Since its inception, the responsibility to protect (R2P) principle has been progressively narrowed in its scope and application in order to capture widespread support from governments and civil society. However, as this chapter will explore, R2P came perilously close to failing to recognize the gendered dimension of mass atrocity crimes and the prevention of these crimes. The chapter examines how R2P came to be characterized as ‘gender blind’, and details how, since 2006, the principle’s supporters have engaged and responded to this challenge. The author argues that there is a need to continually theorize and engage in areas of common discourse to collectively progress the mutual agenda of gender equitable human protection.
Kwesi Aning and Frank Okyere
The African Union has been acclaimed for its effort in adopting policies that seek to protect civilian populations from mass atrocity crimes. It has transited from the principle of non-interference to non-indifference through the adoption of Article 4(h) of the Constitutive Act of 2000, which enjoins it to intervene in respect of war crimes, genocide, and crimes against humanity. Article 4(h) and the responsibility to protect share striking commonalities—both are rooted in the notion of sovereignty as responsibility. However, limited progress has been made in translating these normative principles into concrete action. This chapter notes the lingering issues of sovereignty and limited capacity for enforcement, as well as the state-centric approach to prevention without regard for local sources of resilience. Effective implementation of R2P should address the challenges of cooperation between the AU and other organs, and consider hybrid forms of prevention which exist in many African states.
This chapter assesses three key strands in the case law of the Court of Justice of the European Union concerning a central dimension of foreign relations law, namely, the application of international law. The first section focuses on how the Court has reviewed the compatibility of EU-concluded treaties or envisaged treaties with the European Union’s constitutional text and also the review of treaties concluded by the member states. Judicial review powers in relation to treaties have increasingly been included in constitutional texts, but the European Union is distinctive in that its Court of Justice has regularly been called upon to exercise this form of jurisdiction, thus offering potentially valuable foreign relations law insights for constitutional design and practice in other constitutional systems. The second section focuses on the judicial enforcement of treaties and identifies a spate of recent rulings where more international law friendly outcomes would have been possible. A briefer third section focuses on the application of customary international law and highlights in particular the high threshold set for judicial review vis-à-vis such norms. The recent judicial developments identified in each of the respective three sections of this chapter have increasingly been deployed to challenge the traditionally dominant narrative in EU law scholarship of a Court of Justice that adopts a markedly international law friendly approach.
Fateh Azzam and Coralie Hindawi
This chapter looks at Arab perspectives on the responsibility to protect, both at a conventional, state-focused level, and at the level of civil society. The study shows that the Arab region’s views on R2P are varied, nuanced, and subject to change, varying not only between governments and citizens, but also among citizens themselves. The positions expose a widespread tension between a strong attachment to sovereignty, and a willingness to provide support to populations facing danger, in particular fellow Arabs and Muslims. At the same time, the region is united over the perception of an international double standard, which, from an Arab perspective, is symbolized at its worst by the Security Council’s inaction on Palestine. Arab reactions to other conflicts, such as Libya or Syria, however, indicate that although explicit references to the concept are rare, a lively debate on the very idea of R2P is going on in the region.
There is a tendency to view R2P diffusion in the Asia Pacific region as a function of ‘norm containment’, which explains endorsement of R2P as a result of the weakening, deconstruction, or dilution of R2P to render it more compatible with the region’s state-centred security norms and practices. This chapter demonstrates, however, that R2P has diffused in the Asia Pacific region through a dynamic process of negotiation and compromise between international R2P norm advocates and Asia Pacific actors, which has witnessed concession and accommodation on both sides. Through case study analysis of how the governments of Japan and India have engaged with R2P, the chapter argues that the Asia Pacific’s socialization to R2P is most aptly characterized as a balance of R2P norm containment and localization, witnessed in Asia Pacific actors shaping the contours of the R2P norm and accommodating its prescriptions through gradual, incremental normative and institutional change.
This chapter analyzes the systematic relationship of Carl Schmitt’s oeuvre to rhetoric, arguing that his work cannot be detached from its engagement in a simultaneously metaphysical and historical polemic. The encounter between history and metaphysics manifests in the dimension of the commonplace. Schmitt’s contributions to political theory can be understood as attempts to shift the commonplaces through which his time defines itself. Tracing the influence of Schmitt’s early literary criticism on his legal writing, the chapter demonstrates that for him, literature is a school of rhetoric, an exemplary dimension in more than one sense: it is a normative, ethical, and stylistic authority. While Schmitt’s books are contributions to specific legal, political, and critical discourse, they also claim to contribute to the great and urgent concerns of a community. This dimension inherits the genus grande and places his oeuvre at the limits of rhetoric.
