery to compose a clear and extensive overview on how international law (and advice) frame transitions between regimes. Clearly written and seeking general overviews rather than in deep-case studies, the compilation identifies and discusses the main challenges for transitional governance and it is a "must read" for anyone wishing to understand external inputs in internal changes of regimes."Professor Carlos Closa, European University Institute (EUI), Florence and Institute for Public Goods and Policies (IPP-CSIC), Madrid; Former Member of the Venice Commission"A timely and incisive work on a conflict transformation tool that has had many incarnations in the past and whose relevance is far from being over. As the continent strives to move away from conflict, as part of its Silencing the Guns initiative, African scholars and practitioners alike will be well advised to read this book, to deepen their reflection on transitional governance and ensure that national ownership, so essential for lasting settlement, is front and centre in such arrangements."El-Ghassim Wane, J.B. and Maurice C. Shapiro Professor of International Affairs, George Washington University, former UN Assistant Secretary-General for Peacekeeping Operations and former AU Director of the Peace and Security Department.William Shakespeare remarked that "What's past is prologue". Like personal pasts, transitional governance frameworks designed as bridges to the future leave their marks on emerging frameworks and dynamics, even when they purportedly fail. This book calls into attention an important dimension – how supranational norms, institutions and individuals iteratively interact with transitions. Through the voices of authors steeped in observing and supporting such transitions, the book develops typologies and frameworks of transitions, interrogates assumptions and practices, and outlines normative and practical considerations, rather than acontextual solutions. Important reading to all occupying diverse corners in transitions – domestic protagonists and international partners alike.Adem K Abebe (LL.D), Programme Officer, Constitution Building Programme of International IDEA; Extraordinary Lecturer, University of Pretoria; Advisory Board Member of International Journal of Constitutional Law; and Executive Committee Member of the African Network of Constitutional Lawyers. "Written by several contributors in a sober and harmonized style, the book offers, through its multidisciplinary approach that combines theory and practice, a new perspective in the examination of the transitional governance phenomenon in its relationship with international law – from which stems its originality. This remarkable book is a must-read for academicians in the various disciplines concerned (law; political science; international relations), and also for practitioners called to intervene in transition processes in one way or another."Gérard Niyungeko, Former President of the African Court on Human and Peoples’ Rights; Associate Member of the Institut de droit international"This book brings together leading scholars and practitioners to reflect on the theory, history and practice of ‘transitional governance’. The resulting volume is insightful, critical and far-sighted: a necessary book for anyone trying to understand our contemporary preoccupation with remaking political orders during and after conflict."Professor Nehal Bhuta, Chair of Public International Law, University of Edinburgh School of Law"In the aftermath of COVID-19, in various countries, conflict may break out or existing conflict may be exacerbated. To address such conflict, it is not unlikely that in the years to come, transitional governance arrangements, which pave the way for constitutional stability and socio-economic development, will be in higher demand. Accordingly, ‘International Law and Transitional Governance’, edited by Emmanuel De Groof and Micha Wiebusch comes at a propitious time. This volume critically and convincingly interrogates, from an interdisciplinary perspective, patterns of transitional governance arrangements that are emerging across countries and are often shaped by international actors and international law. It is an invaluable resource that offers constructive suggestions to the designers of such arrangements, in order to avoid repeating past mistakes."Prof. Cedric Ryngaert, Professor of Public International Law, Head of the Department of International and European Law, Utrecht University"The volume offers new perspectives on the dynamic and contested relationship between international law and transitional governance. Its critical and rich interdisciplinary insights can be used by diplomats, policy experts and lawyers to create constitutional orders that promote real prospects of peace and development in post conflict societies."B.S.Chimni, Distinguished Professor of International Law, O.P. Jindal Global University, India."International Law and Transitional Governance is a wonderful book. De Groof and Wiebusch’s conceptualization of transitional governance breaks important new ground, and creates an agenda for a much needed dialogue between international law and comparative constitutional law. The combination of empirics and conceptual frameworks will appeal to scholars and field practitioners alike – indeed, I am already putting it to use. A must read."Sujit Choudhry, Director Center for Constitutional Transitions + WZB Berlin Social Science Centre."This book gives an insightful overview of the various challenges and difficult choices policy and decision-makers may be confronted with when managing transitional governance situations. I strongly recommend it to anyone, especially practitioners in the field, who would like to explore the impact of international law on constitutional politics in a post-conflict reconstruction context."François Butedi, Technical Advisor- Elections at UNOPS in New Caledonia, Former Senior Electoral and Post Conflict Reconstruction and Development Officer at the African Union Liaison Office of Madagascar and Comoros."This is an invaluable collection of