South Sudan’s decade-long transition: A country in search of a permanent constitution

By Zach Nelson

Zach Nelson is a first-year graduate student studying International Development at Johns Hopkins School of Advanced International Studies (SAIS). He was previously based in Juba, South Sudan, where he led research assessments on humanitarian accountability, and in Yangon, Myanmar, where he worked on conflict risk-monitoring.

A reveler celebrates in Juba the eve of South Sudan’s independence on 9 July 2011. Ten years later, his country remains without a permanent constitution.” Credit: Creative Commons  

In September 2018, South Sudan’s major warring parties signed the Revitalized Agreement on the Resolution of Conflict in South Sudan (R-ARCSS), bringing five years of brutal civil war to a close. February 2021 marks one year since the establishment of the Revitalized Transnational Government of National Unity (RTGoNU). The formation of the RTGoNU was hailed as a major achievement because it indicated that the implementation of the R-ARCSS was succeeding.

However, a year after the formation of the RTGoNU and nearly a decade since becoming the world’s youngest country, South Sudan remains in dire straits. The country is in the throes of a protracted humanitarian crisis,[1]subnational conflict has ticked up and chances of a political settlement appear dim.

President Salva Kiir and first Vice President Riek Machar—the two main belligerents of the country’s brutal civil war—maintain a delicate peace. However, continued quarrelling over power-sharing arrangements and decentralization of authority threaten to derail the fragile progress that has been made. 

Many of these disagreements between Kiir, Machar and other aggrieved parties can be traced to the fact that South Sudan is a country without an official constitution. A series of transitional constitutions, coupled with weak rule of law, has inhibited the ability of the South Sudanese leadership to deliver services, craft a national identity and maintain harmony between its 64-recognized ethnic groups. South Sudan faces potentially destabilizing national elections as early as 2022, in what some observers are calling a “final showdown”between Kiir and Machar. To forge a durable political settlement and prevent further violence, space must be created for constructive dialogue to reassess critical constitutional provisions.

As starkly articulated in the International Crisis Group’s (ICG’s) February 2021 country report: “South Sudan—the world’s newest country—needs a reset, if not a redo.” Part of this process should be crafting a permanent constitution. 

Key Constitutional Issues

The architecture of government and decision-making is currently set out in the Transitional Constitution of South Sudan (TCSS). Initially conceived to be a temporary governing document at the time of South Sudan’s July 2011 independence, the TCSS is riddled with provisions that concentrate power in the executive, thus limiting consensus-building between the heavily-armed ethno-political blocs of the Dinka (President Kiir’s ethnic group and the nation’s largest), the Nuer (Machar’s bloc and the country’s second largest ethnic community) and the Equatorians, a scattered grouping of ethnicities along the southern border. 

Constitution-making in South Sudan has been exclusive and identarian 

South Sudan’s first governing document, the Interim Constitution of South Sudan (ICSS) was the outgrowth of the 2005 Comprehensive Peace Agreement (CPA) that marked the end of the 25-year civil war between the Khartoum government and southern rebels, represented by an austere commander named John Garang, who was at the helm of the Sudan People’s Liberation Army/Movement (SPLA/M).[2] The ICSS was drafted by signatories entirely without popular participation. The lack of citizen engagement was justified on the grounds that the ICSS was first concerned with stopping armed conflict, and then with fashioning a state.  

The ICSS set a precedent for a constitutional process that was exclusive and opaque. At the time of independence, concerned with securing his own power base, newly-minted President Kiir commissioned a constitutional review committee, through which the TCSS was established. This committee was stacked with elites directly affiliated with his political apparatus. The President’s appointment of a handful of opposition officials and civilian representatives to the committee was a weak attempt at popular participation, derided as feckless and performative. 

While the majority of provisions in the TCSS mirrored the ICSS, key alterations were the result of an exclusive, opaque process; veering South Sudan away from a consociationalist federal arrangement and vesting extraordinary power in the office of the executive.

The TCSS concentrates power in the hands of the executive

Three clauses in the TCSS have concentrated power in the center and have resulted in a presidency that controls the content of constitution-making while insulating itself from accountability for its actions.

Derivation of Authority (Article 3(2))

“The authority of the government at all levels shall derive from this Constitution and the law” Article 3 (2)

Traditional federal constitutions derive their authority from the will of the people, rather than the letter of the law. As discussed, the credibility of the TCSS, was suspect from its inception: lacking popular participation and not reflective of the norms, needs and desires of the South Sudanese people.

Extraordinary executive authority (Article 101)

“The President shall perform the following functions: “supervise constitutional institutions…initiative constitutional amendments and legislation…remove a state Governor and/or dissolve a state legislative assembly in the event of a crisis in the state.”


Article 101, which enumerates the responsibilities of the office of the President, created a king-like executive in South Sudan. President Kiir has interpreted these provisions as being without limit. For instance, only eighteen months after independence, he summarily dismissed the governors of both Lakes and Unity State. This act was wantonly unconstitutional and motivated by the governors’ perceived comradeship with VP Riek Machar. President Kiir has consistently exercised these provisions without due process.

In the run-up to the 2013 civil war, Machar publicly announced his intention to challenge Kiir in the 2015 federal elections. Harnessing his constitutional powers, Kiir worked to eviscerate Machar’s power base. In what many observers credit with the single act that most contributed to the start of conflict, in July 2013 Kiir stripped Machar of the vice presidency and dismissed all the ministers and deputy ministers of his cabinet. The civil war would erupt less than five months later.

Kiir retains unitary constitutional authority to strip any official of his or her role and can declare a state of emergency in defense of the “national interest.”

Non-democratic secession process (Article 102 (2))

“If the office of the President falls vacant, the post shall be assumed by the Vice President pending elections that shall be conducted by the National Elections Commission within sixty days of the vacancy.” Article 102 (2)

There is little doubt that VP Machar is interested in Kiir’s job. The fact that the VP does not automatically become president and that the National Elections Commission controls the reelection process, is a brazen mandate directed by the Presidency to ensure that makes it very difficult for Machar to assume the top post. 

Indeed, this clause underscores the wider instrumentalization of the ethnic security dilemma that persists in the country today. Factions locked out of power have few incentives to believe their access to decision-making structures are legally backstopped by constitutional provisions. They feel pressured to take up arms in order to secure their own sense of safety and well-being. This then leads to a brutal feedback loop of conflict that has played out with alarming regularity in post-independence South Sudan.

The Path Forward

While it is debatable whether constitutional issues were the sparks that catalyzed the South Sudanese Civil War, they certainly contributed to maintaining violence and restricting opportunities for successful resolutions. 

In order to ensure a peaceful transition and build constitutional resilience to shocks, South Sudan needs a permanent constitution. The TCSS was always considered a placeholder document; conceived as a constitution for a “nation-in-waiting” until a more robust constitutional process could occur after the predicted independence referendum. 

The new constitution must incorporate provisions that constrain the power of the executive, mandate the separation of powers and harness South Sudan’s diversity in a way that decentralizes decision-making and builds a culture of inclusivity.

Ensuring an open and participatory process is key: representative participation ensures durability and confers legitimacy. South Sudan’s permanent constitution must afford citizens the opportunity to fashion the constitution in their own image. There is a hearty appetite for this across all strata of South Sudanese society. A key indication of the centrality of constitutional issues is the fact that constitutional reform is a foundational pillar of the R-ARCSS—namely, the formation of a National Constitutional Review Committee which is tasked with triggering the process of building a permanent constitution. As of the time of writing, the constitutional committee has been appointed, but is currently inactive.

The primacy of power sharing. South Sudan’s winner-take-all electoral system offers few avenues for the inclusion of rivals. To prevent electoral losers from taking up arms, the position of the first vice-presidency could be reserved for the presidential runner-up with at least one other vice-presidency designated to the third most successful candidate (under the RTGoNU, there are five vice presidential positions). Furthermore, while decentralization is articulated in the TCCS, it has hardly been implemented since independence. Devolving power and decision-making to the regional and local levels creates buy-in and empowers local officials. 

