Rule Of Law Initiatives Research Articles

Islamic legal culture in Uzbekistan

There was a widespread euphoria in the 1990s that introducing Western-style legal institutions and traditions would play a pivotal role in promoting the rule of law and democratization in post-Soviet societies. Like other post-Soviet states, Uzbekistan has become a ‘laboratory’ for testing various global (Western) good governance and rule of law initiatives. As a result of these interventions, Uzbekistan’s legal system represents a peculiar blend of Western and Soviet legal cultures: Western” from the “law in books” perspective (when we analyze its written laws and regulations) and “Soviet” from the “law in action” perspective (when observing how laws are applied and enacted by state institutions and officials). However, one dormant but highly salient legal order overlooked in the literature on Uzbekistan is the legacy of Islamic legal culture. With this in mind, this article explores the legacy and context of Islamic legal culture in Uzbekistan. I argue that the more the focus moves from state-centered understandings of law to ethnographic analyses of everyday life and micro-level social processes and structures, the more it becomes discernible that Islam serves as a legal order in Uzbekistan. These processes will be explored through the ethnographic study of mahallas (neighborhood communities) in Ferghana, Uzbekistan.

The Price of Transitional Justice: A Cost‐Benefit Analysis of its Mechanisms in Post‐Revolution Phase

Transitional Justice [hereinafter T.J.] in the post-revolution phase refers to the policies that aim to deal with the autocratic past-regime violations against its people to achieve accountability and democracy and promote human rights and the rule of law. To achieve these goals, the United Nations, within its Rule of Law Initiative, issued in 2010, a set of five mechanisms that work as guidelines for nations recovering from conflicts. I argue that whatever the mechanism or combination selected by a society transforming from an autocracy into democracy is, the nature of these mechanisms requires a trade-off between multiple considerations. To explain this inevitable trade-off, I go through each mechanism in detail, analyze it from both legal and economic perspectives, and then provide a basic cost-benefit analysis. I suggest that transitional justice as a constitutional arrangement requires a holistic approach in its adoption and application because this initial cost-benefit analysis cannot be standardized for all cases. I also suggest that transitional justice policies that take into account proportionality, a combination of different mechanisms, customization of the mechanisms upon the relevant case, and adopting these policies in the formality of basic or organic laws may be expected to have the most effective outcomes achieving the goals of T.J. with the least legal complications.

Conjuring the Criminal State: The “State-Idea” in Post-Conflict Reconstruction and International Statebuilding

AbstractA central challenge of post-conflict recovery is the reconstruction of state institutions, which often emerge from war destroyed or otherwise unable to carry out core administrative activities. But scholarship on international peacebuilding and post-conflict politics tends to focus narrowly on the functional aspects of the state, the state-system, to the neglect of another critical dimension: the state-idea, or its symbolic and normative authority. How do internationally backed institution-building efforts shape the ideational foundations of the state following conflict? Drawing on original interviews and archival research from postwar Guatemala, this article illustrates how, paradoxically, postwar peacebuilding and rule of law initiatives that sought to strengthen the capacity of state institutions simultaneously contributed to the discursive construction of the state as a criminal organization. Specifically, the United Nations’ International Commission against Impunity in Guatemala (CICIG), in seeking to combat state-based criminal structures and bolster institutions, transformed long-held conceptions of Guatemala's “weak” or “failed” state into an alternative vision of the state as a powerful complex of clandestine, predatory networks, and practices. In conjuring the state as a criminal organization that appropriates the formal organs of political power for illicit ends, this international statebuilding initiative generated a coherent and durable state-idea that belies key advances in institutional capacity and the rule of law. Overall, this article contributes to growing debates about the unintended, deleterious effects of international statebuilding efforts by demonstrating how distinct ideas of state power come to fill the void between state capacity and legitimacy.

UN Peacekeeping and Local Rule of Law Initiatives in the Central African Republic

To strengthen the local capacity of post-conflict states, multidimensional peacekeeping operations increasingly focus on strengthening the rule of law and building sustainable peace in the mission area. Considerable success was achieved in the Central-African Republic where the UN mission MINUSCA supports the local government in establishing the Special Criminal Court and restoring other local judicial mechanisms. This paper explores how MINUSCA supported local rule of law mechanisms in the Central African Republic, and how this contributed to so-called local justice. Special attention goes out to MINUSCA's support to the CAR government in establishing the Special Criminal Court, by including the local population in doing so as well as by strengthening local ownership and knowledge on existing judicial mechanisms. In arguing that the joint effort made by UN peacekeeping troops and local actors strengthens local justice, this paper underlines the importance of tackling the war economy as an important obstacle to establishing a functional rule of law in the CAR.

