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Emmanuel H. D. De Groof, State Renaissance for Peace: Transitional Governance under International Law

Emmanuel H. D. De Groof, State Renaissance for Peace: Transitional Governance under International... The book under review is a study of the international legal aspects of transitional governance. There is no established transitional governance-specific international legal framework. There is, though, a considerable amount of practice, especially since the end of the Cold War, of international support for transitional governance ‘with the declared intention to bring peace and security in conflict-riven states’ (p 4). Redefinition of the social contract, through the overhauling of a state’s constitution and its institutions, is viewed as an effective conflict resolution mechanism (p 6). De Groof’s study encompasses over twenty situations of transition, including, for example, Cambodia (1991), Afghanistan (2001) and Libya (2011) (pp 82–85). De Groof’s main interest is in whether and how transitional governance—‘public authority exercised during the interregnum’ (p 4)—is regulated under customary international law. The focus of the first part of the book is on mapping and disaggregating the practice of transitional governance. The middle part brings into focus nascent customary international law applicable in situations of transitional governance: the ius in interregno. The concluding part considers the limits to external influence over transitional governance. One of the important contributions of the book is the framework it provides for analysing transitional governance as an international legal practice. The circumstances of the transitions that De Groof examines, such as South Africa (1994), Somalia (2004) and Ukraine (2014), vary considerably. However, De Groof shows that at a higher level of abstraction the examples of transitional governance in his book share common features. The governance arrangements initiated in response to conflict are provisional and are self-regulated, sidestepping extant constitutional norms (p 6). In addition, most of the examples include four stages: (i) pre-transition (marked often by a political event, such as a ceasefire); (ii) foundation of the transition (often grounded in an instrument such as a peace agreement); (iii) the interregnum—the interim rule as such; and iv) the post-transition—creation of the new government onwards (p 124). Another prominent feature is international attention—often in the form of extensive assistance, coordinated by contact groups of interested states (pp 49–52). De Groof presents the common features of transitional governance in a series of accessible tables with additional details provided in an accompanying report available online at the homepage of the Political Settlements Research Programme.1 De Groof’s main international legal argument is that ‘[a]n international rule of law regulating the conduct of states in transition is currently germinating around a core of existing law.’ (p 270) Transitional governance is argued to be limited rationae temporis: the transitional government should exercise its ‘duties on a temporary basis, that is with the aim of being replaced on the basis of new elections or laws’ (p 270). The transitional government is also limited rationae materiae: the transitional government should respect its mandate, which involves preparing for the future without predefining it (p 270). The third strand is that transitional governance ‘must be carried out inclusively’. (p 271) Transitional governments ‘are expected to favour broad and progressively inclusive political participation during the interregnum whereby answers to questions as to whom to include, how and when are gaining precision.’ (p 271) De Groof presents these nascent rules of customary international law as specifications of the principle of self-determination for the transitional context (pp 194, 227). De Groof’s is an ambitious argument, which raises several issues. One issue relates to the requirements for a practice to serve as evidence of a ‘nascent’ rule of customary international law. De Groof refers to the standard criteria for the formation of customary international law: ‘general practice, both extensive and virtually uniform (usus), and the conviction that such practice reflects or amounts to law (opinio juris)’ (p 163). De Groof also flags the importance of opinio necessitatis: that the practice ‘is required by political, social or economic exigencies’ (p 163). This is seen as ‘especially important during the custom’s infancy’, when De Groof notes that ‘the conduct may be perceived as more of a social necessity than a legal obligation’ (p 163, citing Conforti and Labella, An Introduction to International Law). De Groof’s study provides evidence of a good deal of practice in line with the purported customary law rules. Moreover, concepts such as inclusivity often appear in international policy documents (p 238). The level of commonality in the practice De Groof surveys is suggestive of a degree of socialisation among interested international actors that exert influence on transitional governance.2 However, De Groof does not focus closely on whether the practice surveyed holds evidence of opinio juris (s 169). This makes it difficult for the reader to judge the extent to which the commonality in the practice stems from emerging international legal obligations. De Groof links the nascent rules he identifies to the principle of self-determination: ‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’3 De Groof argues that ‘the limits ratione temporis and rationae materiae to the interregnum as well as another recurrent TG [transitional governance] practice—inclusivity and domestic ownership—can be read through the lens of this principle’ (p 194; also pp 232, 227, 271). This approach makes sense conceptually. Transitional governments often lack the standard indicators for accepting that a government represents the will of the people: they are often selected (during internationally facilitated peace negotiations) rather than elected and they may struggle to exert effective control of the territory. Thus there is potentially reason for the authority of transitional governments to be limited and for a transition-specific requirement of popular involvement in governance. However, De Groof does not spotlight the issue of whether the relevant actors view the emerging rules he identifies as derived from the principle of self-determination. It may also be open for the emerging rules to be treated as free-standing, emerging customary law rules. Perhaps this would be preferable. The content and status of the right to self-determination are contested in international law. De Groof argues that the practice of transitional governance is helping to specify the meaning of the right to self-determination (p 194). However, associating the emerging legal rules with the principle of self-determination may have drawbacks. It may serve to make their further development more contentious than if they were treated as free-standing customary law. This links to another feature of De Groof’s approach: neutrality on the desirability of the nascent rules. De Groof’s approach is to uncover rather than assess the emerging customary rules. De Groof does not wish to comment, for example, on whether inclusivity in transitional governance is something that should be encouraged. He does, though, provide the reader with a useful overview of the policy debate on exactly this point (p 244). De Groof’s neutral stance overlooks that in uncovering emerging rules, the study may influence practice. Actors may adjust how they present practices in order to encourage or discourage the strengthening of the nascent rules. De Groof’s neutral stance also overlooks that he is well placed—as an expert on the policy and international law of transitional governance—to contribute to an assessment of the desirability of the nascent customary rules. The literature on transitional governance is often concerned with best practice for policy choices. De Groof’s study is pioneering.4 It targets the policy debate and argues for the importance of an international legal perspective. However, it is possible to find other international legal studies, which, although not focused on transitional governance, address themes and practices that overlap to some extent with those found in De Groof’s work. Some of these studies, such as Bell’s work on peace agreements and Melandri’s work on post-conflict reconstruction,5 also make arguments about the need for rethinking the meaning of the right to self-determination in circumstances of conflict-related constitutional disruption. De Groof could have done more to situate his work in relation to the arguments of scholars such as Bell and Melandri. This would have further strengthened the contribution of State Renaissance for Peace to the broader debate on the relevance and meaning of the right to self-determination after conflict. Overall, this is a thoroughly researched book, which presents an important thesis on a challenging and under-explored topic in international law. There is much in the book that will be of interest to the general international lawyer as well as specialists in matters of conflict and security law and policy. Footnotes 1 EHD De Groof, The Features of Transitional Governance Today <https://www.politicalsettlements.org/publications-database/features-of-transitional-governance-today/> accessed 10 May 2021. 2 ibid 1–2. 3 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, UN General Assembly, 24 October 1970, A/RES/25/2625. 4 See also EHD De Groof and M Wiebusch (eds) International Law and Transitional Governance: Critical Perspectives (Routledge 2020). 5 C Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria (OUP 2008); M Melandri, Self-Determination, International Law and Post-Conflict Reconstruction: A Right in Abeyance (Routledge 2018). © Oxford University Press 2021; All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Conflict and Security Law Oxford University Press