essays for anyone seeking to understand the complexities of Transitional Governance, some decades now after it emerged in the realm of international law and relations. Every essay is pointed and informative. However, it is the overlapping, contrast and juxtaposition of the different perspectives of the distinguished and expert authors that make this such an important and welcome addition to the literature."Professor Tony Anghie, University of Utah and National University of Singapore"While the establishment of states had been the big question throughout the 20th Century, it ended with new experiments in post bellum bureaucratic reconstructions that aimed at profoundly changing governance within existing states. Reflecting from various angles on more than thirty cases of post-cold war governmental transitions over a quarter of a century, this book provides an in-depth critical assessment of state renaissance processes and the ever-growing role played by international law in that regard. Despite the fact that law always simplifies everything and that you never start from a blank page, this rich volume somehow confirms that new beginnings are possible."Professor Pierre d’Argent, University of Louvain, Member of the Institute of International Law "This is a rich and important addition to the growing body of literature that rightly engages with the realities of states and societies as they emerge from conflict and protracted violence; not as "clean slates" but as fractured and traumatised entities indubitably marked by conflict and war. In exploring the record and role of internationally-supported but domestically driven transitional governance arrangements in rebuilding constitutional order after conflict, the volume offers a much-needed and critical examination of a neglected dimension of efforts to find viable pathways to lasting peace."Professor Mats Berdal, Director, Conflict, Security and Development Research Group (CSDRG) & Programme Director, MA in Conflict, Security and Development, Department of War Studies, Faculty of Social Science and Public Policy, King's College London"The editors are to be commended for having brought to fruition an insightful collection of essays spanning theory and practice on one of our time’s defining ideational challenges. With the growing ease and speed of communication, local affairs are nowadays always also global affairs: we learn about trouble in far-away countries, just as its human flotsam washes on the shores of the affluent, thus making complacency increasingly untenable. The facile call that ‘Somebody should do something’ often runs into the sobering reality of ignorance what precisely that ‘something’ should be. The authors convened in this volume grapple with the peculiar conceptual difficulties of transitional governance, that is the penumbra where conflict gradually gives way to a stable constitutional order. As it is said in the preface, every local conflict resembles Tolstoy’s unhappy family in the uniqueness of its misery. The penumbra during which these conflicts are overcome, however, is increasingly characterised and regulated by a common set of values, rules and actors, which constitute the subject of this timely book."Ebrahim Afsah, Professor of Islamic Law, University of Vienna; Associate Professor of Public International Law, University of Copenhagen, former Senior Manager Deloitte Consulting LLP and Senior Consultant on public administration reform for the EU, UNODC, UNDP, Worldbank and GTZ."Whilst the international law world has been abuzz with talk of transitional justice for the last 30 years, it is striking how little attention lawyers have paid to the basic reality that, beyond questions of justice, societies in transition, to put it simply, need to be governed. This remarkable volume seeks to remedy that gap by identifying the issue as one that involves momentous and formative issues for the law of any state going through a transition. This will be indispensable reading for anyone seeking to think through not only how international law shapes transition governance, but also how it stands to be shaped by it."Professor Frédéric Mégret, Faculty of Law, McGill University"L’ouvrage Transitional Governance and International Law – Critical Perspectives apporte des éclairages opportunes pour bien appréhender cette situation si particulière qui a tant marqué les deux premières décennies de ce nouveau siècle. L’approche retenue, met en exergue les aspects multidimensionnels de la problématique étudiée, dans le respect des propriétés contextuelles et des réalités spécifiques de chaque situation ainsi que des dynamiques endogènes qu’elle s’efforce d’identifier. Ceci confère à ce livre un statut particulier. Il souligne l’intérêt qu’il présente, non seulement pour les milieux académiques, mais aussi pour tous ceux qui œuvrent à l’effectivité d’une gouvernance transitionnelle."Professor Rajaona Andrianaivo Ravelona, consultant international and former civil servant of the Organisation Internationale de la Francophonie (OIF) to support the democratic transitions in the francophonie area."This volume provides a rich and much-needed legal assessment of transitional governance, an increasingly common means for post-conflict states to move forward toward stability. The authors’ thoughtful contributions fill a gap in a literature that has focused on many of the circumstances surrounding transitional regimes – peacekeeping, peace agreements, occupation, transitional justice and international territorial administration – but has curiously lacked a full assessment of transitional regimes themselves. In concise and insightful chapters, the volume explores how international law forms an essential foundation for some aspects of transitional governance but still struggles to conceptualize many others."Gregory Fox, Professor of Law and Director, Program for International Legal Studies, Wayne State University"This groundbreaking volume draws on scholarship in comparative constitutional law and international law to produce important new insights on transitional governance. Featuring