International Constitutional Law – Inclusive, but Still Selective?

Abstract Developing international constitutional law, apart from difficulties concerning its definition, faces certain well-known problems – ranging from its pluralistic mode of creation to its enforceability, but has also to scrutinise its aims. If its aim is to at least provide a global reference framework for constitutional principles and concepts – since serving as a common set of values does reach its own limits rather quickly eg concerning fundamental issues such as the role of women in society or sustainability – it has to be inclusive in nature. Certain areas of international law, such as human rights – via Universal Periodic Review or treaty monitoring bodies such as CAT – or WTO law interact closely with national constitutional and/or regional international law (ECHR) and or regional constitutional/public law (eg EU Law). Therefore, their ideas may be taken up – voluntarily through courts or academia, due to examination mechanisms through governments or tribunals – be modified (if necessary to fit into a national constitutional system or supranational constitutional framework) and transported back into the global community (eg as feedback within a WTO case or an UPR). This, however, is event driven. Therefore, it cannot be a carefully conceptualised coherent law such as national constitutions. National (and land constitutions, which may also provide important ideals) constitutions in general serve several functions: as set of values eg in the area of fundamental rights, for structuring the state functions by setting up institutions and modes of operation, and as reference for the interpretation of norms eg in court cases. Their overall purpose is to provide a coherent inner regime. Nevertheless, by promoting certain selected ‘institutionalisable’ constitutional ideas (for example through the rule of law initiative) we can aim to strive from a fragmented towards a more coherent global framework.

Public Accountability for Private International Financing of Natural Resource Development Projects: The un Rule of Law Initiative and the Equator Principles

A striking feature of public international financing for natural resource development projects in developing economies is the introduction of public accountability mechanisms to ensure that these projects comply with social and environmental principles and standards. As the public international financing of such projects gives way to private international finance, this article will examine whether similar accountability mechanisms have been developed for this type of private international financing for such projects. Within this context, the third iteration of the Equator Principles has recently been adopted by a growing number of private international finance institutions in the ‘project finance’ field. By comparing these public and private accountability mechanisms, with reference to the un’s ‘rule of law’ initiative, this article will assess whether there has been adequate replication of public accountability standards in the movement from public to private international financing of natural resource projects, especially within developing economies.

Promoting Justice Reforms in Central Asia: The European Union’s Rule of Law Initiative as Part of a Comprehensive Democratization Strategy?

This article examines the European Union’s (eu’s) rule of law promotion in post-Soviet Central Asia. More specifically, it focuses on the eu’s Rule of Law Initiative, which aims to support legal sector modernization and judicial reforms in the region. Drawing on the “democratic rule of law” (droL) model developed by Magen and Morlino, the article analyzes whether the Rule of Law Initiative can contribute to democratization processes in Central Asia. Based on content analysis of eu documents and semi-structured expert interviews with European and Central Asian stakeholders, the study reveals the eu’s very limited ability to trigger genuine reform. The main reasons are its lack of leverage in the region, limited financial resources, and reliance on the joint ownership approach in the context of authoritarian states.

Council of Europe and the Rule of Law

The Council of Europe works on a daily basis to promote and strengthen the rule of law in and among its member states. The Council of Europe has taken up the European Commission’s invitation to engage in further discussions on the complementarity of existing and new mechanisms. The European Union’s rule of law initiative could become a catalyst for a further deepening of the strategic partnership between the EU and the Council of Europe. The ten founding states of the Council of Europe all agreed on the importance of the rule of law as a fundamental value and steering principle for future work of the organization.

Gangster’s Paradise? Framing Crime in Sub-Saharan Africa

Recent human rights and rule of law initiatives pursued by both national governments and international institutions are part of a continent-wide project of liberal reform that has altered the landscape of law and governance in Sub-Saharan Africa. The central questions motivating this article are twofold: how have societal and legal categories of crime changed in Sub-Saharan Africa over the last twenty years, and what role has been played by national institutions such as the South African Truth and Reconciliation Commission and international tribunals such as the International Criminal Court? Since this article aspires to say something about both the law and popular discourse on crime, it reviews legal decisions as well as African literature and film.

