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Papers by VIJAYASHRI SRIPATI
As an 18th century ‘standard of civilization,’ the Western liberal constitution has since been in... more As an 18th century ‘standard of civilization,’ the Western liberal constitution has since been integral to public international law and colonial trusteeship. This book is the first comprehensive treatment of the ostensible purposes why international organizations have internationalized this Constitution: from the League of Nations in Danzig, to the UN starting from Libya in 1949, and from 1989-2018, in more than forty poor states including most recently in Colombia and The Gambia. This pioneering study sets the Constitution’s internationalization via United Nations Constitutional Assistance (UNCA) at centre-stage. The Constitution’s salience makes its post-1989 rise via UNCA the most significant post-Cold War development, one which has spawned and shaped all other legal and political developments. For example, the internationalization of this Constitution (subsumed under the ‘rule of law’ label) drives the famed post-1989 rule of law movement, shaping all sectors from electoral, judicial, security, and parliamentary to international criminal and transitional justice. This Constitution’s internationalization is traced, from France’s drafting of Turkey’s 1856 monetary laws, British lawyer, Travis Twiss’ drafting of Congo’s 1885 constitution to the constitutional assistance offered by the League of Nations during the inter-war period and from 1949, by its successor, the United Nations and through a combined historical international constitutional framework, UNCA’s legitimacy is appraised. Through this new constitutional history of trusteeship, Sripati demonstrates that creating an equitable order requires considering seriously why sovereign states’ constitution-making is being internationalized. The book concludes by arguing that UNCA continues its trusteeship role. UNCA makes a new fiscally oriented addition to the ‘standards of civilization’: ‘transparent, inclusive and participatory’ constitution-making.
Human Rights Quarterly, 2017
In ancient India, there lived a renowned acharya (teacher) named Dronacharya, who taught archery ... more In ancient India, there lived a renowned acharya (teacher) named Dronacharya, who taught archery only to the royals. In the forest, overlooking the opulent marble palace, lived Ekalavya—a shudra (a lower-caste Hindu). Ekalavya longed to learn archery. But as an “untouchable,” he was shunned and forced into a life of illiteracy. Undeterred, he sculpted Drona’s clay bust and mounted it in front of his thatched hut. He worshipped it daily, before practicing archery. (Note: Hindus practice idol worship, and equate teachers to God—Guru-Dev.) Years sped by. One day, the royals, King Dhritarashtra and Drona, happened to witness Ekalavya’s martial prowess and
International and Comparative Law Quarterly, 2010
This timely collective work addresses the important question of what role international law plays... more This timely collective work addresses the important question of what role international law plays in post-conflict reconstruction. It grew out of a 2007 workshop titled: ‘Empire or Empowerment? The Role of International Law in Building Democracy and Justice after Conflict’ that drew together a group of scholars and practitioners (p 1). The overall message of the book is that international law has both potential and limits in State-building. Drawing a colonial analogy to State-building, the first three essays by Outi Korhonen, Nehal Bhuta, and Peter Danchin offer a provocative beginning. While Korhonen and Bhuta interrogate the assumption that the West can use a ready-made tool kit to sculpt foreign societies, Korhonen—who finds State-building a ‘classic assertion of hegemony and empire’ (p 36)—is more hopeful of its emancipatory potential via its pursuit under ‘culturally specific conditions’ (pp 36–37). Focusing on Iraq, Danchin argues that international law has both aided in the imposition of a supposedly universal body of international human rights norms on a resistant political order, and also, conversely, created a formal space allowing discussion and contestation of that project (pp 64–65, 88–89). Focusing on the international community’s uptake of, and implementation of democracy, Hilary Charlesworth and Brett Bowden rightly spotlight this enterprise’s limits, including its checklist approach to self-government that blocks organic development (Chapter 4, p 110). Overall, their analysis would have benefited from including in its coverage UN constitutional assistance, a distinct democracy-defining/promoting activity that entails standard-setting-andimplementation as to how a constitution should be written and what it should broadly contain. The implementation of democracy in Afghanistan is William Maley’s theme (Chapter 5) wherein he underscores the centrality of legitimacy to democracy and the need for a ‘wider web of legitimizing norms’ other than elections to sustain democracy (p 132). Arguing that international law can only reinforce and not also generate such legitimizing norms, he calls for understanding democracy-promotion as primarily a long term and indigenous process (pp 132–133). How has the UN fared in its attempts to construct a [post-conflict] rule of