ICON Volume 22, Issue 2: Table of Contents

I•CON

Volume 22 Issue 2

Table of Contents

Editorial: In this issue; Guest Editorial: Unsexing scholarship? Towards better citation and citizenship practices in global public law

Articles

Nimer Sultany, Law’s ideology: Neoliberalism and developmentalism in Egyptian jurisprudence

Vlad Perju, Elements of a doctrine of transnational constitutional norms

Shamshad Pasarlay, Dialogic incrementalism in deeply divided societies

Dimitrios Kivotidis, The curious genealogy of the “executive state”: A critical review of the latest

administrative reform in Greece

Maija Dahlberg and Anu Kantola, Tensions in Finland’s ex ante constitutional review: The interplay of politics, law, and media

Madhav Khosla and Milan Vaishnav, Democracy and defections

Focus: Failures in Constitution-Making

Sonsoles Arias, Reviewing the constitution-making process in Kenya: The failure of the 2005 constituent process

Andrea Scoseria Katz, No higher law: The Uruguayan plebiscite of 1980 as a failed constituent moment

Symposium: Three Decades of International Cooperation against Corruption

Leonardo Borlini and Anne Peters, Three decades of international cooperation against corruption¾looking ahead

Leonardo Borlini, Monitoring and compliance mechanisms as a diagnostic and prognostic tool of international anti-corruption cooperation: A data-driven study

Leonardo Borlini and Cecily Rose, The normative development of laws on asset preservation and confiscation: An examination of emerging best practices

Anne Peters, Human rights and corruption: Problems and potential of individualizing a systemic problem

Anne van Aaken, Effectuating international law against corruption: Behavioral insights

Yarik Kryvoi, Corruption and foreign investments: Empirical lessons from treaties and arbitration cases

Book Reviews

Lauri Mälksoo, Review of William Partlett & Herbert Küpper. The Post-Soviet as Post-Colonial: A New Paradigm for Understanding Constitutional Dynamics in the Former Soviet Empire

Ruth Houghton, Review of Ruth Rubio-Marín,Global Gender Constitutionalism and Women’s Citizenship: A Struggle for Transformative Inclusion

Ching-Fu Lin, Review of Hans-W. Micklitz, Oreste Pollicino, Amnon Reichman, Andrea Simoncini, Giovanni Sartor, and Giovanni De Gregorio, eds. Constitutional Challenges in the Algorithmic Society

Marcelo Lozada Gomez, Review of César Rodríguez-Garavito, ed. Litigating the Climate Emergency: How Human Rights, Courts, and Legal Mobilization Can Bolster Climate Action

Punsara Amarasinghe, Review of Tom Ginsburg & Benjamin Schonthal eds. Buddhism and Comparative Constitutional Law

Han Zhu, Review of Neil J. Diamant. Useful Bullshit: Constitutions in Chinese Politics and Society

Eddie Bruce-Jones, Review of Cengiz Barskanmaz. Recht und Rassismus: Das menschenrechtliche Verbot der Diskriminierung aufgrund der Rasse [Law and Racism: The Human Rights Prohibition of Racial Discrimination]

ABSTRACTS

Nimer Sultany, “Law’s ideology: Neoliberalism and developmentalism in Egyptian jurisprudence”

This article contrasts neoliberal and developmental Egyptian judicial responses to questions of social justice to examine the role of law in shaping the economy. It argues that the Supreme Constitutional Court’s jurisprudence, both before and after the Arab Spring, has advanced a neoliberal counterrevolution and legitimated an anti-egalitarian and unjust social order. In contrast, administrative courts’ rulings, particularly those that challenged the privatization of public assets after the Arab Spring, represent a developmental approach that exposes neoliberal fallacies and advances social justice and the common good. Notwithstanding neoliberal invocations of constitutional legitimacy and the rule of law, the existence of an alternative within the field of legal interpretation illustrates that constitutionalism is a site for ideological contestation between opposing visions of the social order.

