Decrypting the Public Power Paradigm in Denationalising and Privatising Legal Orders
Researchers of the Department of Public International Law, together with researchers from the Department of European Law and the Institute of Social Studies (ISS), participate in the research project entitled:Decrypting the Public Power Paradigm in Denationalising and Privatising Legal Orders. The research project is part of the Erasmus School of Law overarching research program: Rethinking the Rule of Law in an Era of Globalisation, Privatisation, and Multiculturalisation.
The project analyses the manner in which law constructs and ought to construct the exercise of public power. For purposes of this research project, we conceptualise law, or at least significant parts of law, as a means by which society constructs and reconstructs itself interactively and, as it were, constructs ‘public space’. The most salient attribute of such a body of law is that it addresses the distribution of power in society, and in particular the abuse of power, as opposed to addressing delicts, torts, and trespasses only. Hence, public power is understood as power that ought to be exercised on behalf of and in the interest of society. These ideas provide the theoretical underpinnings of the project.
Research activities 2012
The Evolution of a Research Project:
A Case Study of Scientific Collaboration in the Internet and Social Networking Age
If this title is too boring for your liking, how about: ‘How does a research project come into being? It takes a village.’
In 1996, Hillary Clinton wrote a book with the title, ‘It Takes a Village: And Other Lessons Children Teach Us, (on ‘the impact individuals and groups outside the family have, for better or worse, on a child's well-being, and advocates a society which meets all of a child's needs’ – see http://en.wikipedia.org/wiki/It_Takes_a_Village). While picking up my children from day care the other day (excellent care, might I add), I was reflecting on how right she was; it also struck me, then, that my new research project was being born and raised in very much the same way.
I have recently committed the project to paper, and I am in the process of obtaining funding (but that’s a story for another day). The project, titled ‘International Accountability Mechanisms at Multilateral Development Banks: Assessing their Contribution Towards the Realization and Development of the International Rule of Law’, will keep me busy for the next three to four years and is – to some extent – a continuation of my Ph.D. research on the World Bank Inspection Panel and a culmination of all the research I have done since.
Writing the project proposal, however, forcibly reminded me of how many people have been involved in it, in various ways and through various media. The evolution of this particular research project is, indeed, an excellent case study of what scientific collaboration can look like today especially because, have I mentioned, I am not based in Rotterdam but in Farmington, New Mexico (that is in the United States, please note, not in Mexico; and I’m not really kidding).
To start with the Lynchpin of this department, Prof. dr. Ellen Hey commented on various drafts through old-fashioned ‘track-changes’ in MS Word and had several inspiring discussions with me via Skype (we have become experts at ignoring the occasional echo on the line, and at mentally completing sentences or syllables that are cut off in the process). Colleague Dr. Jeroen Temperman forwarded me an example of his recent excellent research proposal via email, and, after Facebook informed me that Dr. Elaine Mak was in Florence (hence, the out-of-office reply) I received invaluable input from her as well. Prof. dr. Sanne Taekema also commented on one of the final versions via email, and so did Prof. dr. Daniel Bradlow, who is a professor both at Pretoria University in South Africa and at American University in Washington D.C. (and, hence, I always have to check in which time zone he finds himself before I can arrange a Skype meeting).
Over the past two years, colleagues Paulo da Rosa and Jamaal Mohuddy worked tirelessly with me on the development of a database containing all cases from the International Accountability Mechanisms at Multilateral Development Banks. With the help of Skype and Dropbox, we managed an increasingly complex project despite being separate by, well, quite a lot of ocean and almost the entire North American continent. In April 2012, Emelie Folkesson joined the project, conducting invaluable analysis on this dataset. Emelie is an external Ph.D. student of Ellen Hey, and is currently based in Chicago – ‘merely’ one time zone removed from me. We communicate regularly via Skype, Facebook, email and Dropbox; and in May 2012 we met each other half-way at Denver Airport for the ultimate old-fashioned face-to-face meeting.
So, to repeat the initial question: How does a research project come into being? It takes a village. A digital, global village.
Andria Naudé Fourie
Research Activities 2011
Conference Oxford University & Field Research at the UN
Conference in Oxford
From 23-26 September, 2011, I had the opportunity to attend and participate in a conference on the foreign policy of the United States at the University of Oxford, UK.
