Articles for category: Focus

The European Convention of Human Rights‹ Colonial Clause and the End of Empire

In this post, I would like to shed light on an important, yet generally overlooked aspect of the European Convention of Human Rights, namely that it was drafted at a time when many of the member states of the Council of Europe were still important colonial powers. While European empires in Asia were in decline and the Netherlands was in the process of withdrawing from Indonesia, this was not the case in what was then called New Guinea, Surinam or the Antilles. Colonial empires in Africa, for their part, were still well established and the question of the territorial application of the Convention was hotly debated in the drafting process. What were the implications of this link between human rights and empire?

26. Januar 2022

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Police Action or War?

The conflict in Indonesia in 1945–1949 was not a police action against insurgents in the context of a colonial territory in which domestic law alone was applicable; it was an international armed conflict in the context of independence in which international law should have played its role. The crimes committed during the conflict from both sides were war crimes and crimes against humanity.

26. Januar 2022

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Aggression, War Crimes, and the Indonesian Revolution

The specter of the Indonesian Revolution is still haunting our understanding of Dutch imperial violence. In this blog post, I want to highlight two central issues regarding the conflict’s legal history – one involving the alleged non-application of the laws of war to the conflict which has been a mainstay argument in Dutch official narratives, and the other regarding the ways in which we delineate today our legal-moral reasoning with respect to Dutch transgression.

25. Januar 2022

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Decolonization and Human Rights: The Dutch Case

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Human rights and decolonization have a complicated relationship. From their inception in the mid-20th century as normative features of the nation-state, human rights co-existed with imperial colonial systems. As aspirational values molded on the Western philosophical tradition, human rights also served as empowering tools in the moment of decolonization while simultaneously hampering claims to national independence. This is why, in the engagement with the ongoing legacies of colonialism, we have embarked on this symposium to examine human rights both as a language of critique and as a constitutive part of the imperial legacy.

24. Januar 2022

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Restoration without the Constitution

After what is now almost a two-decade long rule by the governing party, there are strong indications that a strong reshuffling in Turkish politics is in the works. Support for President Erdogan and his party is declining. I argue, firstly, that it is a combination of factors that has led to this moment of changing fortunes in Turkish politics – a combination that sheds light on what tactics may successfully be employed by opposition forces who wish to put an end to autocracies. Secondly, I claim that constitutional restoration in Turkey does not require formal constitutional change.

11. Januar 2022

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Beware of the Bulldozer

The case of Russia teaches us how dangerous extra-constitutional constitution making can be – and that it should always be just a last resort. No substantive institutional changes should be made outside of the constitutional bounds. Otherwise, there will always be the danger that breaking the rule of law will continue even after constitutional change has taken place. This is precisely what Russian intellectuals and jurists, who supported Yeltsin in 1993, learned under the rule of Vladimir Putin. We should try to avoid repeating their mistakes.   

7. Januar 2022

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Restoring the Validity of Law in Democratic Societies

The questions posed by Professors Andrew Arato and András Sajó in their open letter Restoring Constitutionalism are pressing and of utmost public importance. Many of the issues and controversies raised in the letter arise after “democratic backsliding has taken place” and when the constitution already includes “entrenched authoritarian enclaves”. Taking this context into consideration, I will examine a more basic issue, namely the validity of law in a democratic society.

4. Januar 2022

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A Matter of Pragmatism rather than Principle

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Taking into consideration that the backsliding of Turkish democracy during the last ten to fifteen years happened in a piecemeal and often erratic way, only partially based on constitutional amendments, the reverse process should also be possible by gradual legal and, eventually, constitutional changes. Political pragmatism, based on a clear commitment to basic democratic values and societal reconciliation, might be more important for the sustainable recovery of Turkish democracy than a radical constitutional restart.

30. Dezember 2021

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