Vlad Perju, “Elements of a doctrine of transnational constitutional norms”

This article uses the traditions of constitutionalism to develop the building blocks of a doctrine of transitional constitutional norms. After arguing that existing doctrines of implicit constitutional unamendability, such as the basic structure and constitutional replacement doctrines, are derivative, the article provides an account of the underlying primary doctrine: transnational constitutional norms. From the perspective of the form of government, constitutional norms are divided into peremptory and voluntary norms. Unearthing an old, but now largely forgotten, tradition of political thought, it defines peremptory norms as norms that derive from or constitute the form of government. These constitutional norms have a complex nature: domestic and transnational. The transnational dimension immunizes the people’s choice in favor of the democratic form of government by protecting peremptory norms from deselection, defined as the impermissible alteration or replacement of that form of government through piecemeal derogation from peremptory norms. Only the people as pouvoir constituant, but not their representatives, may chose the form of government and only through a full-scale process of constitution-making. The article uses judicial independence to illustrate the idea of peremptory constitutional norms. The doctrine of transnational constitutional norms helps to resist attempts at undermining judicial independence and to protect the integrity of the democratic form of government against impermissible deselection.

Shamshad Pasarlay, “Dialogic incrementalism in deeply divided societies”

A number of the world’s “deeply divided” societies are mired in violent conflicts which often grow out of historic tensions between the nation’s ethno-religious or linguistic groups. Elites within these societies tried to end these conflicts by drafting a constitution that would address the underlying grievances which fuel intergroup conflict. In many cases, however, rather than promoting peaceful political engagement, the process of constitution drafting seemed only to aggravate existing conflicts and create fresh sources of political unrest. Some deeply divided polities have avoided these worst-case outcomes by deploying an “incrementalist” approach to making constitutions. This approach asserts that deeply divided societies need not, and indeed should not, try to answer all constitutional questions. Rather, they can defer the most divisive questions for later resolution. By doing this, incrementalism focuses attention on issues over which some measure of agreement can be forged and enables constitutional ratification under fraught conditions. Critics have, however, identified two real problems with the incrementalist approach: first, once ethnopolitical elites agree to defer important questions, new developments may empower one group and allow it to stop good faith negotiations and impose its preferred constitutional settlements. Second, the constitution’s open questions may not be resolved in a timely manner, and the lingering ambiguities can produce fresh sources of conflict. This article asks whether one can design constitution-making processes in a way that harvests the benefits of incrementalism while avoiding the problems associated with it? The article suggests that the experiences of Afghanistan and Iraq indicate that there is a particular type of constitutional incrementalism which is more likely than others to accomplish this. It describes three Afghan constitutions, each of which embraced, implicitly, the logic of incrementalism. Of these, however, only one allowed constitutional questions to be addressed in a dialogic fashion. By imposing a process of what I call “dialogic incrementalism,” Afghanistan’s 1931 Constitution helped generate a stable constitutional order. Further, the article suggests that the drafting of Iraq’s 2005 Constitution shows that dialogic incrementalism can be a conscious design option.

Dimitrios Kivotidis, “The curious genealogy of the “executive state”: A critical review of the latest administrative reform in Greece”

This article critically discusses the latest reform of the Greek administration system, which took the form of an Act establishing an “executive state.” It intends to make two contributions to the existing literature. First, it offers a critique of the executive state. Existing critiques generally focus on the bureaucratic concentration of powers in the office of the Prime Minister or the abandonment of positive elements found in previous reform attempts. However, they largely accept the reform as a technical response to the crisis. In contrast, this article presents a comprehensive critique that fully addresses the historic origins and contemporary significance of the notion and institutional forms of the executive state, revealing it as a political, rather than technical, measure that reflects deeper views about the relationship between the state, the economy, and society. Additionally, the article assesses the two main effects of this administrative reform—the centralization and depoliticization of policymaking—as manifestations of an authoritarian shift. The second contribution concerns the literature on authoritarian liberalism, which examines the authoritarian tendencies inherent in liberal forms and ideals. While several authors have explored the authoritarian tendencies of institutional reform in the face of crisis, this article seeks to explore the authoritarian phenomenon as part of a process of market capture and to examine its effects specifically on administrative law and structures. Ultimately, this article argues that administrative reform in Greece follows a rather sinister genealogy, and must be understood as essential counterpart to the generalized and sustained attack on social and political rights following the dictates of the market.