Look to regional partners for successful ‘diversity management’ mechanisms . One option could be a home-grown ‘house of nationalities’, as in neighboring Ethiopia (although the current Tigray conflict calls the effect of such a system into question), whereby one representative from each of South Sudan’s 64 recognized ethnic groups would be elected to the lower house of parliament. This would have the dual effect of mitigating majority dominance and creating a platform where all ethnic groups have an equal stake, perhaps fostering an environment for the forging of a national identity. Another option could be rotating the presidency and top cabinet positions between ethnicities every election cycle.

Overall, the drafters should promote broad-based accommodation, balancing integrative design with an executive tempered by strong liberal institutions. Such a process will necessarily require compromise between South Sudan’s power-brokers, who at the moment, remain mostly opposed. Thus, creating space for substantive dialogue on constitutional reform must be a key priority, underscored by inclusive, local participation. 


[1] With 400,000 dead since the outbreak of fighting in 2013, four million people displaced and nearly half the population (5.8 million) in a state of acute food insecurity (UN OCHA South Sudan Humanitarian Needs Overview 2020)

[2] The SPLA represents the movement’s armed wing, while the SPLM is the movement’s political wing.

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The opposition of the people of Myanmar to the military coup is the last hope for democracy

By Daniele Rumolo

Daniele Rumolo is a human rights practitioner with over a decade of field work experience in the Balkans, Middle-East, and Asia with the United Nations and other international organizations. 

Demonstrators hold placards calling for the release of detained State Counselor Aung San Suu Kyi during a protest against the military coup outside the Chinese embassy in Yangon, Myanmar, 14 February 2021. Protests continue across the country despite orders banning mass gatherings and reports of police arresting anti-coup protesters in night-time arrests. Myanmar’s military junta on 13 February ordered the arrest of several prominent anti-coup activists while suspending privacy laws that restricted police from detaining suspects or searching private property without court warrants. EPA/LYNN ©

An unlawful seizure of power

In the early hours of 1 February, the Myanmar Army – known as the Tatmadaw – detained the country’s political leadership ahead of the swearing in ceremony of the new parliament following the political elections held in November 2020. Among others, the Tatmadaw detained President U Win Myint, State Counsellor Aung San Suu Kyi, and all previous Ministries and parliamentarians of the National League for Democracy (NLD). Following the designation of the military-appointed Vice President Myint Swe as Acting President in accordance with article 73 of the Constitution, Myint Swe declared a state of emergency pursuant to article 417 of the Constitution and transferred legislative, judicial, and executive powers to the Commander-in-Chief for an initial period of one year. 

Several authors and organizations, including the United Nations Office of the High Commissioner for Human RightsUniversity of New South Wales’ Professor Melissa CrouchUniversity of South Australia’s Senior Lecturer Dr Adam Simpson, and the International Commission of Jurists, have exposed the fallacies of the legal justifications put forward by the Tatmadaw to give legitimacy to their unlawful seizure of power. One of their most central critiques is that there was no emergency, constitutionally defined as an attempt “to take over the sovereignty of the Union by wrongful forcible means” resulting in “disintegration of the Union” or “disintegration of national solidarity”. The Tatmadaw staged the coup on the basis of electoral fraud without presenting any plausible evidence of their claims that over 10 million votes (approximately one third of the electorate) were fraudulent. 

On the contrary, preliminary conclusions of international observers (here and here) recognized compliance with international standards and the Union Electoral Commission (UEC) violated Covid-19 regulations certified the results. The NLD was certified to have won 399 seats of the 664-seat bicameral Union Parliament, which includes the 166 unelected military seats granted to the Tatmadaw by the 2008 military-drafted Constitution. Therefore, even if the claims by Tatmadaw had held ground, the NLD would still maintain a majority of sets that could be contested during elections. Lacking a legally valid state of emergency, the actions by the Tatmadaw aimed at overthrowing an elected Government are unlawful. 

The Civil Disobedience Movement

The opposition to the Tatmadaw materialized immediately after the arrest of the NLD politicians, with hundreds of thousands of people taking the streets to express their opposition to military rule and support for the continuous democratic development of Myanmar, request the unconditional release of the elected leaders, and demand a future based on the rule of law, respect of human rights, and fair economic development. Peaceful acts of protest continued in the night with people banging pots from their balconies given the imposition of curfews by the Tatmadaw in a failed attempt to halt the wave of opposition. 

A strong signal to the Tatmadaw came from doctors and nurses, who decided to go on strike despite a still-troubling COVID-19 situation. However, the doctors stressed that Myanmar’s health system is underdeveloped due to decades of neglect during military rules and it relies mostly on external support. Therefore, the consequences of the coup – including possible sanctions, cutting of political ties with foreign countries, and interruption of delivery of aid and vaccines – may impose even more dramatic consequences on the population of the country. The decision of the medical personnel was shortly followed by other civil servants, including teachers, public transport sector, and occasionally police officers, as well as employees of private businesses such as banks and, most recently, monks. 

Based on the example of other recent protests in the region, including Hong Kong and Thailand, the leaderless Civil Disobedience Movement continued to grow in size and creativity despite the great personal risks. While initially it was principally ethnic Bamar-based, the protests quickly obtained the support of minority ethnic groups. These protests show a solid cohesion of the Myanmar society against the military. Women, men, boys, and girls are peacefully demonstrating day after day and represent the last stronghold against an abusive military. They ask the world for actions rather than words and reiterate their readiness to give everything they have to prevent the military from returning the country to the black days of isolation regardless of personal risks.   

On 9 February, police opened fire on peaceful demonstrators, critically injuring a 19-year-old woman who later became the first victim of this coup. While incidents have remained limited albeit there has been an increase in recent days, the Tatmadaw and security forces have not yet made systematic use of force to silence dissent. However, memories of the Tatmadaw’s brutal actions to suppress the student movement in 1988 and the monk-led Saffron Revolution in 2007, coupled with decades of ruthless military campaigns in the ethnic States including Kachin, Shan, Karen, and Rakhine, have led to the belief that a violent suppression of dissent is inevitable. On 16 February, the United Nation Special Rapporteur on the Human Rights situation in Myanmar launched a preventive appeal to all who could potentially have some influence on the Tatmadaw to call for calm and continued respect of the right of the people of Myanmar to peacefully demonstrate and express their dissent. This was preceded by a statement from 14 embassies in Myanmar calling on security forces to refrain from violence and condemning the ongoing arrests.

How has the Tatmadaw responded so far?

Upon seizing control, the Tatmadaw took swift actions to cement their power by establishing a State Administration Council (SAC) headed by the five generals composing the top of the military chain of command. This body immediately replaced judges at the Supreme Court as well as judges in State and Regional courts. The lack of independence of the Myanmar judiciary, both civil and military, had already been repeatedly highlighted as one of the main obstacles to a genuine democratic advancement of the country – these military appointments will likely result in a farcical display of justice by the Tatmadaw to support their pretenses of legality. The politicization of the judiciary and the processes brought before the military-appointed courts is already evident with the laughable charges brought against the President – having violated Covid-19 regulations for waving at a NLD convoy in the electoral period – and the State Counsellor – having illegally imported walkie talkies and violated Covid-19 regulations – which may lead to imprisonment. Convictions will bar them from running in the future elections announced by the Tatmadaw at the end of the emergency period. Their exclusion will likely be certified by the UEC, whose members have also been replaced in full with military appointees and whose first task was annulling the results of the elections by withdrawing the letters of accreditation issued to the elected members of Parliament. 

To respond to the protests, the Tatmadaw first shut down Facebook, which is the most commonly used source of information in Myanmar. When users migrated to Twitter, it shut down that service as well, before ultimately switching off the internet for almost three full days. Currently, connectivity has been restored, although shutdowns occur during the night, with some speculating it is due to firewall upgrades carried out by Chinese companies on the overall Myanmar network structure. The Tatmadaw also approved a Cyber Security Law which imposes serious restrictions on online freedom of expression, and whose vague provisions allow for arbitrary interpretation and application with the scope of silencing dissent by imposing medium and long-term imprisonment penalties. During the NLD government, obsolete laws on defamation that lacked any clarity on the extent of their coverage were systematically used to shield politicians and Tatmadaw from criticism. There are therefore serious concerns that this Cyber Security Law will negatively impact the enjoyment of fundamental rights and freedoms, as voiced in an unusual statement opposing the passing of the bill issued by a telecommunication company registered in Myanmar.     