law? Jeremy Farrall (Chapter 6) and Laura Grenfell (Chapter 7) address this question by focusing on Haiti and Liberia and East-Timor respectively. Farrall calls for greater emphasis on mechanisms that are more suitable to local conditions (p 156). Faulting the UN for ignoring the potential of customary law and prioritizing the use of international law in building East-Timor’s legal system (pp 158, 176), Grenfell argues for a more strategic use of international law, coupling it with (local) customary law, an enterprise that might result in a greater public reliance on the legal system (p. 176). Focusing on treaty-ratification—a typically-envisaged post-conflict reconstruction ‘outcome,’—Helen Durham argues that the ratification of international humanitarian law—whose subject matter resonates with post-conflict communities’ experiences (p 190)—allows postconflict States to reshape their policies and structures in tune with international principles and link the ‘local and the global’ (p 179). But she cautions that since making local–global connections are not so simple, internationals should reconsider the opportunities ratification offers (p 196–197)
INTERNATIONAL COMMUNITY LAW REVIEW, 2008
Th is essay analyzes how Th ird World Approaches to International Law (TWAIL) insights have illum... more Th is essay analyzes how Th ird World Approaches to International Law (TWAIL) insights have illuminated some but not all themes relevant to understanding post-Cold War internationalised constitutionmaking processes such as those of Afghanistan and Iraq and the United Nation's (UN) constitutional support therein. It argues that the UN's constitutional support has evolved into an established practice and that the need to interrogate the very idea of the internationalisation of constitution-making,-essentially a domestic process-places the legitimacy of, and the explanations off ered for such support into question. It concludes that given its historic opposition to and commitment to end the exploitative relations between the Western powers and the Th ird World and all contemporary colonial forms in the Th ird World, TWAIL is the best optic through which the UN's constitutional support in general and its role in the constitution-making process of Afghanistan, in particular, may be examined. For only then can the broader historical and ideological aspects and colonial continuities fundamentally signifi cant to understanding internationalised constitution-making processes and the UN's role therein be uncovered. Keywords UN constitution support, UN peace-building, UN nation-building, UN confl ict resolution, postconfl ict constitution-making processes, Th ird World Approaches to International Law; UN democratization; UN and Afghanistan's constitution-making process *) In my doctoral dissertation, I am examining the United Nation's role in Afghanistan's constitutionmaking process from the Th ird World Approaches to International Law (TWAIL) perspective. Th is brief article surveys the contribution of TWAIL scholars to this topic and is based on my presentation at the TWAIL workshop held in May 2008 at the University of British Columbia Law School. I thank the editors of this special issue for their comments on an earlier draft of this essay.
Tul. J. Int'l & Comp. L., 2007
Constitutionalism in India and South Africa: A Comparative Study from a Human Rights Perspective ... more Constitutionalism in India and South Africa: A Comparative Study from a Human Rights Perspective Vijayashri Sripati* This Article examines and compares, from a human rights perspective, both the constitution-making processes and the bills of rights of the Indian and the South ...
International Journal of …, 2004
This case is obviously going to turn, to a great degree, on a finding of credibility on the evide... more This case is obviously going to turn, to a great degree, on a finding of credibility on the evidence of the complainant. How can she, or counsel for the defence and crown, and perhaps most importantly the accused, be assured that such a finding is being made solely on the material before the court, when all know that the trial judge, and any one else, is privy to a great deal of personal information about the complainant? 43
Constitution-Making under UN Auspices
United Nations Constitutional Assistance (UNCA) was conceived as colonial/international trusteesh... more United Nations Constitutional Assistance (UNCA) was conceived as colonial/international trusteeship in 1949. This chapter considers how the United Nations (UN) revived UNCA in sovereign states but escaped the colonial tag. Based on the UN’s official explanations, it is argued that the UN has deployed ideas rooted in international law to legitimize tutoring local actors in order that they adopt the Western liberal constitution. The UN’s four arguments therefore concerns this Constitution. The first is this constitution’s universality; the second is the neutrality of the actor producing or internationalizing this constitution which makes such internationalization non-exploitative; the third is the lawful authorization of the constitution’s internationalization which provides a legitimate basis for producing it; and finally, the temporary nature of the UN’s constitutional assistance which makes the internationalization of constitution-making temporary and so, legitimate.