Policy practitioners and scholars have tended to treat the responsibility to protect (R2P) and peacebuilding as separate domains. This chapter, in contrast, argues that these two domains are more closely connected than both the policy discourse and much of the academic literature would suggest. Peacebuilding appears to be an integral part of R2P, and peacebuilding strategies aimed at reducing the risks of conflict relapse are core strategies for preventing atrocity crimes. Further, the use of coercive military force to stop an imminent or actual atrocity crime creates its own requirement for post-crisis peacebuilding. Thus, closer analysis of the relationship between peacebuilding and R2P would benefit both practitioners and scholars.
Citizenship in this chapter means membership of a state. Nationhood means membership of a “nation”, which is a particular type of cultural and/or ethnic collective. I first set out the reasons that liberals and anti-liberals have given for making citizenship and nationhood coterminous. Second, I describe the major historical and sociological explanations that were advanced for the processes that helped create this overlap, the methods that states and other political agents have adopted to realize it, and the practical and moral obstacles that these agents have always faced. Third, I discuss the positions of contemporary liberals on the issue, including the position I believe to be appropriate. The discussion concludes that the ideal of full overlap between citizenry and nationhood should be rejected both constitutionally and certainly demographically. However, it endorses arrangements allowing for a limited identification of states’ citizenries with one or a few national groups.
This chapter analyzes the national citizenship regimes adopted by newly independent states and factors that influence the content of these regimes. The chapter examines how the goal of attaining state sovereignty, different visions of and debates over the boundaries of the national community in whose name the new state is constituted, perceived implications of citizenship rules for political and economic power of different groups, and external actors, including other states in the region and international organizations, inform the content of citizenship regimes in new states.
The struggle for universal suffrage has been a paradigmatic political struggle in the modern state, as people have striven to achieve full and equal citizenship. This chapter examines - from a conceptual, legal and historical perspective - the ‘selection’ of voters as one of the core hallmarks of citizenship in modern democracies. It explores the ways in which the ideas and practices of citizenship intersect with the right to vote, allowing us to probe the contribution of citizenship as a legal status underpinning the definition of the franchise to democratic self-government as a political ideal.
This chapter studies the term ‘co-operative federalism’ and the part it plays in the working of Australia's constitutional arrangements. Co-operative federalism, as practised in Australia, is immanent in the functioning of the federation but has an extra-constitutional dimension. It is designed to serve objectives which go well beyond those achievable by the exercise of Commonwealth legislative power and the separate exercise by the States of their powers. It may well have a tendency to centralize power notwithstanding the intergovernmental agreements and supervisory arrangements involved in its implementation. Every topic which is treated, albeit by consensus, as one requiring co-operative action becomes potentially a topic of which it can be said that it is best dealt with at a national level.
This chapter considers how comparative foreign relations law might draw on the comparative study of national constitutions, an increasingly large and vital field, and sets out an agenda for future work in the area. It provides some basic data from a comparative examination of formal constitutional provisions relevant to foreign relations. In doing so, it argues that a “foreign relations lens” helps elucidate an underappreciated core purpose of these foundational texts. That is, one of the central functions of national constitutions is to structure international relations. The chapter next turns to normative considerations, showing how the shifting boundaries of constitutional design with regard to foreign relations serve to allocate lawmaking authority. There is a potential for complementarity between international and domestic regulation of some problems, but also the potential that international and domestic norms serve as substitutes for each other. An optimal constitutional design of foreign relations law would take these considerations into account.
Oona A. Hathaway
International law is the product not only of a political and legal process that takes place between states but also of processes that take place within them. Accordingly, examining domestic institutions that states use to create international law is essential to our understanding of international law. And yet to date there has been remarkably little cross-national work examining the role of domestic politics and law in the creation of treaties and other international law. This chapter aims to contribute to an emerging conversation about how best to carry out a more comprehensive examination of differences between states in the law governing their engagement in the world around them. It maps out five areas that offer opportunities and challenges for the study of comparative foreign relations law: first, the choice of methodology, whether quantitative or qualitative. Second, the underrepresentation of certain states in existing foreign relations scholarship. Third, the domestic political and institutional structures that shape the interplay between the legislative, executive, and judicial functions within states. Fourth, the role of geopolitics. Fifth, the chapter sounds a cautionary note about approaching international law through domestic law. The challenge for scholars the world over will be to fill out this agenda and then begin to tackle it.
