Volume 13, Issue 3 -

Since the 1990s, western, developed countries have moved away from rule-making and standard-setting in multilateral intergovernmental organizations and have increasingly collaborated on those matters in clubs of developed countries, such as trans-governmental regulatory networks. Although clubs often generate rules or standards that affect developing countries, the latter have not had a voice in rule-making, resulting in a ‘participation gap’, for which clubs are being criticized. Against this background, I analyse a recent development that has largely gone unnoticed: Clubs have been integrating previously excluded developing countries. From small and exclusive clubs, they are growing into larger and more inclusive clubs. I call this trajectory of the past seventy years – the establishment of intergovernmental organizations, their increasing displacement in favour of clubs, and the recent reversion towards larger clubs – accordion governance . Like an accordion that expands or contracts as needed, so too have governance models and rule-making adjusted to changing conditions and preferences by becoming more or less inclusive. Focusing on club expansion, I address three questions: (1) How has participation – and the rules governing it – evolved over time? (2) Why are governments voluntarily sharing rule-making authority with new participants? (3) Can these reforms close the participation gap in international rule-making?

Split into two articles, the Empirical Paper Series on Secession and Constitutionalism explores the relationship between constitutionalism and secession. The first paper of this series examined the relationship between, on the one hand, the constitutional prohibition and legalisation of secession – ie indivisibility and secession clauses – and, on the other hand, the prevalence of secessionist movements. This second article addresses the very heart of the doctrinal debate between the Indivisibilist and Secessionist schools, namely the relationship between a constitution’s framework towards secession and the actual occurrence of secession. Between 1900 and 2018, 24 subnational units seceded from a total of 16 central states. Of these 24 cases of secession, 25 % occurred in central states where secession was prohibited, 13 % in states whose constitution was silent on the issue, and 63 % in states whose constitution contained a right to secession, which indicates a very strong statistical relationship between secession clauses and the actual occurrence of secession. Yet, a closer look into the history of these provisions suggests that the causal relationship between secession clauses and secession itself – if any – goes in a direction opposite to what one would assume. Indeed, not a single one of the 13 secession clauses identified in this paper series ever gave rise to a pro-independence movement. In the vast majority of cases, it is actually the pre-existence of secessionist groups that forced the constitutionalising of a right to secession, either downstream, to pacify a violent secessionist conflict, or upstream, to accommodate a region that set the constitutionalising of such a right as a precondition of its joining a new country that would otherwise not have existed in the first place. Liechtenstein is the only recorded example of a state that constitutionalised a right to secede without being faced with pre-existing secessionist tensions, and none has arisen since secession became legal in Liechtenstein.

The normally challenging task of teaching international law is amplified when teaching international law in jurisdictions that face ongoing human rights problems and other failures of compliance with international law. In those jurisdictions, the dialectics between the globalized world economy and technology on the one hand and the intensification of hostility to human rights and substantive democracies (ie to the values of public international law) on the other hand are much more pronounced. Students will often resist international law and regard it as the ‘enemy of the state’ or a source of illegitimate foreign influence. The challenge of international law teachers in those jurisdictions is thus not only to teach international law but also to draw the students into – rather than alienate them from – thinking about their resistance to international law and about the relations between law, power and legitimacy. How to meet this and related challenges is the focus of this paper, which is based on the authors’ practical experiences of teaching international law in several jurisdictions with an international law crisis including Hong Kong, Israel, and the People’s Republic of China.

In this paper, I attempt to examine the evolution of judicial review of legislation in Sri Lanka with a view to better understanding how it has impacted the democratic fabric and constitutional matrix of Sri Lanka. The impact that judicial review of legislation has had on rights jurisprudence, enhancement of democracy, prevention of persecution against selected groups are analysed in this paper in relation to the Ceylon Constitutional Order in Council of 1946 (‘Soulbury’ Constitution) and the two autochthonous constitutions of Sri Lanka of 1972 and 1978. The first part of the paper comprises of a descriptive analysis of judicial review of legislation under the three Constitutions. This is expected to perform a gap filling function in respect of the lacuna that exists in Sri Lankan legal literature in relation to the assessment of the trends pertaining to judicial review of legislation in Sri Lanka. In the second part of the paper, I have analysed decided cases of Sri Lanka to explore how the judiciary has responded to legislative and executive power, and has given up or maintained judicial independence. In this respect, I have also attempted to explore whether the judiciary has unduly engaged in restraint thereby impeding its own independence. The third part of the paper evaluates the differences in technique and stance the judiciary has adopted when reviewing draft enactments of the national legislature and when reviewing draft or enacted statutes of Provincial Councils. From a comparative constitutional perspective, this assessment is expected to provide the background that is essential in understanding the island nation’s current constitutional discourse, transitional justice process, and its approach to human rights.