Emmanuel H. D. De Groof, State Renaissance for Peace: Transitional Governance under International Law

Journal of Conflict and Security Law , Volume Advance Article – May 16, 2021

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Oxford University Press
Copyright
Copyright © 2021 Oxford University Press
ISSN
1467-7954
eISSN
1467-7962
DOI
10.1093/jcsl/krab008
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Abstract

The book under review is a study of the international legal aspects of transitional governance. There is no established transitional governance-specific international legal framework. There is, though, a considerable amount of practice, especially since the end of the Cold War, of international support for transitional governance ‘with the declared intention to bring peace and security in conflict-riven states’ (p 4). Redefinition of the social contract, through the overhauling of a state’s constitution and its institutions, is viewed as an effective conflict resolution mechanism (p 6). De Groof’s study encompasses over twenty situations of transition, including, for example, Cambodia (1991), Afghanistan (2001) and Libya (2011) (pp 82–85). De Groof’s main interest is in whether and how transitional governance—‘public authority exercised during the interregnum’ (p 4)—is regulated under customary international law. The focus of the first part of the book is on mapping and disaggregating the practice of transitional governance. The middle part brings into focus nascent customary international law applicable in situations of transitional governance: the ius in interregno. The concluding part considers the limits to external influence over transitional governance. One of the important contributions of the book is the framework it provides for analysing transitional governance as an international legal practice. The circumstances of the transitions that De Groof examines, such as South Africa (1994), Somalia (2004) and Ukraine (2014), vary considerably. However, De Groof shows that at a higher level of abstraction the examples of transitional governance in his book share common features. The governance arrangements initiated in response to conflict are provisional and are self-regulated, sidestepping extant constitutional norms (p 6). In addition, most of the examples include four stages: (i) pre-transition (marked often by a political event, such as a ceasefire); (ii) foundation of the transition (often grounded in an instrument such as a peace agreement); (iii) the interregnum—the interim rule as such; and iv) the post-transition—creation of the new government onwards (p 124). Another prominent feature is international attention—often in the form of extensive assistance, coordinated by contact groups of interested states (pp 49–52). De Groof presents the common features of transitional governance in a series of accessible tables with additional details provided in an accompanying report available online at the homepage of the Political Settlements Research Programme.1 De Groof’s main international legal argument is that ‘[a]n international rule of law regulating the conduct of states in transition is currently germinating around a core of existing law.’ (p 270) Transitional governance is argued to be limited rationae temporis: the transitional government should exercise its ‘duties on a temporary basis, that is with the aim of being replaced on the basis of new elections or laws’ (p 270). The transitional government is also limited rationae materiae: the transitional government should respect its mandate, which involves preparing for the future without predefining it (p 270). The third strand is that transitional governance ‘must be carried out inclusively’. (p 271) Transitional governments ‘are expected to favour broad and progressively inclusive political participation during the interregnum whereby answers to questions as to whom to include, how and when are gaining precision.’ (p 271) De Groof presents these nascent rules of customary international law as specifications of the principle of self-determination for the transitional context (pp 194, 227). De Groof’s is an ambitious argument, which raises several issues. One issue relates to the requirements for a practice to serve as evidence of a ‘nascent’ rule of customary international law. De Groof refers to the standard criteria for the formation of customary international law: ‘general practice, both extensive and virtually uniform (usus), and the conviction that such practice reflects or amounts to law (opinio juris)’ (p 163). De Groof also flags the importance of opinio necessitatis: that the practice ‘is required by political, social or economic exigencies’ (p 163). This is seen as ‘especially important during the custom’s infancy’, when De Groof notes that ‘the conduct may be perceived as more of a social necessity than a legal obligation’ (p 163, citing Conforti and Labella, An Introduction to International Law). De Groof’s study provides evidence of a good deal of practice in line with the purported customary law rules. Moreover, concepts such as inclusivity often appear in international policy documents (p 238). The level of commonality in the practice