Yearbook of International Environmental Law, 2000
... Sergei V. ; Hirsch Moshe ; Buchvall Eitan ; Rosencranz Armin ; Sripati Vijaya ; Razzaque Jona... more ... Sergei V. ; Hirsch Moshe ; Buchvall Eitan ; Rosencranz Armin ; Sripati Vijaya ; Razzaque Jona ; Batongbacal Jay L. ; Agsaoay Eunice J. ; Kanehara Atsuko ; Xi Wang ; Bachner Bryan ; Lee Jae-Gon ; Glazewski Jan I. ; Figueira Michaela ; Mumma Albert ; Rose Gregory ; Hewison ...
American University International Law Review, 1998
noting further that "[w]hat ensued was a panicky exodus of Muslims fleeing to Pakistan and Hindus... more noting further that "[w]hat ensued was a panicky exodus of Muslims fleeing to Pakistan and Hindus fleeing to India and a communal carnage in which about a million lives were lost."). 15. See TRIMBAK KRISHNA TOPE, THE CONSTITUTION OF INDIA 37 (1971) (discussing the similarities and differences in the United States and Indian constitutions).
Yearbook of International Environmental Law, 2003
... Said ; Jóhannsdóttir Aðalheiður ; Szuniewicz Milena ; Loibl Gerhard ; Ruiz José Juste ; Baden... more ... Said ; Jóhannsdóttir Aðalheiður ; Szuniewicz Milena ; Loibl Gerhard ; Ruiz José Juste ; Badenes Casino Margarita ; Xaver Perrez Franz ; Peeters Mairjian ; Hertoghs Marleen ; Garabello Roberta ; Vanheusden Bernard ; Deketelaere Kurt ; Serić Maja ; Wajda Stanislaw ; Turgut ...
Constitutionalism in India and South Africa: A Comparative Study from a Human Rights Perspective ... more Constitutionalism in India and South Africa: A Comparative Study from a Human Rights Perspective Vijayashri Sripati* This Article examines and compares, from a human rights perspective, both the constitution-making processes and the bills of rights of the Indian and the South ...
Denver Journal of International Law and Policy, Sep 22, 1997
Page 1. HUMAN RIGHTS IN INDIA FIFTY YEARS AFTER INDEPENDENCE VlJAYASHRI SRIPATI I. Introduction... more Page 1. HUMAN RIGHTS IN INDIA FIFTY YEARS AFTER INDEPENDENCE VlJAYASHRI SRIPATI I. Introduction August 15, 1997 marked the fiftieth anniversary of India's inde-pendence.1 A momentous day for all citizens ...
Routledge Handbook of International Statebuilding, 2012
Rethinking Human Security and Ethics in the Spirit of Dag Hammarskjöld, 2014
SSRN Electronic Journal, 2000
Historical and Post-Colonial Perspective where I examine the purposes served by UN constitutional... more Historical and Post-Colonial Perspective where I examine the purposes served by UN constitutional assistance through the 'policy institution'/ 'established practice' concept, using the methodology of "purposive analysis" (based on the official purposes advanced for the projects). The concept and methodology are drawn from Ralph Wilde, International Territorial Administration-How Trusteeship and the Civilizing Mission Never Went Away (Oxford: Oxford University Press, 2008). 'Policy Institution' as used in Wilde's teleological study, combines an 'institution' as an 'established practice' focusing on 'policy', that is, the purposes for which the practice is associated. See ibid. at 36, fn. 99. See definition 6a of "institution" in the Oxford English Dictionary, online Oxford English Dictionary, <http://www.oed.com>: 6. a. An established law, custom, usage, practice, organization, or other element in the political or social life of a people… For a detailed explanation of this methodology, see Vijaya Sripati, "Introduction," in The Evolution of the UN's Constitutional Assistance: A Post-colonial and TWAIL Perspective [unpublished doctoral dissertation]. "Established practice" is just the 'institution' part of Wilde's definition-and by extension mine-of 'policy institution.' For UNCA to be a 'policy institution' it has to be shown that it [the practice of constitutional assistance] has been put to common policy ends. An in-depth analysis of this theme is pursued in Vijayashri Sripati, "UNCA-A Mechanism for Implementing International Law and Policy" in United Nations Constitutional Assistance: A Historical and Post-Colonial Perspective at chapter 5 (analyzing how UNCA can be understood and is indeed, rationalized and legitimized by the UN as a device for implementing international law). century-of UN constitutional assistance as a policy institution and analyze the salient features of that body's constitutional assistance policy. I will argue that, in providing constitutional assistance, the UN sets standards for the process of constitution making and, broadly, for its contents, thus influencing the constitutional outcome. In Part III, I will explain how the UN slips constitutional assistance into its "development assistance" under its "democratic