This law, and above all its potential application, is perfectly consistent with the approach of repression that the Tatmadaw uses when faced with opposition. As of 16 February, 426 people have been arrested, including members of the Parliament, UEC, and NLD civil society organizations, as well as students, activists, civil servants, reporters, artists, monks, and lawyers. Human Rights Defenders and members of civil society reported that the military and the police, in some cases supported by unidentified thugs, carried out door-to-door night raids to take people away. Complaints were made that the internet shutdown imposed through the night was instrumental to prevent information and alerts sharing. Residents of the areas where these raids took place have reportedly organized themselves to patrol streets and defend themselves. While the need to respond to these kidnapping-like operations is more than comprehensible, the creation of area-based patrol groups in a country characterized by tens of different armed groups with various degrees of control over various territories is nonetheless a concerning development once more caused by the Tatmadaw.    

From a human rights perspective, according to the findings of the monitoring activities of the United Nations Office of the High Commissioner for Human Rights, most detainees are held incommunicado without having access to lawyers of family members. The secrecy of military processes and actions, and to an extent the complete disregard for the rule of law by the Tatmadaw, make it unclear if any form of due process has been respected, including being brought before a court to hear the charges leading to the arrest, or if the treatment of prisoners, including freedom from torture or ill or degrading treatments and access to medical assistance, has been in compliance with national and international laws. The UN office warns that if circumstances of detention, including locations of deprivation of liberty, are not timely clarified, these acts may amount to enforced disappearances.    

What is next?

It is nearly impossible to predict what will happen in the coming days in Myanmar. What is certain is that the Civil Disobedience Movement will continue to oppose a return to military rule that, over approximately 70 years, has only brought poverty and injustice to Myanmar. History indicates that the Tatmadaw feel no remorse in killing thousands, as they did in the so-called 8888 Uprising. The people of Myanmar are fully aware of it. However, for the seventeenth day now, they fearlessly and peacefully demand their right to have their vote respected. 

The international community is toothless. The United Nations Security Council remains a hostage of its veto system that allows permanent members like China and Russia to protect the Tatmadaw. On 4 February, falling short of issuing a resolution, the members of the Security Council released a statement in which they expressed concern and emphasized the need for the continued support of the democratic transition in Myanmar. The United Nations Human Rights Council held a special session on 12 February producing an incredibly weak resolution, at least from the point of view of the substantive action the people of Myanmar are asking for. The Secretary-General’s Special Envoy for Myanmar warnedthe Tatmadaw of possible severe consequences in case of violent repression of the demonstrations. However, she failed to qualify her statement or indicate any consequence. The first country taking a strong position was New Zealand  which cut diplomatic ties with Myanmar. The United States was the first to impose sanctions and it redirected 42 million USD allocated to the Government to civil society organizations. Canada and the United Kingdom also have imposed targeted sanctions while the European Union is still considering the matter.   

The Association of Southeast Asian Nations (ASEAN), which is theoretically the only body that could exert some influence on the Tatmadaw, is unlikely to take any action, in compliance with its principle of non-interference in domestic matters, with a number of its members having described the coup as “an internal affair” On 1 February, ASEAN’s Chairman issued a statement calling to adherence to the principles of its charter, including democracy, the rule of law and good governance, respect for and protection of human rights and fundamental freedoms. No other information has been made available on any other action, diplomatic or otherwise, that ASEAN may have taken with the Tatmadaw.     

Talks of sanctions, which appear to be the only measure at disposal, have pros and cons, but have been heavily criticized by several analysts and Myanmar experts. Private companies could play an important role by ceasing any engagement with military companies and their affiliates, as strenuously recommended by the Independent International Fact-Finding Mission on Myanmar, while continuing deals with non-military businesses after implementing thorough human rights due diligence processes. 

Politically, it is unlikely the Tatmadaw will willingly relinquish power and restore the situation they have disrupted. The risk is that they will stall until the interest of the international community will fade away and they will have to reluctantly engage to an extent with the Tatmadaw. Meanwhile, the Tatmadaw will have free hand to arrest and terrorize the population of Myanmar by adopting and selectively implementing undemocratic laws without any compliance with international norms and principles. Once they feel secure enough, they may call for elections in which only military approved candidates will participate to pursue, in the words of the Commander-in-Chief, “discipline-flourishing democracy and development of the country”. 

Therefore, the only solution is to support in any possible way the Civil Disobedience Movement and their demands for democracy and respect of the electoral results. While the Tatmadaw will seek some form of international recognition, it becomes imperative that the level of attention and advocacy on Myanmar remains on everybody’s agenda, including states, international and non-profit organizations, academia, and civil society movements at large. Avoiding long-term adaptation to the status quo appears to be the most feasible response in an effort to uphold democratic and human rights principles.  

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Constitutional crisis continues: Kyrgyzstan’s constitution set for amendment

By Aspen Brooks

Aspen Brooks is a CCSDD Research Assistant and a first-year MAIA student at Johns Hopkins SAIS Europe.

Vyacheslav Oseledko/Agence France-Presse — Getty Images

If Kyrgyzstan is Central Asia’s “island of democracy,” the sea level is rising to hazardous levels. Instability and a power struggle following annulled elections left an opening for political opportunism in an already precarious constitutional order: an opportunity that Sadyr Japarov seized. Appointed interim President and Prime Minister in October, Japarov has now won a new presidential election, and empowered by a referendum regarding constitutional amendments, is poised to shift the government’s very structure. 

October unrest

Mass protests after Kyrgyzstan’s elections in early October led to President Sooronbai Jeenbekov resigning and appointing former MP Japarov as both interim President and Prime Minister. Before the protests, Japarov had been serving a prison term for attempting to kidnap a political opponent, but was freed by protestors during the unrest. 

The widespread protests were sparked when the Central Election Committee (CEC) announced the official election results, with only four out of 16 participating parties meeting the 7% vote share threshold to enter parliament. All four parties had close ties to the incumbent, Jeenbekov, or other established elites, which alongside credible accusations of irregularities in the election including vote buying prompted serious concerns about the legitimacy of the election.[1] The opposition parties announced that they would not accept the election results, and the CEC annulled the elections.

The country has shown a relatively strong civil society for the region, with the Tulip revolution of 2005 and April revolution of 2010 toppling President Askar Akayev and President Kurmanbek Bakiyev respectively. Although it could be argued that the citizenry’s resistance to corruption and election rigging demonstrates their commitment to democracy, it does not appear that Japarov shares the same commitment. 

Japarov began consolidating power by appointing a friend, Kamchybek Tashiev, as head of the State Committee for National Security (UKMK). Japarov and Tashiev oversaw a new anti-corruption campaign, which was met with criticisms of targeting political opponents—a claim supported by the fact that both leading opponents for the presidential election were imprisoned. In preparation for the January election, Japarov then resigned from the presidency and with the approval of Parliament appointed allies as acting president and prime minister so that he was eligible to stand as a candidate for the presidential election. 

Constitutional implications

Currently, Kyrgyzstan has a semi-presidential parliamentary system, but with a significantly more powerful president. In the referendum held alongside the January presidential election, voters opted to change to a presidential form of government through constitutional amendment. This will grant broader powers to Japarov, and opens the door to exacerbate authoritarian tendencies in the presidency. The January elections, unlike October, have been recognized as respecting basic freedoms by the OSCE, although observers also noted that Japarov had an advantage “from disproportionate financial means and misuse of administrative resources.” Although the voting process for the referendum was well conducted, its constitutionality remains questionable given that it was put forward by a parliament that extended its own term following the October electoral crisis.

The precise content of the upcoming constitutional amendments remains to be seen, but the shift to a presidential system will drastically expand the powers of the presidency, and likely do so without meaningful checks from other branches of the government. 


