Self-Determination, International Law and Post-Conflict Reconstruction

A Right in Abeyance

Manuela Melandri

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429880988
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The right to self-determination has played a crucial role in the process of assisting oppressed people to put an end to colonial domination. Outside of the decolonization context, however, its relevance and application has constantly been challenged and debated. This book examines the role played by self-determination in international law with regard to post-conflict state building. It discusses the question of whether self-determination protects local populations from the intervention of international state-builders in domestic affairs. With a focus on the right as it applies to the people of an independent state, it explores how self-determination concerns that arise in the post-conflict period play out in relation to the reconstruction process. The book analyses the situation in Somalia as a means of drawing out the impact and significance of the legal principle of self-determination in the process of rebuilding post-conflict institutions. In so doing, it seeks to highlight how the relevance of self-determination is often overlooked in this context.

1
Statehood, state failure and state-building in international law

1.1 Introduction

International state-building has developed as a strategy for conflict resolution as part of the evolution undergone by UN peacekeeping in the 1990s. Whilst the main function of traditional peacekeeping missions was to monitor borders, supervise ceasefires or reestablish buffer zones, post-Cold War peacekeeping mandates became more complex and far-reaching. Complexity is reflected both in the breadth of mandates and range of tasks that such operations set out to perform, and size – including whether there is a civilian presence in addition to the military component. Multidimensional peacekeeping operations indeed include a number of components such as ‘military, civilian police, political, civil affairs, rule of law, human rights, humanitarian, reconstruction, public information and gender units’.¹

In particular, state-building components play a central role of multidimensional peace operations and the deployment of both resources and people (civilians or troops) with a state-building mandate has by now become a constituting feature of the responses elaborated by the international community to address the needs of states recovering from conflict. As a result, state-building programmes are by now a routinised practice in international public policy and a recurrent aspect of post-conflict reconstruction. This systematic use of state-building programmes to assist states in transition from conflict to peace was matched by increasing scholarly attention, so that the literature on this topic is by now conspicuous and cross-disciplinary.

This introductory chapter aims to ground the discussion on post-conflict state-building from the perspective of international law. In a review essay, Chesterman identified the existence of four main trends in state-building literature: a first set of works focuses on what happened; a second on how we can do this better (best-practices type of studies); a third looks at what this phenomenon means for sovereignty; and a fourth examines the legal questions that arise in this context.² This chapter focuses on the fourth set of literature, and aims to identify what are the key principles of international law to regulate state-building.

The chapter proceeds in two steps. Section 2 briefly explains how international law scholars have approached the issue and sets forward the idea that state-building is not about ‘building’ or creating states in a legal sense. Instead, it is about preserving existing states by restoring an effective government where government is missing or dysfunctional. In so doing, it is argued that failed states, likewise functioning states, are protected by international law applicable in times of peace because the lack of a central government does not question a state’s existence in the legal sense. Section 3 sets out to outline the key structure of the overarching framework of protection afforded by failed states under international law, and points to the limits and unresolved issues that international law scholarship has to grapple with in dealing with state-building practice. Ultimately, the chapter concludes by identifying the need to better explore the role of self-determination in the area of state-building research.

1.2 Recovering from conflict in international law

In legal scholarship there is an ongoing discussion regarding the law applied and applicable to state-building. This section offers a synthetic overview of this current debate and provides a fresh suggestion for how we should think about state-building in international law at a very basic level. The argument advanced here is that only looking at this phenomenon from an appropriate conceptual framework can lead us to identify what are the key legal principles that regulate this practice. These principles, in their turn, will constitute the sources of limits for state-builders’ actions and will therefore guide our interpretation of what state-builders are and are not allowed to do in facilitating transitions.

In the existing debate on how international law deals with state-building, I have identified three different methodological approaches through which current scholarship examines the role(s) played by international law in dealing with transitions from conflict to peace and will briefly discuss them in turn. There is a first set of works which uses an ‘inductive approach’, whereby scholars look at practical examples of state-building with an eye to identifying legal patterns that can document the current status of the law on this matter. Works adopting this approach study in depth a single case or, alternatively, more cases in a comparative perspective, with a view to establishing the significance of examined practice for general international law and for the development of the discipline.³ Of this set of works, the vast majority so far has focused on one specific model of state-building assistance: transitional administration.⁴ Scarce, less systemic analysis is available on other forms of post-conflict assistance such as the so-called ‘light footprint’ or ‘assistance model’.⁵

A second set of works adopts a ‘deductive approach’, whose animating question is the extent to which international law can serve as a framework to shape state-building activities. Scholars using this approach aim to identify what direct role international law can play in local contexts, exploring what are the applicable international norms in a variety of practical post-conflict situations. This kind of approach has been widely used in studies dealing with justice reform, attempts at (re-)establishing the rule of law, efforts to elaborate codes of criminal procedure and the designing of post-conflict constitutions.⁶ In general, it is widely recognised that state-builders are expected to at least act in compliance with international norms such as customary human rights law, hence the real issue is how to promote these norms effectively.⁷ A general aim of these studies is indeed to identify lessons learnt to be applied to other contexts: they aim to spell out the advantages of using universal principles of law and to identify the risks and limits of adapting them to culturally and politically specific contexts.