 Maija Dahlberg and Anu Kantola, “Tensions in Finland’s ex ante constitutional review: The interplay of politics, law, and media”

Constitutional review has become increasingly subject to heated political debates and struggles. While the constitutionality of laws is often reviewed after the laws have entered into force (ex post), this article examines an ex ante constitutional review assessing the political tensions and struggles typical of it. We examine the Finnish experience, drawing on forty-nine semi-structured interviews among key actors involved in the work of the Constitutional Law Committee (CLC) of the Finnish Parliament, which controls the constitutionality of laws before they enter into force. We find that tensions between law and politics are an important element of the ex ante constitutional review and show how they emerge in the work of the CLC and how the key actors involved in the review seek to control and manage them. We also suggest that the political tensions surrounding the ex ante review have intensified in recent decades and find three main reasons for this development. First, as constitutional and human rights have found their way into an increasingly wide range of political matters, political tensions in constitutional assessment have been aggravated. Second, external legal experts have begun to play a more prominent and public role in the review process, adding to the public tensions relating to constitutional interpretation. Third, the media and journalists have become increasingly interested in constitutional questions, which further inflames tensions. As a result, we suggest that scholars should increasingly explore and make transparent these de facto practices in constitutional review.

Madhav Khosla and Milan Vaishnav, “Democracy and defections”

Within comparative constitutional law, there is an emerging consensus that political fragmentation has weakened political parties and hindered the functioning of legislative bodies. This article examines legal efforts to curb fragmentation in parliamentary systems by prohibiting floor crossing, or “defections”—a constitutional approach that concentrates power within party leaders. It conducts a detailed case study of India, exploring what is arguably the most extensive experiment in anti-defection law and its impact on accountability and representation. The article goes on to analyze similar laws in Israel and South Africa, highlighting the challenges of self-regulation. After evaluating the limitations of narrow anti-defection laws—such as the one in Pakistan—it proposes that the drawbacks of legislating party unity through formal defection regulation may prompt a reconsideration not only of legislatures, but also political parties and political polarization. While some scholars have viewed attempts to stem fragmentation as a solution for limiting polarization, this article suggests the opposite: sharpening polarization, when coupled with norm-based internal party controls, may well tame the excesses of fragmentation, especially in non-programmatic multiparty systems. Although there are difficult tradeoffs here, as polarization can have an independent (adverse) effects, the broader lessons of anti-defection laws deserve to be reckoned with. Ultimately, however, what the widespread adoption of anti-defection laws might primarily reveal is the nature of our faith—or lack thereof—in the promise of a certain form of parliamentary politics.

Sonsoles Arias, “Reviewing the constitution-making process in Kenya: The failure of the 2005 constituent process”

Kenya began its democratic era after its declaration of independence and the adoption of its first constitution in 1963. However, this supreme norm of the country would undergo countless reforms by the political elites from the very beginning, mostly to satisfy the partisan demands of the political leaders of the moment. These reforms succeeded in transforming the initially democratic model into an authoritarian, one-party system. After two decades of corruption and abuses of power, political changes in the country, and a wave of democratization after the fall of the Berlin Wall fueled the popular clamor for constitutional change. This article analyses the development of the constitution-making process, which began with the first constitutional amendments introduced to the constitution of the independence, as well as the main factors that led to the rejection of a new draft constitution in the ratification referendum held on November 21, 2005. A key element contributing to the failure of the whole process is the strong influence of political forces in the process, all using partisan methods to achieve perceived political advantages.