governance" framework. In Part IV, I will focus on the UN Democracy Fund's (UNDEF) activities and recent UN-sponsored conferences on constitution-making to highlight the high-level policy attention that constitutional assistance as a democracy-promotion and conflict-resolution tool has received. I will conclude by highlighting recent developments that point to the UN's continued support for constitution-making as an integral part of its "work." Part 1 II. Constitution and Constitution-making: The term constitution "refers both to the institutions, practices, and principles that define and structure a system of government and to the written document that establishes or articulates such a system." 2 By constitution-making, I refer to the processes by which new constitutions are written (or rewritten) and to the general outlines of constitutions, as opposed to the making of particular laws. Now, a written constitution has become almost an expression of political modernization, for nations, both old and new. 3 And, as the
International Community Law Review, 2008
This essay analyzes how Third World Approaches to International Law (TWAIL) insights have illumin... more This essay analyzes how Third World Approaches to International Law (TWAIL) insights have illuminated some but not all themes relevant to understanding post-Cold War internationalised constitution-making processes such as those of Afghanistan and Iraq and the United Nation's (UN) constitutional support therein. It argues that the UN's constitutional support has evolved into an established practice and that the need to interrogate the very idea of the internationalisation of constitution-making, – essentially a domestic process – places the legitimacy of, and the explanations offered for such support into question. It concludes that given its historic opposition to and commitment to end the exploitative relations between the Western powers and the Third World and all contemporary colonial forms in the Third World, TWAIL is the best optic through which the UN's constitutional support in general and its role in the constitution-making process of Afghanistan, in particular, ...
Human Rights Quarterly, 2005
Constitutionalism is an elusive term. However, democratic governance and rights protection are br... more Constitutionalism is an elusive term. However, democratic governance and rights protection are broadly accepted to be its essential elements 1 and judiciaries have traditionally been regarded as its key promoters. The decade of the 1990s has however, witnessed the ...
Human Rights Quarterly, 2008
Human Rights Quarterly, 2009
As an 18th century ‘standard of civilization,’ the Western liberal constitution has since been in... more As an 18th century ‘standard of civilization,’ the Western liberal constitution has since been integral to public international law and colonial trusteeship. This book is the first comprehensive treatment of the ostensible purposes why international organizations have internationalized this Constitution: from the League of Nations in Danzig, to the UN starting from Libya in 1949, and from 1989-2018, in more than forty poor states including most recently in Colombia and The Gambia. This pioneering study sets the Constitution’s internationalization via United Nations Constitutional Assistance (UNCA) at centre-stage. The Constitution’s salience makes its post-1989 rise via UNCA the most significant post-Cold War development, one which has spawned and shaped all other legal and political developments. For example, the internationalization of this Constitution (subsumed under the ‘rule of law’ label) drives the famed post-1989 rule of law movement, shaping all sectors from electoral, judicial, security, and parliamentary to international criminal and transitional justice. This Constitution’s internationalization is traced, from France’s drafting of Turkey’s 1856 monetary laws, British lawyer, Travis Twiss’ drafting of Congo’s 1885 constitution to the constitutional assistance offered by the League of Nations during the inter-war period and from 1949, by its successor, the United Nations and through a combined historical international constitutional framework, UNCA’s legitimacy is appraised. Through this new constitutional history of trusteeship, Sripati demonstrates that creating an equitable order requires considering seriously why sovereign states’ constitution-making is being internationalized. The book concludes by arguing that UNCA continues its trusteeship role. UNCA makes a new fiscally oriented addition to the ‘standards of civilization’: ‘transparent, inclusive and participatory’ constitution-making.