Participants and paper presenters were mainly academics from the fields of International Relations and Political Science. Although I have no formal training in either of these fields, my doctoral research borrows theoretical insights from International Relations and so I was able to converse with the participants without difficulty. My research attempts to (de)construct the international (legal) discourse on the issue of international terrorism, focusing on the UN Security Council.
At one of the panels I presented a paper titled ‘Good News, Bad News or No news? Constructivism Meets Power and Terrorism: Narratives from Nicaragua and Afghanistan’. The paper discusses a resurging theoretical school in International Relations – Constructivism (simply put, that social reality is a construct of collectively upheld ideas) – and argues that the explanatory capacity of Constructivism sustains gaps when tested in the issue area of international terrorism. While accepting the proposition that ‘ideas matter!’ (International law being one such, albeit normative, socially constructed ideas), I pointed out, with cases from the work of the UN Security Council, that power ultimately arbiters in determining which ideas exert strong influence and which ideas would be ignored.
The conference was interesting and I received constructive and critical feedbacks. Above all, as it was my first presentation outside the Erasmus University, I have gained enormous practical experience.
Field Research in New York
From 1 October to 9 November I was in New York, the USA, on a field research at the United Nations. I conducted numerous in-depth interviews with diplomats and legal officers from the different government Permanent Missions to the UN. The interviews were for the purposes of my doctoral research.
I also had talks with UN officials working in counter-terrorism areas, and had the opportunity to attend a few meetings at the Counter Terrorism Executive Directorate, and the Security Council itself. It was a perfect opportunity for me to taste my preliminary research hypothesis, conduct a ‘reality check’ on the UN system, and grasp the formal and informal processes and ways of doing things at the UN circles.
Alongside my research at the UN, I undertook a one-month Visiting Research Fellowship at the Hofstra University Law School, NY. I was given a working space and access to academic resources. There, I also met some interesting researchers and senior academics. The refreshingly beautiful campus was also a plus.
Nathanael T. Ali
Teaching & Research Activities
Summer Schools on Human Rights
This summer, I contributed to two thematic summer schools on the issue of human rights.
First, in June I gave a summer school class on the issue of hate speech and defamation of religion at the annual “Minority Rights & Indigenous Peoples Summer School”, 13–17 June 2011, organized by the Irish Centre for Human Rights, National University of Ireland, Galway. As newly appointed Erasmus Fellow (2011-2015), my current research project aims at conceptualizing the prohibition of advocacy of religious hatred prohibition as a notion of international law. To my mind, the phenomenon of advocacy of religious hatred poses pertinent and complicated questions to international human rights law: on the one hand, this body of law considers freedom of expression as one of the cornerstones of a healthy democracy; on the other hand, in a liberal democracy people ought to be able to live free from religious discrimination, hostility or violence.
What I hope to do is, by identifying what the constituent parts of the prohibition of advocacy of religious hatred mean, by unravelling which are the precise state obligations emanating from this norm, and by comparing and contrasting the different modalities that are employed at the national level in light of this international legal norm, to conceptualize the limits (if any) to free speech in the liberal and religiously pluralist democracy.
In July, I gave a series of lectures within the framework of the Summer Training Programme on “Religion and the Rule of Law”, organized by the Centre for Constitutional and Administrative Law/Pu Shi Institute for Social Science, Beijing University, 18–29 July 2011, Beijing, China. This programme offers an intensive training in international law, comparative law and the rule of law, with a special focus on religious liberties. In my presentations (some joint with other trainers), I focussed on the following topics:
- Comparative Constitutional Models of Religion–State Relationships
- Historical Freedom of Religion Perspectives (Europe)
- The Right to Entity Status
- Religious Autonomy and the Right of Self-Direction
- Religious Expression in Schools
- The Impact of Governmental Favouritism of Selected Religions
- Religious Speech that Offends – Speech that Offends Religion
Academic conferences on Religion & Human Rights
In addition to these teaching activities, this summer I gave a number of papers at academic conferences. My human rights research focuses specifically on issues of religion–state relationships, freedom of religion or belief, freedom of expression, access to education, and non-discrimination. In these academic papers, I delved into a number of recent cases or other relevant developments, such as: a recent case before the European Court of Human Rights on the question whether or not crucifixes should be permitted in public school classrooms; a new General Comment on freedom of expression and advocacy of religious hatred that is currently being drafted by the UN Human Rights Committee; recent cases before international monitoring bodies dealing with the question of how much autonomy must be granted to religious organizations (and does such autonomy include a license to discriminate on the basis of gender or sexual orientation?). Finally, at the Second ICLARS Conference (International Consortium for Law and Religion Studies) in Santiago de Chile, I took part in a roundtable composed of the editors-in-chief of religion & law journals, where I represented the International Journal Religion & Human Rights.