Latin Justice

Latin Justice

Securitisation, Sectorisation and Goal Displacement: Rule of Law Assistance in UN Peace Operations

This paper draws on new systematic data on UN’s rule of law assistance, covering two decades of peacekeeping and peacebuilding in Africa (1989-2010). The paper examines what type of rule of law assistance the UN is providing, differences and similarities between peacekeeping and peacebuilding missions, and the relationship between policy and practice.Over the years the UN has accumulated a wealth of experience in helping countries establish the rule of law. And yet, providing rule of law assistance that is comprehensive, flexible, and context-adjusted in environments where national institutions have broken down, resources are exhausted and the population is divided and traumatized is a daunting, often overwhelming task.A significant increase in rule of law assistance can be observed since the early 1990s. This concentration covers both peacekeeping and peace-building missions. The fact that the UN is now, more than ever, called upon to help countries re-establish the rule of law raises issues of the organisation’s capacity to effectively and timely respond to the demand. Moreover, while the UN (particularly the DPKO) has demonstrated an accumulation of experiences and knowledge on rule of law assistance, the type of assistance provided is primarily confined to a select set of institutions, challenges and processes. The practical application of rule of law initiatives in peacekeeping and peacebuilding suggests a form of path dependency where assistance is provided in relation to the criminal justice sector and in response to (physical) integrity and security threats. These and other observations give rise to a number of critical questions on the relevance of UN’s rule of law commitment in war-torn societies, the capacity and preparedness of the UN, the importance and use of mechanisms and tools for cooperation and joint initiatives between different UN entities, and the quality and coherence of policy and practical guidance.

Bridging the Gap: The United Nations Peacebuilding Commission and the Challenges of Integrating DDR and Transitional Justice

While peacebuilding is a long-term and complex endeavor, a cacophony of actors and agendas, together with a persistent tendency to focus on short-term needs at the expense of long-term priorities, stymie efforts to build lasting peace. Complex problems call for innovative and integrated interventions. The staples of post-conflict peacebuilding — including, disarmament, demobilization, and reintegration (DDR), security sector reform (SSR), rule of law initiatives, and transitional justice mechanisms ranging from prosecutions to truth commissions — are meant to serve overlapping constituencies and common purposes. In practice, however, such initiatives have often operated on separate tracks, leading to redundancy, avoidable tensions, and lost opportunities. This article focuses on the special challenges that arise out of the need to develop more integrated approaches to DDR and transitional justice and argues that the United Nations Peacebuilding Commission (PBC) must play a stronger role in bringing together this and other pieces of the post-conflict puzzle. Even though the possibility of tension between transitional justice mechanisms and DDR programs cannot be eliminated, careful attention to areas of overlap should be part of innovative and integrated approaches to post-conflict peacebuilding going forward in order to advance common goals. The gains of such an approach would be modest, but worthwhile.

Assessment of the Liberian Juvenile Justice System

At the request of the United Nations Children’s Fund (UNICEF) Liberia, the American Bar Association Rule of Law Initiative conducted an assessment of the Liberian juvenile justice system in June/July 2006. This is a summary of the findings of Juvenile Justice Assessment Team. In accordance of the Terms of Reference provided by UNICEF, the Report also makes recommendations on several fronts: legal representation for children; juvenile justice legislation; social service network for children adjudicated delinquent, neglected or in need of care and protection, and administration of the judiciary. The Report identifies short- and long-term goals leading to the development of a true juvenile justice system in Liberia.

The Austrian Rule of Law Initiative 2004-2008 – The Panel Series, the Advisory Group and the Final Report on the UN Security Council and the Rule of Law

The Austrian Rule of Law Initiative 2004-2008 – The Panel Series, the Advisory Group and the Final Report on the UN Security Council and the Rule of Law

The U.S.-China Rule of Law Initiative

This article examines the U.S.-China Rule of Initiative that was agreed to by President Bill Clinton and Chinese President Jiang Zemin at their 1997 and 1998 Summit Meetings. The Initiative sought to promote legal cooperation between the United States and China and to assist the legal reform process in China. The author developed and led this Initiative when he was on leave from Yale School as a U.S. government official during 1997-98. The article describes the development of the Initiative, its premises, and its effects. The article also uses the Initiative as a basis for discussing the possibilities and prospects for legal reform in China. More generally, the article discusses what role foreign entities can appropriately play in the legal reform process in countries such as China. In doing so, the article suggests approaches that foreign experts can take that might avoid some of the disillusionment and estrangement experienced by some scholars and experts involved in the Law and Development movement in the 1960s and 1970s.