[1] The Organization for Security and Cooperation in Europe (OSCE) disclosed they had, “received numerous credible reports from interlocutors throughout the country about instances of vote buying and abuse of administrative resources.” This is in addition to election observers reporting witnessing civil servants pressured into participating in campaign events, hostile misinformation campaigns, intimidation, and concerns about the misuse of the right of voters to temporarily change their registration address leading up to the election. On the day of the election, ODIHR LEOM observers reported witnessing at least one instance of money being distributed to voters as well as bussing of voters. (Statement of Preliminary Findings and Conclusions, ODIHR)

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US Supports Dr Ngozi Okonjo-Iweala to Lead the WTO (Finally)

By Arthur Appleton

Arthur Appleton, JD, PhD is an Adjunct Professor of International Trade Law at SAIS Europe and a Partner with Appleton Luff – International Lawyers.

Ngozi Okonjo-Iweala Photographer: Fabrice Coffrini/AFP/Getty Images

Elections have consequences and the US presidential election is having positive consequences for the World Trade Organization (WTO). On Friday 5 February 2021 the Biden administration announced its strong support for the appointment of Dr Ngozi Okonjo-Iweala to be Director General of the WTO – a nomination that the Trump administration blocked in autumn 2020. This is an important development for several reasons:

  • The US change of position marks the reengagement of the United States with multilateralism, the WTO, and the rule-based international trade system.
  • When appointed, Dr Okonjo-Iweala will be the first woman and the first African to head the WTO. With the exception of Roberto Azevêdo (Brazilian) and Supachai Panitchpakdi (Thai), all previous GATT and WTO Directors General have been from the developed world.
  • The Trump Administration’s decision to single-handedly block Dr Okonjo-Iweala’s appointment was particularly disruptive as the post of Director General had been vacant since August 2020. Its decision was also unusual as the United States is a major beneficiary of the international trade regime and Dr Okonjo-Iweala knows the United States well. A Nigerian citizen, Dr Okonjo-Iweala studied and worked for many years in the United States and acquired US citizenship in 2019.

Gender, race and developing country considerations are important in the WTO’s appointment process. Even more important is the experience Dr Okonjo-Iweala will bring to the WTO. She holds a BA in Economics (magna cum laude) from Harvard and a PhD in Regional Economics and Development from MIT. A mother of four, she worked for 25 years at the World Bank, rising to the position of Managing Director. She also served twice as Nigeria’s Finance Minister, where she was known as a debt reform and anti-corruption advocate, and she served for three months as Nigeria’s Minister of Foreign Affairs. In addition, Dr Okonjo-Iweala is the former Board Chair of Gavi (The Vaccine Alliance) and sits on the Boards of both Twitter and Standard Chartered Bank. In short, she is extremely well-qualified to manage and lead the WTO.

Dr Okonjo-Iweala will face many challenges when her appointment is finalized. She will have the difficult task of restoring US confidence in the international trade regime. She will also have the difficult task of making the WTO more responsive to the needs of the developing countries which make up the majority of its membership. Finally, she will be tasked with reform of the WTO’s dispute settlement system. The Trump administration was hostile to the WTO in general and the WTO’s Appellate Body in particular. It held the dispute settlement system hostage by blocking all Appellate Body appointments; this eventually led to the Appellate Body’s (hopefully temporary) demise. Although it was never clear how the Trump administration would “reform” the dispute settlement system, the US Trade Representative’s criticisms were ably presented in a 174 page USTR Report. There are points raised by the USTR that merit careful consideration by Dr Okonjo-Iweala’s and the WTO’s membership. 

Dr Okonjo-Iweala’s credentials are impeccable. Her ability to rise to the top of the World Bank and the government of Nigeria, and her ability to navigate both the corporate and the NGO world bode well for her ability to lead the World Trade Organization. Both developed and developing countries should be enthused.

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The Italian “National Memorial Day of the Exiles and Foibe” and the “the Eastern Border Affair”: Another Wall in European Memory?

By Dr. Carna Pistan 

Affiliated Scholar at the Center for Constitutional Studies and Democratic Development and Marie Curie Global Fellow for the project “Illusions of Eternity: the Constitution as a lieu de mémoire and the Problem of Collective Remembrance in the Western Balkans”

Example of a foiba

February 10 is the Italian “National Memorial Day of the Exiles and Foibe” (or Giorno del ricordo in Italian language). It was established in 2004 to commemorate the victims of the Foibe massacres and the Istrian-Dalmatian Exodus. Yet the two events, Foibe and Exodus, are never easy to recount, as they are both strictly related to the very complex “Eastern border affair.” A “foiba” (plural “foibe”) is a natural sinkhole, up to 200 meters deep, formed by water erosion; it is a natural phenomenon typical of the Karst (Carso) region – an area today divided between Italy, Slovenia and Croatia. Between the second half of 1943 and 1947, parts of Venezia Giulia and Dalmatia, which were then Italian territories, were occupied by the Yugoslav armed forces who committed mass killings against the local Italian population. These mass killings are known as Foibe massacres as they took place near these natural karstic cavities, in which the corpses of the victims were thrown. Today, however, the term Foibe is often used in a more symbolic way so as to encompass all the victims of Yugoslav repression (not only those thrown in the sinkholes which represent a minority of victims, but also those who died on the road to deportation, or in Yugoslav jails and concentration camps). The term Exiles refers to what then followed: the Exodus of almost all of the Italian population from Istria and Dalmatia as a result of the transfer of most parts of Venezia Giulia from Italy to Yugoslavia through the Paris Peace Treaty of 10 February 1947. 

For many years, the memory of Foibe and the Exiles was buried in oblivion. The Exodus occurred during the Cold War, when Italy had to solve the question of Trieste with Yugoslavia. Once the temporary solution to this was found through the 1954 London Memorandum, the political interest was to preserve good relations with Yugoslavia, which soon became an important commercial partner. In addition, from the 1950s Yugoslavia became a useful non-aligned state between the two blocs. Thus, a sort of tacit agreement was reached between the two countries: Italy did not evoke the memory of Foibe and the Exiles; in turn, Yugoslavia never asked for the delivery of Italian war criminals, as provided for in the Peace Treaty. 

It was only in the 1990s, following the fall of communism and the break-up of Yugoslavia, that the first attempts aimed at including the memory of Foibe and the Exiles in the official national memory took place; these attempts then culminated in the adoption of the Law 92 of 30 March 2004. The latter established the Giorno del ricordo with the aim of “preserving and renewing the memory of the tragedy of Italians and of all victims of foibe massacres and of the exodus of people from Istria, Fiume [Rijeka] and Dalmatia after the Second World War and of the more complex “Eastern border affair.” The date chosen for the remembrance day was 10 February – the anniversary of the signature of the 1947 Paris Treaty, with which Italy ceded Istria and Dalmatia to Yugoslavia. Furthermore, the 2004 memory law granted to all relatives of the victims (excluding those condemned by a court for collaboration with the Nazis) an award, consisting of a medal with the imprinting “La Repubblica italiana ricorda” (The Italian Republic remembers). The 2004 memory law also envisaged the establishment of a museum of Julian-Dalmatian civilization in Trieste and a Museum of Fiume in Rome. Thus, since 2005 the Memorial Day has been celebrated in Italy each year on 10th February with a number of initiatives, involving schools, public and private television, and local and national institutions (including the Presidency of the Republic).

Location of the foibe

Although the 2004 memory law was welcomed and acclaimed by many, and voted by almost all political forces present in the Italian Parliament, the establishment of the Memorial Day has also been criticized by several intellectuals. The major critics involve the officially accepted narrative about Foibe and the Exodus (promoted by the Italian right and accepted by the left), which is mainly structured around two main points: the communist Yugoslav partisans killed and expelled Italians, and for a very long period of Italian history, politicians and schools ignored what had happened. Both points correspond to the historical truth, but they have been criticized because they represent only one part of the truth. The other part of the truth is a longer history of violence, which began with Fascism and its policy of oppression of the minority Slovenes and Croats; it then continued during the Italian-German occupation of Yugoslavia, and the horrors of the Nazi-Fascist repression; for example, in the Italian occupied areas, civilians were killed as reprisals for the deaths of Italian soldiers and thousands were put in concentration camps. The Italian crimes, certainly, do not justify the Yugoslav reaction, the Foibe massacres and Exodus, but they certainly help to better understand the historical context under which they occurred. 