All papers are on file with the author:
- Realizing and Protecting Freedom of Religion or Belief: A Comparative Inventory of Key Legal and De Facto Obstacles, International Conference on “Freedom of Religion and Interfaith Dialogue: A Global Dimension and Local Expressions”, Ukrainian National Academy of Sciences, 20–21 May 2011, Kiev, Ukraine.
- The Lautsi Case: A Human Rights Analysis, International Workshop on “Perspectives on the European Court’s Italian Crucifix Decision”, Central European University, 8 June 2011, Budapest, Hungary.
- The Role of Hate Speech Prohibitions in Protecting Religious Communities, International Conference on “Law and Religion: Legal Regulation of Religious Groups, Organisations and Communities”, Melbourne Law School, University of Melbourne, 15–16 July 2011.
- Advocacy of Religious Hatred: International and Comparative Perspectives, International Conference on “Law and Regulation of Religious Affairs”, Centre for Constitutional and Administrative Law/Pu Shi Institute for Social Science, Beijing University, 23 July 2011, Beijing, China.
- Religious Organizations as Social Service Providers: How Human Rights Law Mediates in Finding a Compromise between Full Autonomy and Universal Accessibility, International Conference on “religion as Social Institution”, ReligioPolis/Russian Academy of Science, 5–6 September 2011, Moscow, Russia.
- Religion & Human Rights, Second ICLARS Conference on “Religion and Constitution”, International Consortium for Law and Religion Studies/Pontifical Catholic University of Chile, 8–10 September 2011, Santiago de Chile, Chile.
Conference on Transitional Justice and Democracy Transition
Summer School Sarajevo
From July 28 until July 30, I attended a conference on Transitional Justice and Democracy Transition in Sarajevo, Bosnia and Herzegovina. The conference was organized for alumni students of the International Summer School Sarajevo. The participants, with various fields of specialization (e.g. International law, International relations, Political Science, and Economics), work as academics, PhD students and practitioners in the field of transitional justice.
At the conference, I presented my research paper on the topic of inclusionary processes in the governance of post-conflict situations. It was a perfect opportunity for me to present my preliminary findings and to receive useful feedback and comments on the research that I have conducted so far. My paper will be published this fall and will be made available on the SSRN website.
The paper assesses the claim for inclusionary processes in the governance of post-conflict situations. In order to identify provisions on inclusionary processes, I conducted a short survey of mandates of the United Nations missions in post-conflict situations, such as those in Kosovo and East-Timor. The survey revealed that even though inclusionary governance standards can be identified in the mandates, several powers have stayed within the exclusive ambit of the United Nations administering the territory. The research further established that this manner of exercising public power has led various international forums to advocate for inclusionary processes in decision-making procedures of United Nations missions in post-conflict situations.
Other international bodies also adopt decisions with a direct impact on individuals without adequately including these individuals in the decision-making procedures. Similar to the governance of post-conflict situations, a call for inclusionary processes can also be made for these international bodies, e.g. in relation to decisions taken by the UNHCR on the recognition of refugee status, the UN Security Council sanctions against individuals and the World Bank decisions on financing projects.
This paper addresses the premises of my envisaged doctoral research on ‘Designing inclusionary governance for post-conflict situations’. The aim of this doctoral project is to develop a Model for designing inclusionary governance by identifying generally recognized international standards for inclusionary governance. The international standards will be sought by comparing standards for inclusionary governance for international bodies (e.g. World Bank, Security Council), national bodies and for administering post-conflict situations.