MPSA Blog: Top 10 Posts from 2016

MPSA Blog: Top 10 Posts from 2016

Regardless of your research interests, your academic (or Alt-Ac) role, or your aspirations for the new year, there is something on this list of MPSA’s most popular blog posts from 2016 that is sure to pique your interest:

MPSA would especially like to thank regular contributors Newly Paul, Adnan Rasool, Michael A. Smith, and Harry Young for sharing their research, political perspectives, and pedagogical insights with us this calendar year. We look forward to highlighting even more NSF-Funded research, conference presentations, and MPSA member interviews in the coming months. If you’re interested in sharing your work with MPSA’s members and the discipline, we’d love to hear from you.

Best wishes for a safe and productive 2017!

Supranational Courts: Are they the New Legal Titans?

The International Court of Justice
The Hague, Netherlands – August 2, 2016: The International Court of Justice is the primary judicial branch of the United Nations. Seated in the Peace Palace in The Hague, Netherlands.

In October 2016, South Africa followed Burundi in withdrawing from the International Criminal Court (ICC) asserting bias by the United Nation’s Security Council in its case referrals (Duggard, 2013; Strydom, 2015; The East African, 2016). They point out that the United Nations Security Council has referred cases from Sudan and Libya with only black Africans brought before the court (BBC, 2015). South Africa and other African states charge that the ICC has “lost its direction” (Strydom, 2015). Established in 1959, the European Court of Human Rights (ECtHR) is another exemplary supranational court. The United Kingdom’s (UK) Conservative Party pledges to sever ties with the ECtHR (Travis, 2015) as it impinges on British sovereignty (Watt, 2015). The previous Labour Party government was supportive of the ECtHR and continues to support it while in opposition (Hansard, April 26, 2016). During the last half century, there has been a marked increase in the number of supranational courts and the number of acceding states. Having acceded, however, why do states sever ties with supranational courts?

In acceding, states delegate legal decision-making authority to supranational courts (Helfer and Slaughter, 1997).  As the highest court in the judicial system, the final appellate court is the last judicial forum reviewing legal challenges. A central issue for all states, therefore, is the organization of the judiciary and its role in furthering “peace, order and good government” (POGG) as a feature of constitutional rule (Yusuf, 2014).  The final court lends legitimacy to the policies of the governing coalition, which Dahl (1957) describes as the congressional “lawmaking majority” (284). This legitimizing role makes the judiciary an important participant in the national decision-making process (Dahl, 1957) as governing coalitions pursue their visions of POGG. It is itself, therefore, a “national policy maker” (Dahl, 1957). Shapiro (1964) refers to this notion as “political jurisprudence” (16). As challenges to policies percolate up the judicial hierarchy, legitimization of those policies by the judiciary is an important issue (Dahl, 1957). Reliance upon a supranational court as the final appellate court is seemly incompatible with the modern notion of sovereignty (Swinfen, 1987). I suggest, therefore, that the governing coalitions will seek to remove the supranational court if it perceives a disconnection with the court. This perception is influenced by changes in the political environment that make the state more sensitive to a court over which it has no direct control. If the governing coalition perceives a disconnection with the court, the remedy is to replace it with a national court. I suggest that states sever ties when they perceive the court as incompatible with the policies goals of the governing coalition. This potential juncture is a function of a change in the political environment that increases the disconnection between the governing coalition and the supranational court.  At that juncture, it is more likely that the governing coalition will abandon the court. The importance of the political will to effect change was summarized by the former President of the New Zealand Court of Appeal, Sir Thaddeus McCarthy. He stated in 1976 that he had no doubt that the questions surrounding severing ties with the JCPC “are ultimately political questions” (Richardson, 1997).

International Criminal Court
The Hague, Netherlands – July 5, 2016: The International Criminal Court forecourt, entrance and sign at the new 2016 opened ICC building.

I assert that the political environment can be captured in three categories – drastic change, subtle change, and no change. I define the categories as follows: (1) no change – the state does not experience any change in the political environment when a new governing coalition comes to power with a commitment to the constitution and the continued good governance of the state. This does not preclude law reform, but does not fundamentally change the relationship between the state and its citizens. While there may be a new governing coalition after an election cycle, the basic tenets of a free political environment continue. The new coalition basically pursues the same broad policies but pledges to do a better job; (2) subtle change – the election of a governing coalition with a new vision that underpins new domestic and international policies (Elordi, 2000). These are pursued without fundamental systemic changes to the governing institutions or the rights and liberties of the citizens of the state. While this may also involve constitutional changes, the changes do not fundamentally change the governance landscape (Grace, 2015); and (3) drastic change – includes the promulgation and adoption of a new constitution that fundamentally changes the governing institutions, as well as the rights and liberties of the citizens of the state. In other words, these changes generally alter the relationship between the citizens and the state, or they expand or reduce the range of fundamental constitutional rights (Grace, 2015; Thoburn v Suderland City Council, 2003). Though the process may differ, drastic and subtle changes increases the likelihood that ties with the supranational court will be severed but no change maintains the status quo.

There is evidence that supranational courts will continue emerge in the world community (Specht, 2015). As supranational courts such as the ICC, the ECtHR, the International Court of Justice, the Caribbean Court of Justice, the Inter-American Court of Human Rights and the African Court on Human and People’s Rights continue to adjudicate and other courts emerge around the proliferation of international law, understanding the dynamic relationship with states is crucial. Ultimately, ties with supranational courts depends much less on the performance of the court. It is the governing coalition’s emergent political will in a changed political environment that drives the relationship with the court. The future of supranational courts, therefore, depends on the domestic political environment that influences governing coalition commitment to development and vibrancy of supranational courts.

