https://orcid.org/0000-0003-0233-4410
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ABSTRACT
Ungovernance involves circumnavigating disagreement over the nature and purposes of government itself. Ungovernance, despite its name, does not imply a lack of governance and therefore a lack of law, but requires legal techniques to be enabled. While government requires clear stable rules for making laws that ensure that those laws are in turn open, clear, stable and prospective in application, ungovernance is enabled by legal techniques such as: re-iterated constitution-making; institutionalised strategic dissonance; regime assemblage; legalised reset; and legal postponement or deferment (here termed ‘tajility’). This ‘new public law’ retains the same symbiotic relationship to ungovernance that more traditional public law has to governance. Just as the old public law was bound up with the emergence of the modern concept of statehood, the new public law is bound up with a post-post-modern – or performative – ‘fragment statehood’.
Acknowledgements
Christine Bell is Professor of Constitutional Law, and Director of the Political Settlements Research Programme (PSRP) (www.politialsettlements.org). The article has emanated out of ideas produced as part of the programme which is funded by the Foreign, Commonwealth and Development Office (FCDO), to whom thanks are due. The FCDO has had no input into the article and nor are they responsible for any of the contents herein. Thanks also to Andrew Lang and Deval Desai for comments on an earlier version and to participants in the 2019 Global Un-Governance workshop at the University of Edinburgh and the PSRP research team for comments in round tables.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 See further, Deval Desai and Andrew Lang, ‘Introduction; Global Un-governance’ (2020) 11(3) Transnational Legal Theory (this issue).
2 Neil Walker, ‘Our Constitutional Unsettlement’ (2014) 7(1) Public Law 529. On the globally unsettled moment see Thomas Carothers and Oren Samet-Marram, The New Global Marketplace of Political Change (Carnegie Endowment for Peace, 2015).
3 See generally HLA Hart, The Concept of Law (Oxford University Press, 1961).
4 See generally Brian Tamanaha, A General Jurisprudence of Law and Society (Oxford University Press, 2001) (for a review of these challenges and an alternative concept of law to Hart's, that might accommodate them).
5 Martin Loughlin, The Foundations of Public Law (Oxford University Press, 2010) 310.
6 Ibid
7 Christine Bell, On the Law of Peace: Peace Agreements and the New Lex Pacificatoria (Oxford University Press, 2008).
8 Jan Pospisil, ‘The Ungovernance of Peace: Transitional Processes in Contemporary Conflictscapes’ (2020) Transnational Legal Theory (this issue). See further, Christine Bell and Jan Pospisil, ‘Navigating Inclusion in Transitions from Conflict: The Formalised Political Un settlement’ (2017) 29(5) Journal of International Development 576; Jan Posipisil, Peace in Political Unsettlement (Palgrave Macmillan, 2019).
9 Ibid
10 The concept of political settlement is here used in its ordinary sense. For a sense of the controversies over the term and a defence of a definition that has a relatively ordinary meaning relating in the peace process context see further Tim Kelsall, ‘Towards a Universal Political Settlement Concept: A Response to Mushtaq Khan’ (2018) 117(469) African Affairs 656.
11 Oliver Ramsbotham, Transforming Violent Conflict: Radical Disagreement, Dialogue and Survival (Routledge, 2010).
12 Ibid 7. The concept of radical disagreements bears some relationship to WB Gallie's idea of ‘essentially contested concepts’ as ‘concepts the proper use of which inevitably involves endless disputes about their proper uses on the part of their users’. See WB Gallie, ‘Essentially Contested Concepts’ (1956) 56(1) Proceedings of the Aristotelian Society 167, 169.
13 Oliver Ramsbotham, ‘Is There a Theory of Radical Disagreement’ (2013) 1(1) International Journal of Conflict Engagement and Resolution 56, 76.
14 Neil Ferguson, ‘Oliver Ramsbotham: Transforming Violent Conflict: Radical Disagreement, Dialogue and Survival’ (2012) 8(2) Democracy & Security 219.
15 The first full interim agreement alone comes to 190 pages, see, Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (‘Oslo II’) (28 September 1995) and its Annexes, online: www.peaceagreement.org. On these arrangements and ungovernance see further Michelle Burgis-Kathala, ‘States of Failure? Ungovernance and the Porject of State-building in Plaestine under the Oslo Regime’ (2020) Transnational Legal Theory (this issue).
16 Declaration of Principles on Interim Self-Government Arrangements (‘Oslo Accords’) (13 September 1993) online: www.peaceagreements.org/masterdocument/357.
17 Oslo II (n 15).
18 In a sense, of course, it carries forward what has always been an unsettledness as to how Palestinian and Israeli radically different claims to territory and government can be mutually accommodated in a clearer governance relationship, tied to states which each would view as legitimate.
19 Alex de Waal, ‘Sudan's Comprehensive Peace Agreement: Theories of Change’ in Laura James, Sarah Nouwen and Sarath Srinivasan (eds), Making and Breaking Peace in Sudan: Ten Years After the Comprehensive Peace Agreement (British Academy, forthcoming).
20 Ibid
21 Ibid
22 See Vicki Jackson, Constitutional Engagement in a Transnational Era (Oxford University Press, 2013).
23 See further Bell (n 7) Chapter 5, Charmaine Rodrigues, ‘Letting Off Steam: Interim Constitutions as a Safety Valve to the Pressure-cooker of Transitions in Conflict-Affected States?’ (2017) 6(1) Global Constitutionalism 33, Kimana Zulueta-Fülscher, Interim Constitutions in Post-Conflict Settings (International IDEA, 2015).