Yet it is true that memory-making is always selective (as its main goal is identity creation), but the concept of “ethics of memory” also exists asking us to recognize our own national guilts committed during an undemocratic past. By erasing its own faults from the past, the Italian official narrative about the Foibe and Exodus follows a typical nationalist construction of victimhood (the innocent Italian people) and blaming the other side (barbaric Slavs) for all evils. It further allowed Italy to consider the two events as an ethnic cleansing or (quasi-)genocide, which is contrary to what has been already established by historical research; the latter has shown that the primary targets of Yugoslav repression were supporters of the Fascist regime and opponents of the Yugoslav Partisan forces; atrocities have been thus committed also against Slavic collaborators, meaning that Slovenes and Croats too were killed and left dying in the sinkholes. Furthermore, it is claimed that “millions” were killed in the Foibe, while the usually accepted numbers for the Exiles is 350,000, and for those killed and thrown into the caves between 5,000 and 15,000. Thus, there is no need to exaggerate with the numbers; as has been observed “by any standards, this was a massacre and an exodus”. Finally, the date chosen for the remembrance day has also been the object of criticism; it is not only the anniversary of the 1947 Peace Treaty, but it comes just two weeks after the “Day of Memory” (Giorno della memoria) which commemorates the victims of the Holocaust. By calling the Foibe an “Italian Holocaust” some intellectuals have seen the Giorno del ricordo as a kind of counterbalance of the Giornata della memoria

Not surprisingly, since 2004 the Italian official narrative about Foibe and the Exiles has triggered memory wars with Slovenia and Croatia. While several people in Croatia consider the Italian Memorial Day a form of neo-fascist revisionism, others in Slovenia argued that Slovenes persecuted during fascism should also be commemorated. Thus while Italy commemorates on 10th February the Exodus and the Foibe, Slovenia celebrates on 15 September the “restitution of the coast to the motherland”, and commemorates the persecution of Slovenes during Italy’s monarchy. Today, with all three countries in the European Union, and with Italy pushing the EU institutions to institute a “European Day of Remembrance of the Victims of the Foibe Massacres,” without the inclusion of the Italian crimes in the Julian March, there is a risk that the divisive narrative about the Foibe and Exile will become another wall in European Memory. 

Disclaimer: The views expressed herein are the author’s own and do not necessarily reflect the position of the CCSDD

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Security as a Patriarchal Structure

By Amber Malone

“Without a feminist perspective, policymakers will be limited in their capability to address the needs of insecure populations, and women – especially asylum-seeking women – will continue to be disproportionately impacted by violence.”

In the piece that follows, student blogger, Amber Malone, charts the exegesis of how traditional approaches to security obscure the contribution of women, accentuate male bias, and inadvertently reinforce male dominance in issues that address security challenges especially for groups that are often at risk, and on the fringes of society.

Amidst the seemingly insurmountable challenge of displacement, how governments “speak security” frames the discourse surrounding the protection of refugee5s and internally displaced persons. Underlining the conferral of refugee status and protections, the duality of security – state security and human security – raises a few critical concerns. Which of the two should be prioritized? Is a balance conceivable? How should States respond to humanitarian matters while respecting national interests and the wellbeing of vulnerable groups?

More importantly, while states struggle with effective migration governance, insecurities are increasing amongst one of the most vulnerable subsets of the refugee and migrant population: asylum-seeking women. Some States – grappling to control the flow of refugees for the benefit of national security – have enacted policies and continue to pursue practices that increase the vulnerability of refugee women. While there tends to be much focus on incorporating human security as a complementary tool to state security in migration management, some scholars call for a greater emphasis on a feminist perspective in  human security. Reexamining human security through the lens of feminism not only allows States to challenge power dynamics, but also address the growing insecurity of vulnerable populations, more specifically migrant and asylum-seeking women.[1]

The issues surrounding the governance and management of migration run deeper than legal limitations. The policies that governments enact are rooted in social, political, and economic structures that intertwine gender and security. Many contemporary security scholars and practitioners claim that addressing security concerns from a feminist approach offers deeper insight into a gender hierarchy in international affairs, the behavior of States, and the insecurity of groups on the periphery of interstate politics.[2]

A feminist critique of human security serves to render more visible the experiences of women and challenge the patriarchal assumptions and male privilege in security. This feminist critique of migration policy poses one question: how and whose security is emphasized in the management of migration?

As a conceopt, security is usually defined by the status quo or discourse set by diplomatic and inter-state relations. State interest in limiting the conferral of specific rights based on citizenship does not always coincide with the concept of human rights.[3] Under the scope of state security, differences translate into threats to national interests, and the rights and needs of refugees and migrants often take a backseat to ideological issues.[4] Traditionally, States regard security from a realist, militarized perspective. This particular approach delineates security as simply protection from invasion or attacks by other powers.[5] This realist approach presents a narrow conception of security given that it positions the State as the sole focus of security and does not consider the human costs.[6] Furthermore, the merging of feminist studies with international relations reveals a “gender dimension” in the practice of security. More specifically, it unpacks the entrenched roles and characteristics given to men and women in the practice of security.

The United Nations University defines human security as “being concerned with the protection of people from critical and life-threatening dangers, regardless of whether the threats are rooted in anthropogenic activities or natural events, whether they lie within or outside states, and whether they are direct or structural.”[7] Through the traditional lens of security, humanitarianism is viewed as entirely separate or unrelated. In other words, state security tends to put issues such as human displacement, resettlement, and protection on the periphery of politics. However, security, in a general sense, is the condition of feeling safe and protected, a concept often encompassed in human rights discussions. Therefore, the protection of human rights is intricately linked to human security. As such, contemporary security or state security alone is insufficient for addressing human welfare.

Many contemporary scholars and schools have challenged this unidimensional understanding of security. However, their criticisms, for the most part, have not acknowledged how interstate politics and migration management are driven by notions and values intrinsically linked to masculinity.[8] Without a feminist perspective, policymakers will be limited in their capability to address the needs of insecure populations and women – especially asylum-seeking women – will continue to be disproportionately impacted by violence

Structural violence has a disproportionate, gendered impact upon human bodies.[9] Numerous studies demonstrate a strong link between the structural and sexual violence against women in militarized societies in times of peace and during times of conflict. [10] Therefore, how governments approach issues of security is gendered and gendering. According to Sheperd (2010), there are two ways in which violence is gendered in masculinist societies that uphold militarism as a security ideology. First, there is physical violence or the threat of physical violence, such as rape, against vulnerable populations to strip them of their political or economic assets. Second, there is gender violence that occurs due to socially constructed ideas about masculinity and femininity.[11] This violence is also gendering because it reproduces binary oppositions surrounding masculinity, femininity, and the militarized conception of security.[12]

Escaping persecution and conflict poses gendered risks and burdens. In their countries of origin, transit countries, and host countries, refugee and asylum-seeking women face numerous challenges.[13] In refugee camps, women are often tasked with the responsibility of logistical and administrative duties in addition to being the primary caretakers of their families. Furthermore, the gendered challenges that refugee women face are further exacerbated by camps in which the social and geographical structures are continually changing. Refugee women are forced to compensate for inadequate facilities and a lack of resources such as healthcare, food, water, and firewood.[14] These challenges create precarious and unsafe situations for women. Instead of providing solutions to the subjugation of women, refugee camps become a hotspot for violence and exploitation, reinforcing their subordination.[15]

A feminist critique of human security serves to render more visible the experiences of women and challenge the patriarchal assumptions and male privilege in security. This feminist critique of migration policy poses one question: how and whose security is emphasized in migration policy?