About the author: Harold Young is an Assistant Professor at Austin Peay State University in Clarksville, Tennessee. His research area is Public Law and examines an American and comparative perspective on judicial institutional changes and decision making. In his previous lives, he was a social worker, a health communications project manager and an attorney-at-law. He can be reached via email at youngh@apsu.edu.

 

In the Shadow of Tragedies: Our Responsibility to Protect

MPSA Blog - In the Shadow of Tragedies: Our Responsibility to Protect

“State sovereignty, in its most basic sense, is being redefined-not least by the forces of globalisation and international co-operation. States are now widely understood to be instruments at the service of their peoples, and not vice versa.”
     – Kofi Annan (1999), Former Secretary General of the United Nations

In the shadow of the tragedies in Cambodia, Rwanda, Somalia and Kosovo, the world is witnessing the horror of the ongoing and complicated intrastate war in Syria and the smoldering conflicts in Burundi and Ukraine (to name only a few). Calls for intervention to stop flagrant human rights violations have not yielded real results. It begs the question of the responsibilities of the state for the welfare of its citizens and what responsibilities other states have to those impacted by intrastate wars.

The modern state is generally recognized as having emerged in 1648 with the Treaty of Westphalia that ended the Thirty Year War (1618-1648). The state is a pillar of the international community where the sovereign state as the primary and most powerful actor in international relations (Mearsheimer 2001). Keck and Sikkink (1998) argue, however, that the state has lost some of its potency as a political variable and have elevated the role of non-state actors. Further, the authority of the state “is, increasingly, being either shared with, sustained by, or constrained by these proliferating authorities” (Strange 1995, 67). The growth and thickening of international law, therefore, is an important issue as the role the state plays in global politics evolves.

The effects of these changes indicates a reappraisal of the concept of sovereignty and internationalizes the protection of human rights. This may be opening the door for more internationally sanctioned humanitarian intervention particularly when the state is experiencing intrastate conflict. Humanitarian intervention can be defined as the threat or use of force by a state, group of states, or international organization to protect people in the target state (Murphy 1996). Humanitarian intervention also includes those state interventions whose declared goal is to stop or prevent human suffering though the intervening state(s) may have unrelated and/or underlying motives for intervening (Voon 2002). The debate around the issue of protecting of human rights, therefore, juxtaposes the support of universal human rights against the premium of national sovereignty (Booth, 2001). Further, the idea of international human rights law departs from the concept of state sovereignty and the state-centric approach to international law (Brown 1999). Finnemore’s (2003) assertion that post-cold war intervention in states are legitimized when based on humanitarian grounds, not only changes the purpose for which interventions are used but possibly rearranges the concept of sovereignty (see also Ling 2013; Hopwood 2013).

This issue of a third party state(s) intervention can be examined through the prism of two questions. First, what is the status of ‘sovereignty’ if a government exercises authority or acquiesces to actions detrimental to the citizens? Second, can a new paradigm of legitimatized humanitarian interventions be reconciled with the asymmetry of power between states? An examination of the U.S. policy developing out of the Kosovo intervention in 1999 may be helpful in understanding the state’s criteria for supporting humanitarian intervention. Following President Clinton’s speech on U.S. involvement, National Security Advisor, Sandy Berger, offered three criteria underpinning the policy: (a) there must be genocide or ethnic cleansing; (b) the U.S. must have the capacity to act; and (c) a U.S. national interest must be at stake (Brown 1999). It should be noted, however, that the commitment to act does not reflect any international commitment but primarily reflects U.S. interests.

This combination of state foreign policy doctrine and use of force for humanitarian interventions, concerns some states. Smaller and weaker states are concerned that this trend makes them possible targets under the ruse of a ‘humanitarian intervention’ by stronger states (Hall 2013). This dampens clamors for intervention in other troubled states as leaders wonder if they could be next. Even more powerful states have reservation as was seen with Russian opposition the intervention in Kosovo although that did not preclude their intervention on the Crimean Peninsula. In reality, condemnation of or action in support of human rights are not distributed equitably to suspected and known violators (Schachter 1995).

The literature is not short on suggested ways forward. Despite discussions about prevention and enforcement of international law (Wang 2004; Telhami 1995; Damrosch 1993), the focus continues to be on armed interventions (jus ad bellum) and the nexus between protection and international criminal tribunals (jus post bellum). Former U.N. Secretary General, Kofi Annan (Annan 2012), calls for the international community to “devote our energies to strengthening and using those measures short of the use of force. These must include more effective and enforced use of targeted financial, travel, and economic sanctions on the leadership” (para 28). I suggest, therefore, that the primary goals should be twofold. First, preventing the crisis in the first place thereby retaining the integrity of the individual, the state, the U.N. and international law system. Second, building the political will to respond to crisis thereby upholding the world community’s commitment to human rights and international law with force as a last resort. Meanwhile, wars rage and smolder in the hotspots around the world as a seemingly paralyzed international community struggles with sporadic attempts at cease fires and humanitarian aid to victims.

About the author: Harold Young is an Assistant Professor at Austin Peay State University in Clarksville, Tennessee. His research area is Public Law and examines an American and comparative perspective on judicial institutional changes and decision making. In his previous life he was a health communications project manager, a social worker and an attorney-at-law. He can be reached via email at youngh@apsu.edu.