Transitional Justice in Times of “Exponential Change”: Constructing Normative Frameworks Fit for Purpose—The Importance of General International Law
In the attempt to reformulate transitional justice to include broader rule of law approaches, there are substantial challenges in ensuring institutional, normative, and policy coherence. Though the rhetoric of the UN policy “pillars” of human rights, development, and peace and security is uncontroversial and commendable, achieving it through tangential legal regimes is problematic. With at least three forms of incoherence at work: within a regime, between legal regimes, and between regimes and the UN’s policy goals, ensuring effective responses requires resort to tools of general international law. The chapter comes to three conclusions: first, that as achieving transitional justice requires reliance upon divergent areas of international law, general issues of normative ordering and fragmentation must be confronted. Secondly, normative incoherence can be mitigated through a range of general techniques, including the development of unified substantive (“primary”) rules across regimes—using the principle of prevention here as the example—and recourse to treaty interpretation as a secondary tool to maximise rule-linkage. Thirdly, there are a number of meta-, or overriding, principles which might assist with developing an overarching coherence, including the concept of sustainable development and various principles of human rights. Thus, transitional justice as both a policy and legal objective should not eschew, and indeed benefits from, precepts and techniques of the general legal order.
KeywordsRule of law UN policy goals Normative fragmentation Prevention Interpretation Sustainable development
- Alexander Orakhelashvili, Peremptory Norms in International Law (Oxford: Oxford University Press, 2006).Google Scholar
- Naomi Roht-Arriaza and Javier Mariezcurrena (eds.), Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (Cambridge: Cambridge University Press, 2006).Google Scholar
- Margaret Young (ed.), Regime Interaction in International Law: Facing Fragmentation. (Cambridge: Cambridge University Press, 2006).Google Scholar
- James Crawford and Penelope Neville, “Relations between International Courts and Tribunals: The ‘Regime Problem’,” in Regime Interaction in International Law: Facing Fragmentation, ed. Margaret A. Young (Cambridge: Cambridge University Press, 2012).Google Scholar
- Jeffrey L. Dunoff, “A new approach to regime interaction” in Regime Interaction in International Law: Facing Fragmentation, ed. Margaret A. Young (Cambridge: Cambridge University Press, 2012).Google Scholar
- Nele Matz-Lück, “Norm interpretation across international regimes: competences and legitimacy,” in Regime Interaction in International Law: Facing Fragmentation, ed. Margaret A. Young (Cambridge: Cambridge University Press, 2012).Google Scholar
- Margaret A. Young, “Introduction,” in Regime Interaction in International Law: Facing Fragmentation, ed. Margaret A. Young (Cambridge: Cambridge University Press, 2012).Google Scholar
- Margaret A. Young, “Regime interaction in creating, implementing and enforcing international law,” in Regime Interaction in International Law: Facing Fragmentation, ed. Margaret A. Young, (Cambridge: Cambridge University Press, 2012).Google Scholar
Reports, Press releases et al.
- Louise Arbour, “Economic and Social Justice for Societies in Transition,” Second Annual Transitional Justice Lecture (25 October 2006), New York University School of Law, accessed October 21, 2013, http://www.unhchr.ch/huricane/huricane.nsf/0/40032f0dc00bf784c12572140031760a/$FILE/TransitionalJustice.pdf.
- CESCR General Comment No 3: “The nature of States parties obligations (Art. 2, par. 1)” (12 December 1990).Google Scholar
- CESCR General Comment No 15: “The right to water (arts. 11 and 12 of the International Covenant on Economic, Social and Cultural Rights)”, UN Doc E/C.12/2002/11 (20 January 2003).Google Scholar
- CESCR, General Comment 21: “Right of everyone to take part in cultural life (art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights)”, UN Doc E/C.12/GC/21 (21 December 2009).Google Scholar
- “Future We Want—Outcome Document”—UN Conference on Sustainable Development in Rio de Janeiro (20–22 June 2012), accessed October 23, 2013, http://sustainabledevelopment.un.org/futurewewant.html.
- ILC Study Group, “Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, Conclusions of the Work of the Study Group” (A/CN.4/L.702) (18 July 2006).Google Scholar
- Report of the High-Level Panel of Eminent Persons on the Post-2015 Development Agenda, “A New Global Partnership: Eradicate Poverty and Transform Economies through Sustainable Development”, (2013) Executive Summary, accessed October, 22, 2013, http://www.un.org/sg/management/pdf/HLP_P2015_Report.pdf.
- “Report of the Office of the High Commissioner for Human Rights [OHCHR] on the relationship between climate change and human rights”, UN Doc A/HRC/10/61 (15 January 2009).Google Scholar
- Report of the Secretary-General, “The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies”, UN Doc S/2004/616 (23 August 2004).Google Scholar
- Report of the Secretary-General, “The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies”, UN Doc S/2004/634 (12 October 2011).Google Scholar
- KLH Samuel, ND White, and AM Salinas de Frías, “UN Reform, the Rule of Law, and Counter-Terrorism: How Can Past Lessons Inform Future Responses?” (University of Nottingham, 2012), accessed December 20, 2013 http://www.clubmadrid.org/img/secciones/un_reform_report_march_2012-final.pdf.
- Secretary-General Press Release, “Secretary-General Presents Five-Year Action Agenda to General Assembly, Highlighting Killer Diseases, Sustainable Development, Preventive Approaches as Priorities”, SG/SM/14081 (25 January 2012).Google Scholar
- Summary Report: “Civil Society Consultation Conducted by the UN Non-Governmental Liaison Service (UN-NGLS) For the UN Secretary General’s High-level Panel on Global Sustainability” (March 2011), accessed October 22, 2013 http://www.un.org/wcm/webdav/site/climatechange/shared/gsp/docs/Summary_Report_-_UN-NGLS_Consultation_for_the_Global_Sustainability_Panel.pdf.
- “The Secretary General’s Five-Year Action Agenda”, (25 January 2012), accessed October 22, 2013 http://www.un.org/sg/priorities/sg_agenda_2012.pdf.
- “Plan of Implementation of the World Summit on Sustainable Development 2002”, accessed April 21, 2014 http://www.un.org/esa/sustdev/documents/WSSD_POI_PD/English/WSSD_PlanImpl.pdf.
- Case Concerning Gabčíkovo-Nagymaros Project (Hungary/Slovakia)  ICJ Reports 7.Google Scholar
- Case Concerning Pulp Mills  Judgment of 20 April 2010.Google Scholar
- Iron Rhine (Belgium/Netherlands) ) Award of 24 May 2005.Google Scholar
- Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council  ECR I-6351.Google Scholar
- R (Al-Jedda) v Secretary of State for Defence  UKHL 58.Google Scholar
- al-Jedda v United Kingdom (Application No 27021/08) ECtHR 7 July 2011.Google Scholar
- Sayadi and Vinck v Belgium UN Human Rights Committee (CCPR), Communication No 1472/2006, CCPR/C/94/D/1472/2006 (22 October 2008).Google Scholar
- Shrimp-Turtle dispute (United States—Import Prohibition of Certain Shrimp and Shrimp Products) 12 October 1998, 38 ILM (1999) 118.Google Scholar