Redefining security and insecurity through postmodernist feminist theory amplifies the range of women voices.[16] In addition, a feminist approach legitimizes the “provision of care” as an essential component of security. Tickner argues that constructing a concept of security based on a feminist perspective requires a postmodernist approach as prevalent approaches to security are militarized and focus on great powers.[17] Furthermore, a postmodern feminist perspective reveals the gender hierarchies and gender roles that are enmeshed in the challenges that refugee men and women face. The first area of concern is data collection to identify high-risk areas. This initiative would involve the participation of field offices, organizations, and volunteers to identify current risks for sexual and gender-based violence and the accessibility of available protection services in refugee complexes. Second, improving the accessibility of resources and educating in-field organizations about gendered insecurity would aid in developing preventive strategies and responses to SGBV and other gendered security challenges. In addition to more a comprehensive response, extending critical information concerning social and economic affairs as well as bureaucratic regulations to individuals will help refugee and asylum-seeking women make informed decisions and mitigate recourse to desperate measures.


[1] “The Ethics of Care and Global Politics.” The Ethics of Care: A Feminist Approach to Human Security, by Fiona Robinson, Temple University Press, 2011, pp. 41. JSTOR, http://www.jstor.org/stable/j.ctt14bt8bq.5.

[2] Tickner, J. Ann. “Feminism and Security.” Security Studies: a Reader, edited by Hughes, Christopher. Routledge, 2011, pp. 47.

[3] “The Global Compact for Safe, Orderly, and Regular Migration: What Is Its Contribution to International Migration Law?” QIL QDI, 2 May 2019, http://www.qil-qdi.org/the-global-compact-for-safe-orderly-and-regular-migration-what-is-its-contribution-to-international-migration-law/.

[4] Newman, Edward. “Critical Human Security Studies.” Review of International Studies, vol. 36, no. 1, 2010, pp. 77–94. JSTOR, http://www.jstor.org/stable/40588105.

[5] Hama, Hawre Hasan. “State Security, Societal Security, and Human Security.” Jadavpur Journal of International Relations, vol. 21, no. 1, June 2017, pp. 2, doi:10.1177/0973598417706591.

[6] Kerr, P. 2010. ‘Human Security’, in A. Collins, ed., Contemporary Security Studies (pp. 121–135). New York, NY: Oxford University Press.

[7] Newman, Edward 83.

[8] Tickner, J. Ann. “Feminism and Security.” Security Studies: a Reader, edited by Hughes, Christopher. Routledge, 2011, pp. 49

[9] A. Gasztold, A Feminist Approach to Security Studies, „Przegląd Politologiczny” 2017, nr 3, pp. 184

[10] Shepherd, Laura J. “Gendering Security;” The Routledge Handbook of New Security Studies, edited by J. Peter Burgess. Routledge, 2010, pp. 73

[11] Shepherd, Laura J. “Gendering Security;” The Routledge Handbook of New Security Studies, edited by J. Peter Burgess. Routledge, 2010, pp. 75

[12] Shepherd, Laura J. “Gendering Security;” The Routledge Handbook of New Security Studies, edited by J. Peter Burgess. Routledge, 2010, pp. 77

[13] Skou, Viktoria. “Women in Dadaab:On the Gendered Insecurities in Forced Displacement.” Lunds universitet- Statsvetenskapliga institutionen, pp. 6.

[14] Skou, Viktoria. “Women in Dadaab: On the Gendered Insecurities in Forced Displacement.” Lunds universitet- Statsvetenskapliga institutionen, pp. 14.

[15] Sinead Murray and Anne Achieng, Gender-Based Violence Assessment Hagadera Refugee Camp Dadaab, Kenya (Nairobi: IRC, 2011), 4.

[16] Tickner, J. Ann. “Feminism and Security.” Security Studies: a Reader, edited by Hughes, Christopher. Routledge, 2011, pp. 48

[17] Tickner, J. Ann. “Feminism and Security.” Security Studies: a Reader, edited by Hughes, Christopher. Routledge, 2011, pp. 48

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Human rights and democracy in the covid-19 era: experience from Republic of Moldova

By Sorina Pinzaru

In this short article, student guest contributor Sorina Pinzaru reflects on the declaration of a State of Emergency in the Republic of Moldova during the covid era, and the ramification same has had for human rights and freedoms of its people.

Being a state that has been cultivating democratic principles for relatively few years, the Republic of Moldova is still strongly influenced by the long soviet experience. Principles such as the rule of law, separation of power, fundamental rights and freedoms are weak and not always fully guaranteed. Especially during a state of emergency, the exceptional legal order may lead the way for systematic human rights violations and undermine democratic principles. On the grounds of this, states of emergency are critically important from a human rights perspective. In order to limit freedoms and fundamental rights, constitutional and international provisions must be respected during a state of emergency.

For the first time in its history, the Republic of Moldova declared a state of emergency to deal with the pandemic. Although the Moldovan Constitution allows for a state of emergency, it does not define in detail what constitutes an emergency or regulates questions related to competence, limits, or controls. Accordingly, an organic law regulates all such aspects.

On March 17, 2020, the  Moldovan Parliament adopted Law no.54 to amend Law no. 212/2004 on the regime of the state of emergency, siege and war.  Article 20 of the law on the regime of the State of Emergency, Siege and War, which provides for the measures applicable during the state of emergency was supplemented by a new letter k). It allowed the “application of other necessary measures”.  A similar provision – exercise other necessary attributions-  was introduced in articles 22 (attributions of the Commission for Exceptional Situations of the Republic of Moldova), 24 (attributions of the Civil Protection Service and Exceptional Situations) and 25 (attributions of the Ministry of Interior). Furthermore, the part“adopt, amend or abrogate organic laws and electoral legislation” of article 4, para. 2, was cancelled.[1] In other words, organic laws and electoral legislation could be adopted, amended or abrogated during a state of emergency.  The amending law entered into force only after its publication in the Official Gazette, on March 18, 2020. On the same day, March 17, a Parliament Decision no. 55 was issued, declaring the state of emergency with an immediate effect.[2] When the amending law of the state of emergency regulation was modified, the state of emergency was already in force.

 At point 12 of article 2 of the Decision regarding the power attributions of the Commission for Exceptional Situations, the expression “application of other necessary measures” was proposed again to prevent, mitigate and eliminate the consequences of the coronavirus pandemic (COVID-19)”.

A group of MPs addressed the Constitutional Court of the Republic of Moldova with a petition to check on the constitutionality of the amending provisions on the State of Emergency, Siege and War and point 12 of Decision no. 55.[3] The petitioners claimed that adopting the contested provisions of Law no.54 and Decision no.55 on March 17, 2020, the Parliament of the Republic of Moldova defied the following fundamental constitutional principles and the expressed norms of the Supreme Law:

  • Art. 23 of the Constitution – The right of every person to know his duties;
    • Art. 54 of the Constitution – Restriction of the exercise of individual rights and freedoms.

The inclusion in Articles 20, 22, 24 and 25 of Law 212/2004 of expressions such as “application of other necessary measures” or “exercise other necessary attributions” defied the principle of predictability and accessibility of the Law provided in art. 23 of the Constitution. In order to meet the condition of predictability, the law must be sufficiently detailed so that a subject of law can reasonably understand the content of the law and be predictable in terms of its consequences.[4] Not only laws must be made known to the public, but the subject of law should reasonably expect the rule may be changed. It is practically infeasible to analyse the predictability of the amending provisions- “application of other necessary measures” or “exercise other necessary attributions”- as they thereof do not provide the necessary clarity about how and which rights and freedoms may be restricted. The provisions offer imprecise and generic power to the authorities. These may trigger harsh side effects.

The lack of a precise legal rule to determine exactly what measures might be applied, and the spectrum of the powers of the authorities, open the possibility of potential abuses by the competent authorities. The regulatory framework in such a sensitive period should be carried out in a transparent, predictable, and unobtrusive manner, to remove, as far as possible, the eventuality of any arbitrary situation or the abuse of those called to apply the provisions. However, this is impossible, because the subject of law does know what to expect from the authorities, due to the imperfection related to accuracy, clarity, predictability and necessity.

The notion of a state of emergency established in Article 1 defines as a set of measures with a political, economic, social character. Once established, these measures should be expressly provided by law, precise and predictable. Only in these conditions will be observed art.54 of the Constitution, which expressly establishes that rights and freedoms can be restricted only in the cases provided by law. However, by adopting Law no. 54 and the Decision no. 55, the Parliament admitted a norm by which the fundamental human rights and freedoms may be restricted by measures that are not provided by law.