Andrea Scoseria Katz, “No higher law: The Uruguayan plebiscite of 1980 as a failed constituent moment”

On November 30, 1980, the people of Uruguay were called on to vote on a new constitution whose objective was to legalize the military dictatorship that had ruled Uruguay since 1973. The proposed constitution would reestablish elections, political parties, and an independent judiciary, but all subject to overrule by the National Security Council (COSENA), the junta of military leaders that acted as the nation’s de facto ruling body. Despite the highly repressive political environment in which the plebiscite was held, the citizenry rejected the draft in resounding fashion by a vote of 57% to 43%. Although the Plebiscite of 1980 was certainly a “failure” from the regime’s point of view, it is considered a founding moment in Uruguayan history during which the dictatorship was delegitimized and the process of re-democratization triggered, culminating in a democratic transition in 1985. This case illustrates that constitutional failures can be successes in the long term when they launch deeper processes of democratization or constitutionalism.

Leonardo Borlini and Anne Peters, “Three decades of international cooperation against corruption and its future”

Corruption, a ubiquitous phenomenon throughout history and societies, has been long criminalized in many countries. However, international cooperation against corruption only gained momentum in the 1990s. Since then, the international legal framework has expanded significantly through conventions like the Organisation on Economic Co-operation and Development (OECD) Anti-Bribery Convention and UN Convention against Corruption. Nearly all states have now ratified at least one anticorruption treaty. However, implementation and enforcement of these standards has been uneven across states. Domestic reforms have also lagged in some areas like prevention. Corruption remains widespread and its socioeconomic costs have not appreciably decreased. This Symposium aims at assesses the outcomes of three decades of international cooperation in combating corruption, while also exploring the future direction of international anticorruption rules and cooperation. Through a positive, critical, and normative legal analysis, complemented by empirical research and behavioral science, it focuses on the dynamic interactions between international anticorruption instruments and municipal law, highlighting understudied problems, both substantive and methodological. After discussing the origins and evolution of international anticorruption law, this introductory article presents the state of the art on the questions tackled by this Symposium and highlights its contribution to existing literature on the topic. In doing so, it offers different considerations aimed at bringing together various trends emerging from the articles contained in this Symposium and exploring avenues for further research and reflection.

Leonardo Borlini, “Monitoring and compliance mechanisms as a diagnostic and prognostic tool of international anti-corruption cooperation: A data-driven study”

This article focuses on text-as-data analysis to identify and compare the main patterns in the implementation of international anti-corruption rules, as well as compliance with them. It is based on the observation that a comprehensive study of the operation and outcomes of international anti-corruption treaties’ monitoring and compliance mechanisms (MMs) has not yet been attempted. The primary objectives are twofold: first, to obtain structured information in the form of data on compliance with the main anti-corruption treaties by processing the text of the reports these MMs have published since their creation; and, second, to examine the impact of these treaties on state behaviour by elaborating on this newly structured information (i.e., text-as-data). This article offers the first comprehensive review of country performance, combined with a structured legal analysis of outcomes from the perspective of the interaction between international and domestic law. The findings reveal that results in implementation and compliance have been decidedly mixed. Several countries have introduced reforms to implement anti-corruption treaties, facilitate law enforcement, and ease international cooperation to investigate and prosecute corruption offences. However, numerous problems identified with prevention, particularly in European and American countries, suggest that states too often over-rely on the repressive aspects of fighting corruption and undervalue preventive mechanisms, which frequently do not exist or are inadequate. Moreover, the article identifies enduring challenges and signs of regression across different areas of prevention, criminal repression, and international cooperation, which have far-reaching implications for the effectiveness of anti-corruption policies in many jurisdictions. Finally, the data obtained from the Organisation for Economic Co-operation and Development demonstrates considerable disparities in enforcement among the reviewed countries; a few jurisdictions have yet to see a single foreign bribery case prosecuted. Additionallly, they offer new evidence that reasons for poor compliance are highly contextual with different implications for domestic reforms.