Human Rights Quarterly, 2017
In ancient India, there lived a renowned acharya (teacher) named Dronacharya, who taught archery ... more In ancient India, there lived a renowned acharya (teacher) named Dronacharya, who taught archery only to the royals. In the forest, overlooking the opulent marble palace, lived Ekalavya—a shudra (a lower-caste Hindu). Ekalavya longed to learn archery. But as an “untouchable,” he was shunned and forced into a life of illiteracy. Undeterred, he sculpted Drona’s clay bust and mounted it in front of his thatched hut. He worshipped it daily, before practicing archery. (Note: Hindus practice idol worship, and equate teachers to God—Guru-Dev.) Years sped by. One day, the royals, King Dhritarashtra and Drona, happened to witness Ekalavya’s martial prowess and
International and Comparative Law Quarterly, 2010
This timely collective work addresses the important question of what role international law plays... more This timely collective work addresses the important question of what role international law plays in post-conflict reconstruction. It grew out of a 2007 workshop titled: ‘Empire or Empowerment? The Role of International Law in Building Democracy and Justice after Conflict’ that drew together a group of scholars and practitioners (p 1). The overall message of the book is that international law has both potential and limits in State-building. Drawing a colonial analogy to State-building, the first three essays by Outi Korhonen, Nehal Bhuta, and Peter Danchin offer a provocative beginning. While Korhonen and Bhuta interrogate the assumption that the West can use a ready-made tool kit to sculpt foreign societies, Korhonen—who finds State-building a ‘classic assertion of hegemony and empire’ (p 36)—is more hopeful of its emancipatory potential via its pursuit under ‘culturally specific conditions’ (pp 36–37). Focusing on Iraq, Danchin argues that international law has both aided in the imposition of a supposedly universal body of international human rights norms on a resistant political order, and also, conversely, created a formal space allowing discussion and contestation of that project (pp 64–65, 88–89). Focusing on the international community’s uptake of, and implementation of democracy, Hilary Charlesworth and Brett Bowden rightly spotlight this enterprise’s limits, including its checklist approach to self-government that blocks organic development (Chapter 4, p 110). Overall, their analysis would have benefited from including in its coverage UN constitutional assistance, a distinct democracy-defining/promoting activity that entails standard-setting-andimplementation as to how a constitution should be written and what it should broadly contain. The implementation of democracy in Afghanistan is William Maley’s theme (Chapter 5) wherein he underscores the centrality of legitimacy to democracy and the need for a ‘wider web of legitimizing norms’ other than elections to sustain democracy (p 132). Arguing that international law can only reinforce and not also generate such legitimizing norms, he calls for understanding democracy-promotion as primarily a long term and indigenous process (pp 132–133). How has the UN fared in its attempts to construct a [post-conflict] rule of law? Jeremy Farrall (Chapter 6) and Laura Grenfell (Chapter 7) address this question by focusing on Haiti and Liberia and East-Timor respectively. Farrall calls for greater emphasis on mechanisms that are more suitable to local conditions (p 156). Faulting the UN for ignoring the potential of customary law and prioritizing the use of international law in building East-Timor’s legal system (pp 158, 176), Grenfell argues for a more strategic use of international law, coupling it with (local) customary law, an enterprise that might result in a greater public reliance on the legal system (p. 176). Focusing on treaty-ratification—a typically-envisaged post-conflict reconstruction ‘outcome,’—Helen Durham argues that the ratification of international humanitarian law—whose subject matter resonates with post-conflict communities’ experiences (p 190)—allows postconflict States to reshape their policies and structures in tune with international principles and link the ‘local and the global’ (p 179). But she cautions that since making local–global connections are not so simple, internationals should reconsider the opportunities ratification offers (p 196–197)
INTERNATIONAL COMMUNITY LAW REVIEW, 2008
Th is essay analyzes how Th ird World Approaches to International Law (TWAIL) insights have illum... more Th is essay analyzes how Th ird World Approaches to International Law (TWAIL) insights have illuminated some but not all themes relevant to understanding post-Cold War internationalised constitutionmaking processes such as those of Afghanistan and Iraq and the United Nation's (UN) constitutional support therein. It argues that the UN's constitutional support has evolved into an established practice and that the need to interrogate the very idea of the internationalisation of constitution-making,-essentially a domestic process-places the legitimacy of, and the explanations off ered for such support into question. It concludes that given its historic opposition to and commitment to end the exploitative relations between the Western powers and the Th ird World and all contemporary colonial forms in the Th ird World, TWAIL is the best optic through which the UN's constitutional support in general and its role in the constitution-making process of Afghanistan, in particular, may be examined. For only then can the broader historical and ideological aspects and colonial continuities fundamentally signifi cant to understanding internationalised constitution-making processes and the UN's role therein be uncovered. Keywords UN constitution support, UN peace-building, UN nation-building, UN confl ict resolution, postconfl ict constitution-making processes, Th ird World Approaches to International Law; UN democratization; UN and Afghanistan's constitution-making process *) In my doctoral dissertation, I am examining the United Nation's role in Afghanistan's constitutionmaking process from the Th ird World Approaches to International Law (TWAIL) perspective. Th is brief article surveys the contribution of TWAIL scholars to this topic and is based on my presentation at the TWAIL workshop held in May 2008 at the University of British Columbia Law School. I thank the editors of this special issue for their comments on an earlier draft of this essay.