This chapter examines how the agenda of prevention of armed conflict relates to the principle of the responsibility to protect (R2P). While R2P was originally assumed to be fully compatible with the goals and principles of traditional conflict prevention, subsequent research has disentangled the relationship between R2P and conflict prevention, arguing that conflict prevention is a necessary but not a sufficient component of atrocity prevention, and that atrocity prevention needs to include a strategy for deterring potential perpetrators. Recent scholarship has started to examine the implications of marrying R2P to international criminal law categories. What follows from R2P’s move to crimes is an individualization of the principle, as well as a shift towards partiality, intrusion, and coercion. This means that where a threat of atrocity crimes occurs in the context of armed conflict, it cannot simply be assumed that R2P and conflict prevention are pulling in the same direction.
Jenny S. Martinez
This chapter explores the allocation of authority between executive and legislative branch officials with respect to three areas: general foreign relations powers such as reception of ambassadors and recognition of foreign governments; treaty negotiation, ratification, and implementation; and war powers. Overall, it appears that most modern constitutions contemplate the sharing of foreign relations authority between the executive and legislative branches, with the precise boundaries of power more often determined by practicalities, politics, and particular circumstances than abstract theories. In particular, constitutional design choices are often influenced by the history and political context of a particular country and region, and provide a lens into what a given society views as important, dangerous, or problematic. The variations in design choices refute the notion that most foreign relations powers are inherently “executive” or “legislative” in nature, and instead highlight the ways in which design choices are embedded in broader social and political contexts.
Gary Jeffrey Jacobsohn
This chapter examines the concept of constitutional identity as it applies to the Indian Constitution. It first considers the problem of constitutional identity, with particular emphasis on the preservative function of the constitution. It then explains how the constitution acquires an identity that emerges dialogically and represents a combination of political aspirations and commitments reflective of a nation’s past. It also explores the static and dynamic perspectives on identity with regard to the transformational agenda of Indian constitutionalism, along with the underlying politics of constitutional identity and the judiciary’s articulation of the meaning of constitutional identity. The chapter concludes by reviewing two highly controversial cases that have important implications for India’s constitutional identity.
This chapter examines the constitutional politics of Congress, with particular emphasis on the ways constitutional values are shaped by congressional interpretations of the Constitution. It first considers the role of Congress in constitutional decision-making at all phases of the legislative process, including the enactment of legislation, oversight of government departments and agencies, confirmation of judges and justices, and countermanding of the Supreme Court through constitutional amendments. It then compares the constitutional interpretations of early Congresses with those of today’s Congress, focusing on impediments to Congress’s constitutional interpretation. It suggests that lawmakers no longer have incentives to take the Constitution seriously, and outlines the reasons this is so.
This chapter examines the constitutional politics of the executive branch in the United States. It first reviews some important concepts in the study of constitutional politics involving the presidency, including representation, formal and informal powers, unilateralism and extraordinary powers, and war, pointing out the significance of the president’s status as both a domestic and a global representative, and highlighting tensions between the “foreign” and “domestic” presidencies. It considers the changes in presidential power since the early republic and suggests that assessing whether these changes have been a boon or bane will require literatures in political science and legal studies to deepen their mutual engagement.
This chapter examines the constitutional politics of the judiciary, with particular emphasis on judicial structure, judicial personnel, and judicial power. It first considers the constitutional politics of judicial structure, with particular attention to changes in the size of the Supreme Court and the organization of the federal judiciary. It then examines the constitutional politics of judicial personnel, including presidential deliberations about Supreme Court nominations and senatorial assessments as part of the Supreme Court confirmation process. Finally, it analyzes the constitutional politics of judicial power—chiefly in the context of debates surrounding federal jurisdiction and the role and scope of judicial review. It concludes with some brief thoughts on the unique ways in which the politics of the judiciary are thoroughly and in manifold ways constitutionalized.
Constitutional review has been studied by legal scholars, economists, political scientists, and other social scientists. In this chapter, the author reviews the theory and practice of constitutional review around the world, taking into account institutional variations, judicial politics, and recent empirical evidence. Ideology plays an important role in constitutional interpretation. However, constitutional judges face a multiplicity of additional goals that dilute their party alignment. Current empirical work on constitutional review seems to confirm such a theory. Understanding the politicization of the courts usually follows a more complex framework than a simple conservative–progressive division.