Leonardo Borlini and Cecily Rose, “The normative development of laws on asset preservation and confiscation: An examination of emerging best practices”

The practice of international asset recovery appears to be in the process of moving beyond the provisions contained in the United Nations Convention against Corruption (UNCAC). These provisions were negotiated twenty years ago, and are now insufficient given the serious, contemporary challenges involved in tracing, preserving, confiscating, and returning assets. This article focuses on the limitations of UNCAC’s provisions concerning the preservation and confiscation of foreign assets. These limitations, and the need for progressive development, appear to have been recognized by the UNCAC Review Mechanism, which monitors the implementation of UNCAC by states parties. The Review Mechanism has begun encouraging states parties to adopt “good practices” that go beyond UNCAC’s minimum requirements. In doing so, however, the Review Mechanism has not offered guidance on how exactly states parties ought to go about implementing the best practices that they have identified. The asset recovery laws of Canada, Switzerland, and the United Kingdom demonstrate the need for further consideration of how domestic asset recovery laws ought to be developed. These laws highlight some of the difficult issues raised by more flexible, informal, and rapid forms of international cooperation in the asset recovery context. In particular, they underscore the challenges involved in balancing the general, public interest in combating corruption and recovering stolen assets with respect for and protection of human rights.

Anne Peters, “Human rights and corruption: Problems and potential of individualizing a systemic problem”

This article examines the advantages and challenges of a deliberate legal-political strategy that addresses corruption at an individual, rather than systemic, level. Empirical research has highlighted the correlations between the extent and nature of corruption and the level of human rights enjoyment. In response to these observations, anti-corruption and human rights policy agendas have been converging at the international and regional levels. However, framing corruption as a human rights violation that incurs international state responsibility poses conceptual difficulties. Additionally, the risks and benefits of this convergence need to be assessed. This article concludes that the human rights approach provides significant added value, outweighing its limitations. Yet, it remains an open question whether human rights serve as the appropriate normative framework for denouncing and combating corruption. This article suggests that the human rights perspective, by opening up new avenues for monitoring and litigation, effectively supplements the criminal law approach. It argues for a more balanced integration of corruption concerns within human rights frameworks, with equal emphasis on human rights considerations in all anti-corruption monitoring schemes. Such integration would likely foster a positive feedback loop, where anti-corruption efforts enhance human rights conditions, while certain human rights facilitate the fight against corruption.

Anne van Aaken, “Effectuating international law against corruption: Behavioral insights”

International law against corruption is mainly based on individualized criminalization and deterrence, including legal persons. Implicitly, since corruption is a white-collar crime, the conventions assume self-interested rational actors. That was the state-of-the-art thinking when the international conventions against corruption were developed around the turn of the millennium. This is the correct starting point but has failed to deliver the expected results. The United Nations (UN) have turned to behavioral science but the UN Office for Drugs and Crime (UNODC) is lagging behind and behavioral approaches have played a minor role. I submit that they can enrich the set of instruments by using (social)psychological insights. This article discusses additional tools based on behavioral insights and new social science methods used to gain a more holistic understanding of corruption. It makes concrete substantive and institutional suggestions for fighting corruption which could be taken up by UNODC and in international (soft) law. It also discusses the limitations.

Yarik Kryvoi, “Corruption and foreign investments: Empirical evidence from treaties and arbitration cases”

As legally binding instruments for the protection of cross-border investments, international investment agreements (IIAs) increasingly include anti-corruption provisions. This article empirically analyzes international investment agreements and the practice of investor–state tribunals related to corruption in foreign investments. It introduces a typology of treaty provisions and discusses their limited practical effectiveness and perverse incentives they create. The article also addresses the broader question of how to deal with corruption-related obligations of investors and states in the context of public international law. It presents and analyzes new empirical data showing that parties to investor–state disputes increasingly allege corruption, and states are responsible for most of such allegations. However, in most cases, tribunals either ignore such allegations or decide that they have not been proven. In the small number of cases where tribunals found allegations proven, they declined jurisdiction or declared the investor’s claim inadmissible. The article makes proposals on how international investment law can become more effective in tackling the supply and demand side of corruption and discusses the relevant obligations of investment tribunals.