Tul. J. Int'l & Comp. L., 2007
Constitutionalism in India and South Africa: A Comparative Study from a Human Rights Perspective ... more Constitutionalism in India and South Africa: A Comparative Study from a Human Rights Perspective Vijayashri Sripati* This Article examines and compares, from a human rights perspective, both the constitution-making processes and the bills of rights of the Indian and the South ...
International Journal of …, 2004
This case is obviously going to turn, to a great degree, on a finding of credibility on the evide... more This case is obviously going to turn, to a great degree, on a finding of credibility on the evidence of the complainant. How can she, or counsel for the defence and crown, and perhaps most importantly the accused, be assured that such a finding is being made solely on the material before the court, when all know that the trial judge, and any one else, is privy to a great deal of personal information about the complainant? 43
Constitution-Making under UN Auspices
United Nations Constitutional Assistance (UNCA) was conceived as colonial/international trusteesh... more United Nations Constitutional Assistance (UNCA) was conceived as colonial/international trusteeship in 1949. This chapter considers how the United Nations (UN) revived UNCA in sovereign states but escaped the colonial tag. Based on the UN’s official explanations, it is argued that the UN has deployed ideas rooted in international law to legitimize tutoring local actors in order that they adopt the Western liberal constitution. The UN’s four arguments therefore concerns this Constitution. The first is this constitution’s universality; the second is the neutrality of the actor producing or internationalizing this constitution which makes such internationalization non-exploitative; the third is the lawful authorization of the constitution’s internationalization which provides a legitimate basis for producing it; and finally, the temporary nature of the UN’s constitutional assistance which makes the internationalization of constitution-making temporary and so, legitimate.
Yearbook of International Environmental Law, 2000
... Sergei V. ; Hirsch Moshe ; Buchvall Eitan ; Rosencranz Armin ; Sripati Vijaya ; Razzaque Jona... more ... Sergei V. ; Hirsch Moshe ; Buchvall Eitan ; Rosencranz Armin ; Sripati Vijaya ; Razzaque Jona ; Batongbacal Jay L. ; Agsaoay Eunice J. ; Kanehara Atsuko ; Xi Wang ; Bachner Bryan ; Lee Jae-Gon ; Glazewski Jan I. ; Figueira Michaela ; Mumma Albert ; Rose Gregory ; Hewison ...
American University International Law Review, 1998
noting further that "[w]hat ensued was a panicky exodus of Muslims fleeing to Pakistan and Hindus... more noting further that "[w]hat ensued was a panicky exodus of Muslims fleeing to Pakistan and Hindus fleeing to India and a communal carnage in which about a million lives were lost."). 15. See TRIMBAK KRISHNA TOPE, THE CONSTITUTION OF INDIA 37 (1971) (discussing the similarities and differences in the United States and Indian constitutions).
Yearbook of International Environmental Law, 2003
... Said ; Jóhannsdóttir Aðalheiður ; Szuniewicz Milena ; Loibl Gerhard ; Ruiz José Juste ; Baden... more ... Said ; Jóhannsdóttir Aðalheiður ; Szuniewicz Milena ; Loibl Gerhard ; Ruiz José Juste ; Badenes Casino Margarita ; Xaver Perrez Franz ; Peeters Mairjian ; Hertoghs Marleen ; Garabello Roberta ; Vanheusden Bernard ; Deketelaere Kurt ; Serić Maja ; Wajda Stanislaw ; Turgut ...
Constitutionalism in India and South Africa: A Comparative Study from a Human Rights Perspective ... more Constitutionalism in India and South Africa: A Comparative Study from a Human Rights Perspective Vijayashri Sripati* This Article examines and compares, from a human rights perspective, both the constitution-making processes and the bills of rights of the Indian and the South ...
Denver Journal of International Law and Policy, Sep 22, 1997
Page 1. HUMAN RIGHTS IN INDIA FIFTY YEARS AFTER INDEPENDENCE VlJAYASHRI SRIPATI I. Introduction... more Page 1. HUMAN RIGHTS IN INDIA FIFTY YEARS AFTER INDEPENDENCE VlJAYASHRI SRIPATI I. Introduction August 15, 1997 marked the fiftieth anniversary of India&amp;amp;amp;amp;amp;amp;amp;#x27;s inde-pendence.1 A momentous day for all citizens ...