the leading voices in the field, it combines theory with deep practical knowledge. A must-read for academics and practitioners interested in conflict related transitions."Mila Versteeg, Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law, University of Virginia School of Law"Transitional Governance and International Law is a profound exploration of a subject the significance of which is often overlooked. The passage from failed to reconstituted State, armed conflict to peace-building, dictatorship to democracy, provides a stark reflection on how we measure progress, and the complex ways in which means and ends are inextricably intertwined. Emmanuel De Groof and Micha Wiebusch have assembled a unique collection that is a valuable resource for both scholars and practitioners."Professor Payam Akhavan, McGill University, Faculty of Law"When countries lapse into conflict, there is no uniform plan or "way out" designated in international or comparative constitutional law, and the transition from to a new dispensation emerges from a complex interplay between domestic protagonists and international influences. This superbly constructed volume offers insights from leading, experienced international specialists with deep and personal experiences from the transitions of the late 1990s and 2000s, providing authoritative insights and sorely needed recommendations to facilitate inclusive, sustainable transitions to peace founded in constitutionalism, law, and human rights."Timothy D. Sisk, Professor of International and Comparative Politics, University of Denver"The book explores an important topic--about peace making and setting the stage for the making of a new constitution in several troubled states. Without this stage, it is often very difficult--and not wise- to proceed to a final settlement. It is a rare book as there are few studies of this important stage in otherwise well documented processes of peace making and post-conflict reconstruction". Yash Ghai, Professor Emeritus of Constitutional Law and former Chair of the Commission on the Review of the Constitution of Kenya and Fiji Constitutional Commission, Head of the Constitution Advisory Support Unit of UNDP in Nepal and Special Representative of the UN Secretary General in Cambodia on human rights."This outstanding volume analyses the different ways in which international law relates to transitional governance, and vice versa. In its interdisciplinarity, inclusion of a globally-diverse range of perspectives, integration of scholarly and practitioner-orientated viewpoints, critical orientation, and unique and highly valuable substantive insights, it is a landmark contribution to the field and deserves the widest readership."Ralph Wilde, University College London, author of International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away "International law and transitional governance: Critical Perspective is an edited volume of scholarly works of practitioners and academics, which presents insightful analysis on the concept, historical evolution, the internal and external factors that shape transitional governments. What the experience from various parts of the world shows about which international norms and whether, how and why such norms inform and shape the transitional governance that arises from constitutional rapture in a society is not something that is comparatively and comprehensively studied other than with specific reference to individual cases and to the field of transitional justice. This volume is an important contribution that attempts to offer such comparative analysis of the phenomena of transitional governance. While whether it is advisable for international law to prescribe rules on transitional governance remains highly problematic, the role that international norms, including those relating to transitional justice as exemplified by the 2019 AU Transitional Justice Policy, play in enabling national actors to achieve stable, inclusive and legitimate transition is a question of both policy and academic significance as the various chapters in this volume clearly show."Dr. Solomon Ayele Dersso, Chairperson, African Commission on Human and Peoples Rights “De Groof and Wiebusch put a finger on a widely understudied phenomenon: transitional governance. Dozens of mediators, diplomats and politicians are involved in shepherding transitions worldwide, leaving an indelible imprint well beyond the transition itself. All these policy makers and influencers need guidance in the often complex transition governance process. This highly accessible edited volume is one of the first serious endeavors to provide such expert and well informed guidance. I highly recommend it for scholars, practitioners and policy makers in this burgeoning field.”James Gathii, Wing-Tat Lee Chair of International Law at Loyola University Chicago School of Law; Independent Expert for the Working Group on Extractive Industries, Environment, and Human Rights Violations in Africa formed by the African Commission on Human and Peoples’ Rights (2012-2020)."De Groof and Wiebusch have produced a timely and important volume analysing nationally-led transitional governance. The chapters, all by distinguished experts, highlight the increasing recourse to such arrangements to facilitate the return to constitutional order after complex political and post-conflict transitions. Combined these analyses raise questions about the international assistance model and legal framework, and the assumption that nationally-led transitions are inherently more cost-effective, democratic and peaceful than other models of peacebuilding and state building. A welcome addition to the literature, and a valuable introduction for policy-makers and practitioners to an evolving subject."Dr. Jago Salmon, United Nations "Insightful anecdotes from practitioners who have shaped transitions in the past, such as in a preface by activist and former judge on the South African Constitutional Court Albie Sachs, make the book a truly fascinating read."Julia Strasheim, Bundeskanzler-Helmut-Schmidt-Stiftung, Hamburg, Germany