According to Article 5 of Law no. 212 on the regime of the State of Emergency, Siege and War, during a state of emergency, may be restricted the exercise of individual rights or freedoms of citizens under art. 54 of the Constitution. The restrictions provided for in paragraph (1) should be in accordance with the obligations arising from international treaties on fundamental human rights to which the Republic of Moldova is a party.

Restriction of human rights and freedoms is an exception regulated by the fundamental law, which gives the legislators leverage to act in certain critical situations, being able to impose limits, in situations expressly provided for by the law, on guaranteeing certain fundamental rights. Reference should be made to the Universal Declaration of Human Rights, namely Article 29 para. (2). In order to restrict individual rights, the provision shows the necessity of an expressed regulation, considering first of all the compliance with the principles of accessibility, clarity and predictability. The law within the meaning of this provision must provide exhaustive and precise perspectives on the rights and freedoms to be restricted.

The European Convention on Human Rights enshrines the possibility of the restriction of rights in several circumstances: in the case of the freedom of thought, conscience and religion. ECHR offers the same textual approach in the case of freedom of expression, the rights to respect for private and family life, as well as in the case of freedom of movement. It is emphasised the obligation of the state for providing the restriction of rights by law. In order to build a legislative framework designed to intervene promptly in the elucidation of exceptional situations, the legislative text should expressly provide for the rights and freedoms to be restricted.

The provisions of art. 4 paras. (1), art. 5 para. (2), art. 12 para. (3), arts. 18-19, art. 21, art. 22 para. (2) of the International Covenant on Civil and Political Rights, lays down the manner of restricting certain rights. In the sense of this international norm, it is imperative to regulate the restriction by law but also to have specific reasoning.

In the context of the petition submitted to the Constitutional Court, the expressions used by the legislators in the text of the amending law: “application of other necessary measures” or “exercise other required tasks” do not offer the subject of law an expressed guarantee on the respect of rights and freedoms. In a state governed by the rule of law, the legal norm must always be interpreted prioritising the freedom over authority. This way of interpretation is natural since the text is aimed at guaranteeing the fundamental rights and freedoms. Where a term broadening the authority’s powers is used, the term must always be interpreted stricto sensu. In this context, expressed and specific provisions on the restriction of rights are necessary.

Law should guarantee the principles of predictability and accessibility. In the European Court of Human Rights’ jurisdiction it is important to ensure these two principles and to establish the conditions for a sufficient precision to regulate the conduct and foresee the consequences.

 The ECtHR recalls that a “law”, within the meaning of Article 10, section 2 of the Convention, is a rule formulated with sufficient precision allowing citizens to decide their conduct and foreseeing, reasonably, depending on the circumstances of the case, the consequences that might result from a particular fact.[5] On the contrary, the expressions introduced do not provide the possibility to anticipate certain events, requests or prohibitions from the authorities and does not offer the possibility to decide about the conduct not yet covered by the legal norms.

 Also, the activation of article 15 could be interpreted as a protection measure in favour of the state for not being accused at the European Court of Human Rights, it is a premise for Human Rights violations.

Having examined the request, the Moldovan Constitutional Court claimed that the authors of the petition were limited to a simple statement which criticised the provisions that would be likely to cause serious harm to human rights and fundamental freedoms. The Court considered that the arguments must be brought regarding the intensity and possible damages. Moreover, arguments supporting the imminent and irreparable negative consequences of the risk were needed. The Court considered the risk being abstract and a solid motivation was necessary in order to suspend the notified prohibitions under the State of Emergency. The mere invocation of the risk did not represent a sufficient and convincing motivation.  And the Court did not take into consideration any international obligation to which the Republic of Moldova must conform in order to constitutionally restrict the fundamental rights. Therefore, the Constitutional Court rejected the request, retaining it unmotivated, and did not consider the international obligations that must be respected.

Starting with May 17, 2020, the state of emergency has been continuing only in public health. It was prolonged for several times with the maintenance of most of the bans approved during the state of emergency.[6]

The organizational effort of the authorities was appreciable even if the efficiency in combating the spread of COVID-19 infection proved to be unsatisfactory. It suffered from the involvement of the political factor to the detriment of the professional one in the process of adopting and implementing measures to prevent and combat the spread of COVID-19 infection. The discussion and adoption of decisions on multiple platforms, with the participation of representatives of the country’s top leadership, was followed by the formalization of those decisions by the competent institutions. This has considerably diminished the share of the voice of medical professionals in the process of making final decisions.

The Commission for Exceptional Situations and the Extraordinary National Commission of Public Health did not have a clear and transparent decision-making mechanism. Consequently, several adverse effects emerged with a negative impact on human rights including the reduction to 48 hours of the term for contesting the administrative sanctions, not being guaranteed the rights to defence; a restricted term up to 24 hours to contest the provisions of the CSE without any possibility of rescheduling.[7]  Moreover, the effectiveness of deterrents for those who violated the restrictions imposed by the authorities during emergencies was undermined by the lack of adequate legal provisions for the application of individualized punishments, which were initially exaggerated and used arbitrarily to later be declared unconstitutional.[8] There has been an attempt to pass a law rapidly involving a loan agreement  with Russia which could have involved fraudulent schemes against citizens’ interests. The law however was declared unconstitutional.[9]

The Moldovan state has been challenged by the pandemic crisis: not only  because of the limited financial resources but especially because of the rule of law weakness which cannot guarantee the respect of human rights. Not having lived under a fully democratic regime for many decades is an important factor which explains the difficulty and the slowness that the country tries to overcome.


[1] Article 4, para. 2 of the Law no. 212/2004 on regime of the state of emergency, siege and war not amended: “During the state of emergency, siege or war, established throughout the country, it is not allowed to amend the Constitution, adopt, amend or repeal organic laws and electoral legislation, as well as conduct elections of central and local public authorities and republican and local referendums available at: https://www.legis.md/cautare/getResults?doc_id=27022&lang=ro# .

[2] Parliament Decision no.55 available at: https://www.legis.md/cautare/getResults?doc_id=120817&lang=ro .

[3] Also art.2, point 12 , of the Decision no.55 provided for “exercise other necessary measures”.

[4] Case of Rotaru v. Romania, Application no. 28341/95, ECtHR Judgment of 04.05.2000.

[5] Case of Amihalachioaie v. Moldova, Application no. 60115/00 para. 25, ECtHR Judgment of 20.04.2004.

[6] https://cancelaria.gov.md/sites/default/files/hotarirea_cnesp_nr.35_27.11.2020.pdf.

[7] http://ombudsman.md/despre/stiri-covid-19/.

[8] http://www.constcourt.md/libview.php?l=ro&idc=7&id=1884&t=/Media/Noutati/Cuantumul-minim-de-450-unitati-conventionale-al-amenzii-aplicate-persoanei-fizice-pentru-nerespectarea-masurilor-de-profilaxie-prevenire-sisau-combatere-a-bolilor-epidemice-daca-acest-fapt-a-pus-in-pericol-sanatatea-publica-neconstitutional-sesizarile-nr-61a2020-nr-62a2020-i-nr-67g20120.

[9] http://www.constcourt.md/libview.php?l=ro&idc=7&id=1836&t=/Media/Noutati/Acordul-intre-Guvernul-Republicii-Moldova-i-Guvernul-Federatiei-Ruse-privind-acordarea-Guvernului-Republicii-Moldova-a-unui-imprumut-financiar-de-stat-neconstitutional.

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What the world can learn from scenes at the United States Capitol Today, January 06, 2021 as Electoral College Votes are counted

By Matthew Nyanplu

Angry mobs, mainly pro Trump supporters today stormed the United States Capitol as Electoral College Votes are being counted to certify Democratic Joe Biden’s win of the US Elections of November 03, 2020. Mr Trump has not accepted defeat, and his supporters are hoping to take it by force.

These are some lessons we can learn from today’s scenes at the United States Capitol:

1.) If Mr Donald Trump was the President of a third world country, he would have out-rightly rigged the elections, and deployed state security forces to hold on to power. Today, the United States, the “greatest” nation of earth gets a feel of what dictators in third world countries do.