Finally, a third set of literature considers the issue of state-building in a more overarching sense, and fundamentally questions the way international law approaches state-building. In this view, post-conflict reconstruction is seen as a stand-alone phenomenon that is, at present, primarily regulated through ad hoc regimes which develop specifically for each and every situation.⁸ In the case of UN-mandated engagements, the applicable regimes are created by one or more UN Security Council resolutions, where each resolution is designed to apply to a specific situation taken in a concretely defined time-framework.⁹ The resolutions apply together with other general principles of law, at the intersection of various branches of law, and of customary and treaty law provisions that are normally applicable to post-conflict settings.¹⁰ All together, the combination of these instruments, norms, principles and provisions constitute the legal framework though which state-builders are allowed to operate.

Proponents of a holistic approach deem that this fragmented legal regime is inappropriate to regulate reconstruction and state-building efforts, and suggest the need to elaborate a specific legal regime capable of applying to transitions from conflict to peace. As Christine Bell put it,

Lawyers dislike ‘quasi’ legal regimes, laws that do not contemplate or fit the facts, and radical legal pluralism, whereby it is constantly unclear which legal regime applies and has precedence. From this dislike derives an instinct to codify a jus post bellum that would regulate post-conflict dilemmas more clearly and more appropriately. If international law is now a law of regimes, and the post-conflict environment has no specific or appropriate regime, then, the argument runs, it now needs one.¹¹

From this debate has indeed sprung the idea of creating a jus post bellum. The term itself is borrowed by Just War theorists,¹² but it is understood in the legal sense as ‘a framework to deal with [the] challenges of state-building and transformation after intervention’.¹³ The debate on jus post bellum is still at an early stage, with academics discussing very basic aspects of this concept such as its general meaning, content and operation – and with some questioning the usefulness of jus post bellum altogether.¹⁴ Given the relative novelty of the discourse, there is potential for innovative thinking in this area, or at least wide scope for igniting academic discussion. Such potential is clearly shown in the fast-growing interest that the debate on jus post bellum has witnessed in legal scholarship over the past 10 years.¹⁵ Many international law scholars seem indeed keen on supporting the development of a body of law which assigns international law a clearer role in guiding transitions from conflict to peace.

In the present work I do not aim to add substance to the debate on jus post bellum. I concede, however, that jus post bellum is particularly useful as a tool for drawing attention to the need to study the operation of international law in the context of post-conflict reconstruction.¹⁶ The discourse on jus post bellum, indeed, does not exempt international lawyers from questioning what current international law applies to state-building and how this regime functions. In fact it would be inappropriate to think that a jus post bellum needs to be created from scratch in order to respond to a legal void.¹⁷ Rather, jus post bellum should be seen as ‘a call to identify the law that is applicable in the post-conflict setting, to assess its relevance, and to think about its scope for adaptation through new law’.¹⁸ Legal scholarship is therefore called upon first to understand what is the legal framework that applies to state-building and to investigate how it operates. Having done this, we might then be able to discern what aspects of the currently applicable law are suitable to guide transitions from conflict to peace, and what aspects would instead need to be modified in order to guarantee that transitions are better implemented.

The remaining part of this section is thus dedicated to identifying the international legal framework which applies to the phenomenon of post-conflict state-building at the macro-level. To do so, we must put forward a conceptual framework that enables us to make sense of state-building as a stand-alone phenomenon in the perspective of international law. Doing so will enable us to identify a set of key principles whose functioning can lead to a definition of what are the scope and limits of action of international state-builders. In order to move the discourse on state-building forward, international law scholarship – be it concerned with a specific situation or with a more general discourse – must tackle the crucial issue of what international actors are and are not allowed to do to rebuild war-torn states. The issue of limits to action is important because state-building tasks require decision-making authority in areas that were traditionally conceived to be of exclusive concern to domestic governments as matters for internal sovereignty – such as designing institutional, economic and security sector reforms.

Starting with international state-building programmes conducted under the auspices of the United Nations, it is possible to observe that limits to action would come from three main sources. In the first place, for every situation in which state-building programmes are implemented there are specific limits that originate from the reconstruction mandates themselves. Such limits draw the contours of the single, ad hoc mandates designed to rebuild war-torn states (typically included in a Security Council resolution), restrict the scope of action of engaged state-builders and are specific to the situation for which they were created.

Secondly, in a more overarching sense, UN-led state-bu...