De Groof surveys is suggestive of a degree of socialisation among interested international actors that exert influence on transitional governance.2 However, De Groof does not focus closely on whether the practice surveyed holds evidence of opinio juris (s 169). This makes it difficult for the reader to judge the extent to which the commonality in the practice stems from emerging international legal obligations. De Groof links the nascent rules he identifies to the principle of self-determination: ‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’3 De Groof argues that ‘the limits ratione temporis and rationae materiae to the interregnum as well as another recurrent TG [transitional governance] practice—inclusivity and domestic ownership—can be read through the lens of this principle’ (p 194; also pp 232, 227, 271). This approach makes sense conceptually. Transitional governments often lack the standard indicators for accepting that a government represents the will of the people: they are often selected (during internationally facilitated peace negotiations) rather than elected and they may struggle to exert effective control of the territory. Thus there is potentially reason for the authority of transitional governments to be limited and for a transition-specific requirement of popular involvement in governance. However, De Groof does not spotlight the issue of whether the relevant actors view the emerging rules he identifies as derived from the principle of self-determination. It may also be open for the emerging rules to be treated as free-standing, emerging customary law rules. Perhaps this would be preferable. The content and status of the right to self-determination are contested in international law. De Groof argues that the practice of transitional governance is helping to specify the meaning of the right to self-determination (p 194). However, associating the emerging legal rules with the principle of self-determination may have drawbacks. It may serve to make their further development more contentious than if they were treated as free-standing customary law. This links to another feature of De Groof’s approach: neutrality on the desirability of the nascent rules. De Groof’s approach is to uncover rather than assess the emerging customary rules. De Groof does not wish to comment, for example, on whether inclusivity in transitional governance is something that should be encouraged. He does, though, provide the reader with a useful overview of the policy debate on exactly this point (p 244). De Groof’s neutral stance overlooks that in uncovering emerging rules, the study may influence practice. Actors may adjust how they present practices in order to encourage or discourage the strengthening of the nascent rules. De Groof’s neutral stance also overlooks that he is well placed—as an expert on the policy and international law of transitional governance—to contribute to an assessment of the desirability of the nascent customary rules. The literature on transitional governance is often concerned with best practice for policy choices. De Groof’s study is pioneering.4 It targets the policy debate and argues for the importance of an international legal perspective. However, it is possible to find other international legal studies, which, although not focused on transitional governance, address themes and practices that overlap to some extent with those found in De Groof’s work. Some of these studies, such as Bell’s work on peace agreements and Melandri’s work on post-conflict reconstruction,5 also make arguments about the need for rethinking the meaning of the right to self-determination in circumstances of conflict-related constitutional disruption. De Groof could have done more to situate his work in relation to the arguments of scholars such as Bell and Melandri. This would have further strengthened the contribution of State Renaissance for Peace to the broader debate on the relevance and meaning of the right to self-determination after conflict. Overall, this is a thoroughly researched book, which presents an important thesis on a challenging and under-explored topic in international law. There is much in the book that will be of interest to the general international lawyer as well as specialists in matters of conflict and security law and policy. Footnotes 1 EHD De Groof, The Features of Transitional Governance Today <https://www.politicalsettlements.org/publications-database/features-of-transitional-governance-today/> accessed 10 May 2021. 2 ibid 1–2. 3 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, UN General Assembly, 24 October 1970, A/RES/25/2625. 4 See also EHD De Groof and M Wiebusch (eds) International Law and Transitional Governance: Critical Perspectives (Routledge 2020). 5 C Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria (OUP 2008); M Melandri, Self-Determination, International Law and Post-Conflict Reconstruction: A Right in Abeyance (Routledge 2018). © Oxford University Press 2021; All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)

Journal

Journal of Conflict and Security LawOxford University Press

Published: May 16, 2021

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