2.) Thankfully, we can trust the strength of US Institutions that this broad day power grab, no matter what, will not see the light of day. We believe the United States is strong enough to ensure that the will of its majority citizens who voted Joe Biden is respected. It says much about the difference between third world and consolidated democracies; and this is why leaders in third world countries often tamper with State Institutions. Because it is exactly at these moments that they endear state institutions to act towards their selfish ends, in violation of popular will. We trust the US will fend off this challenge and hopefully its citizens will NEVER toy with authoritarian tendencies.

3.) The third lesson is to us citizens from third world countries; we should also NOT toy with authoritarian and illiberal tendencies. As the United States situation shows to us, even the most sophisticated democracy is fragile, and democracy can be lost. As we vote, in spite of whatever disapproval of the political status quo, we should NEVER be tempted to try “non politicians” in political positions as high as the Presidency. The consequences are dire, most especially if such a figure shows gross disregard for established precedents and the most basic tenets of democracy, free expression. It can get worse as we see from the United States today. Mr Donald Trump is trying to superimpose himself on the people of the United States by stealing away the power that they took away from him on November 03, 2020. If this were a third world country, and Mr. Trump finding it difficult to get his will through, the military would have helped him, and we know too well the consequences, a civil war could be the ultimate end, and lives would be lost, maybe in the hundreds of thousands. Thankfully, we trust the United States is sophisticated for this, and we hope she fends this off and moves forward. The world is watching and the world looks to America for leadership of the free world.

Matthew Nyanplu is Student Chief Editor of this blog. He is pursuing a master of arts in international affairs at Johns Hopkins SAIS Europe.

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How the lack of an internationally coherent definition of trafficking-in-persons obscures the act, and abets perpetrators

Human trafficking continues to affect human lives around the world. It turns out that perpetrators find loopholes in the inconsistent definition of the act across countries to ply their trade. Different countries rely on their penal codes to define what constitutes a crime and what does not. But traffickers find havens in the fact that across borders, definitions diverge. Who a trafficker is in a particular country may differ based on criminal statutes. But the trade booms across borders. In this series looking at trafficking-in-persons, student bloggers Amber Malone and Nicolas Carpenter take on the issue and suggest ways how countries can coordinate their definition of the crime to act in a coordinated way against perpetrators, save victims, restore their human rights and dignity and stamp out the act.

Human trafficking is among the most pervasive crimes committed in the world. Human trafficking is present in every country and every region of the world. There seem to be no exceptions in terms cultures, economic prosperity, or political system. Wherever there is economic activity there is human trafficking. No one would dispute that human trafficking threatens lives, livelihoods and human dignity. Indeed, traffickers harm their victims and threaten the rule of law in the countries they operate. The European Union places it amongst other challenges to human rights and democracy as it robs victims of the right to self-determination, bodily autonomy, and the ability to provide for themselves. Undoubtedly it harms the individual’s human rights and is not conducive to any human society.

But what is human trafficking? The foremost obstacle in confronting human trafficking is simply creating an accurate perception and forming an agreed-upon definition among ordinary citizens, NGOs, and Governments. Without a coherent understanding of what human trafficking is perpetrators cannot be prosecuted, and victims will remain invisible in the discussion on rights enjoyment and protections. Without a better understanding of trafficking, identifying victims and giving them the help and support they need to escape exploitation become impossible.

Standing in the way of understanding human trafficking is the fact that organizations tasked with combating it define trafficking differently. The United Nations for example, defines it as, the acquisition of people by improper means such as force, fraud or deception, with the aim of exploiting them.” While the U.S. Department of Homeland Security defines human trafficking as: “the use of force, fraud, or coercion to obtain some type of labor or commercial sex act.” The difference is subtle, but important because to label an infraction a crime, such must be defined by statute. The American DHS only concerns itself with forced labor or sex work while the UN contends any use of force to exploit someone—for any reason—is human trafficking. The differences in definitions alters who is considered a perpetrator or a victim of trafficking. This is only a small sample of how differing Government and institutional arrangements define trafficking, and not how the differing definitions maybe influenced by different institutional goals. An NGO operating in the European Union to end trafficking among migrant communities will engage based on a different definition, while a law enforcement agency tasked with prosecuting perpetrators within the same location may use a different definition. The inconsistency in definition then creates a loophole which is exploited by perpetrators.

In addition, the gray area among refugees, stateless persons, and trafficked victims presents some conceptual challenges and, thus, hinders the provision of protection. In addition to refugees, stateless persons and trafficked victims are entitled to their fundamental human rights.  However, not all stateless persons or trafficked victims are refugees, and a substantial number of persons in both categories move irregularly. Stateless persons are not considered citizens of any State. Stateless persons can be refugees and, in this case, are entitled to the protections delineated in the 1951 Refugee Convention. For those who are not refugees, the 1954 Convention relating to the Status of Stateless Persons regulates the services provided for stateless persons to ensure their full enjoyment of rights. Many stateless individuals risk becoming victims of trafficking. In addition, while trafficked victims maintain nationality even when they are moved across borders, traffickers may confiscate documents proving identity, essentially rendering their victims stateless. This scenario is particularly concerning as states lacking cooperative and efficient measures are unable to verify identities for repatriation. Trafficked victims – depending on their circumstances– who have been moved across international borders also should be protected as refugees until they are returned to their countries of origin.

Adding to the confusion is the wildly inaccurate portrayal of human trafficking in popular media. Such portrayal has so many inaccuracies attached to it that few people have a firm understanding of what trafficking in persons is. Movies and television programs create images of mobsters abducting tourists and young women being kidnapped in vans. Popular images of trafficking again obscure who is a victim. The stereotype is that underage girls are the primary target of trafficking. While it is true that women are in most circumstances at greater risk than men, in specific circumstances, more men than women are targeted for trafficking.

This leads to the second misconception popular culture has created around trafficking about why victims are trafficked in the first place. The misconception being that trafficking is most often done for the purposes of sex work. This is not always the case. In the parts of the European Union, labor trafficking is far more prevalent than sex trafficking. Wrapped up in the misconception about why victims are trafficked is again the question of who is trafficked. People of all genders can be and are labor-or-sex trafficked.

A third misconception about trafficking caused by popular culture is the medium through which people are trafficked. Images of victims being abducted by armed strangers is largely inaccurate. Many people are introduced to trafficking by people they know. Individuals can be victimized by or become victims of their acquaintances, friends, and even domestic partners. Recruiters use social media and the internet to great effect when finding new preys. Another popular trope is victims being taken from one country and forced to work in another. This is in fact not only trafficking, it is also smuggling. It is possible for victims to be both trafficked and smuggled but smuggling and trafficking are two different crimes, and conflating them makes it difficult to respond to either crimes effectively. It is true that international migrant workers are at risk of being trafficked, but many are trafficked after they arrive in a new country. All these confusions and incoherence in definitions make human trafficking difficult to combat.

The evident lack of a coherent definition of trafficking-in-persons between countries, and the fact that the crime is largely perpetrated across borders, in a sense, abets perpetrators. And until countries can coordinate their actions, efforts to stamp out the practice may continue to be elusive. Low reporting numbers from victims, the inability or unwillingness of law enforcement agencies to bring trafficking charges —or worse, the criminalizing of victims, and countless other challenges stand in the way of prosecuting traffickers and bringing justice to victims. For governments, civil society organizations, and society at large, responding to human trafficking with a clear-eyed understanding of the issue will go a long way in crafting and exacting effective countermeasures to stamp it out.

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Amber Malone is a second-year Graduate Student in International Affairs at Johns Hopkins University School of Advanced International Studies (SAIS). She previously worked in Public Policy and Communications with the American Civil Liberties Union of Mississippi.

Nick Carpenter is a first year Graduate Student in International Relations at Johns Hopkins University School of Advanced International Studies (SAIS). His concentration is Strategic Studies, focusing on global security challenges and how to address them.

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Save the date! The CCSDD will restart September 1

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Ciao amici!

We hope you are staying safe and enjoying your summer! We at the CCSDD would like to wish our loyal followers a warm and restful August, and inform you all that we will resume our activities on September 1st. Until then, arrivederci!

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