Routledge Handbook of International Statebuilding, 2012
Rethinking Human Security and Ethics in the Spirit of Dag Hammarskjöld, 2014
SSRN Electronic Journal, 2000
Historical and Post-Colonial Perspective where I examine the purposes served by UN constitutional... more Historical and Post-Colonial Perspective where I examine the purposes served by UN constitutional assistance through the 'policy institution'/ 'established practice' concept, using the methodology of "purposive analysis" (based on the official purposes advanced for the projects). The concept and methodology are drawn from Ralph Wilde, International Territorial Administration-How Trusteeship and the Civilizing Mission Never Went Away (Oxford: Oxford University Press, 2008). 'Policy Institution' as used in Wilde's teleological study, combines an 'institution' as an 'established practice' focusing on 'policy', that is, the purposes for which the practice is associated. See ibid. at 36, fn. 99. See definition 6a of "institution" in the Oxford English Dictionary, online Oxford English Dictionary, <http://www.oed.com>: 6. a. An established law, custom, usage, practice, organization, or other element in the political or social life of a people… For a detailed explanation of this methodology, see Vijaya Sripati, "Introduction," in The Evolution of the UN's Constitutional Assistance: A Post-colonial and TWAIL Perspective [unpublished doctoral dissertation]. "Established practice" is just the 'institution' part of Wilde's definition-and by extension mine-of 'policy institution.' For UNCA to be a 'policy institution' it has to be shown that it [the practice of constitutional assistance] has been put to common policy ends. An in-depth analysis of this theme is pursued in Vijayashri Sripati, "UNCA-A Mechanism for Implementing International Law and Policy" in United Nations Constitutional Assistance: A Historical and Post-Colonial Perspective at chapter 5 (analyzing how UNCA can be understood and is indeed, rationalized and legitimized by the UN as a device for implementing international law). century-of UN constitutional assistance as a policy institution and analyze the salient features of that body's constitutional assistance policy. I will argue that, in providing constitutional assistance, the UN sets standards for the process of constitution making and, broadly, for its contents, thus influencing the constitutional outcome. In Part III, I will explain how the UN slips constitutional assistance into its "development assistance" under its "democratic governance" framework. In Part IV, I will focus on the UN Democracy Fund's (UNDEF) activities and recent UN-sponsored conferences on constitution-making to highlight the high-level policy attention that constitutional assistance as a democracy-promotion and conflict-resolution tool has received. I will conclude by highlighting recent developments that point to the UN's continued support for constitution-making as an integral part of its "work." Part 1 II. Constitution and Constitution-making: The term constitution "refers both to the institutions, practices, and principles that define and structure a system of government and to the written document that establishes or articulates such a system." 2 By constitution-making, I refer to the processes by which new constitutions are written (or rewritten) and to the general outlines of constitutions, as opposed to the making of particular laws. Now, a written constitution has become almost an expression of political modernization, for nations, both old and new. 3 And, as the
International Community Law Review, 2008
This essay analyzes how Third World Approaches to International Law (TWAIL) insights have illumin... more This essay analyzes how Third World Approaches to International Law (TWAIL) insights have illuminated some but not all themes relevant to understanding post-Cold War internationalised constitution-making processes such as those of Afghanistan and Iraq and the United Nation's (UN) constitutional support therein. It argues that the UN's constitutional support has evolved into an established practice and that the need to interrogate the very idea of the internationalisation of constitution-making, – essentially a domestic process – places the legitimacy of, and the explanations offered for such support into question. It concludes that given its historic opposition to and commitment to end the exploitative relations between the Western powers and the Third World and all contemporary colonial forms in the Third World, TWAIL is the best optic through which the UN's constitutional support in general and its role in the constitution-making process of Afghanistan, in particular, ...
Human Rights Quarterly, 2005
Constitutionalism is an elusive term. However, democratic governance and rights protection are br... more Constitutionalism is an elusive term. However, democratic governance and rights protection are broadly accepted to be its essential elements 1 and judiciaries have traditionally been regarded as its key promoters. The decade of the 1990s has however, witnessed the ...
Human Rights Quarterly, 2008
Human Rights Quarterly, 2009