24 See further Christine Bell and Kimana Zulueta-Fülscher, Sequencing Peace Agreements and Constitutions in the Political Settlement Process International IDEA, 2016).
25 For example, the South African Interim Constitution 1993 which was itself a negotiated ‘peace agreement’ was passed as an amendment of the (apartheid era) 1983 Constitution. Constitution of the Republic of South Africa Act no.200 of 1993, online: www.gov.za/documents/constitution/constitution-republic-south-africa-act-200-1993.
26 See, for example, Yemen's GCC Initiative (2011) establishing an interim transition, which is interestingly constituted by both executive order (Presidential Decree No. 24) and arguably, by UN Security Council (UNSC) Resolution 2014 but leave parts of prior Yemeni Constitution in place. Agreement/Gulf Cooperation Council (GCC) Initiative (23 November 2011) online: www.peaceagreements.org/masterdocument/1401.
27 See for example, Afghanistan 2001; Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions (‘Bonn Agreement’) (5 December 2001) online: www.peaceagreements.org/masterdocument/272. See further, Christine Bell and Robert Forster, ‘Constituting Transitions: Predictable Unpredictability’ in Emanuel HD De Groof and Micha Wiebusch (eds), International Law and Transitional Governance: Critical Perspectives (Routledge, 2020) 33–57.
28 A final constitution – the Constitution of Nepal 2015, was passed in September 2015, but almost immediately an amendment was offered to address Madheshi claims, and this amendment was passed in January 2016. The Constitution of Nepal (20 September 2015), online: www.constituteproject.org/constitution/Nepal_2015.pdf. Fresh amendments have been tabled almost every year since. See further, Constance Johnson, ‘Nepal: New Constitution Amended’ (2016) Global Legal Monitor, online: www.loc.gov/law/foreign-news/article/nepal-new-constitution-amended/.
29 The full name of the Belfast/Good Friday agreement is The Agreement Reached in the Multi-Party Negotiations (10 April 1998) online: www.peaceagreements.org/masterdocument/556; for amended text of Northern Ireland Act 1998 online: www.legislation.gov.uk/ukpga/1998/47/contents.
30 Northern Ireland Act, s16(8). Note that the establishment of government needs majority Unionist and Nationalist consent to the election of a First and Deputy First Minister from each of the main parties (almost certain under current voting patterns to be Unionist and Nationalist, respectively).
31 Robinson v Secretary of State for Northern Ireland [2002] UKHL 32; earlier decision Northern Ireland Court of Appeal 21 March 2002. In a few words, the Court found an interpretive construction that the NI Act was effectively silent on what could happen if the time limit was breached, despite it providing for new elections in this event, based on the need to fulfil the underlying Belfast/Good Friday Agreement, whose clear purpose was to enable government to be established in Northern Ireland.
32 A finding in favour of the application would have meant the elections being called immediately and a possible anti-agreement (DUP) majority, which could have dismantled power-sharing to which they were at that point opposed, instead of the scheduled date of May 2003. The political nature of the decision was noted in the judgement itself at the Northern Ireland Court of Appeal level, by Lord Chief Justice Carswell, In Re Robinson [2002] NI 206, 219. See further, Marie Lynch, ‘Political Adjudication or Statutory Interpretation: Robinson v Secretary of State for Northern Ireland’ (2002) 53 Northern Ireland Legal Quarterly 327.
33 St Andrews Agreement (13 October 2006) online: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/136651/st_andrews_agreement-2.pdf.
34 New Decade, New Approach (January 2020) online: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/856998/2020-01-08_a_new_decade__a_new_approach.pdf.
35 Directives for the negotiation of an agreement with the United Kingdom of Great Britain and Northern Ireland setting out the arrangements for its withdrawal from the European Union, ANNEX to Council decision (EU, Euratom) 2017/ … authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for an agreement setting out the arrangements for its withdrawal from the European Union, 21009/17 BXT 16 ADD 1, Council of the European Union, Brussels (22 May 2017) online: https://ec.europa.eu/commission/publications/negotiating-directives-article-50-negotiations_en.
36 See first Withdrawal Agreement and Political Declaration on the future relationship between the UK and the EU as endorsed by leaders at a special meeting of the European Council on 25 November 2018 (HMG, 25 November 2018) online: www.legislation.gov.uk/ukpga/2018/16/contents/enacted; implemented by the European Union (Withdrawal) Act 2018, online: www.legislation.gov.uk/ukpga/2018/16/contents/enacted. A second revised agreement between the UK and the EU was agreed in March 2019, see 11 March Withdrawal Agreement and Political Declaration laid before Parliament following political agreement, online: www.gov.uk/government/publications/11-march-withdrawal-agreement-and-political-declaration-laid-before-parliament-following-political-agreement. UK legislation was never successfully passed to implement this. Although a European Union (Withdrawal) Act 2019 was passed - commonly referred to as the Cooper–Letwin Act - this was an Act of the Parliament of the United Kingdom that made provisions for extensions to the period defined under Article 50 of the Treaty on European Union related to the United Kingdom's withdrawal from the European Union. After a change of Prime Minister, a third iteration of the Agreement between the EU and UK – the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (HMG, 20 October 2019) online: www.gov.uk/government/publications/new-withdrawal-agreement-and-political-declaration (hereafter Withdrawal Agreement), was agreed between the UK and the EU, and implemented in the UK by the European Union (Withdrawal Agreement) Act 2020, online: www.legislation.gov.uk/ukpga/2020/1/enacted/data.htm. This final EU-UK Withdrawal Agreement, 2020 will be hereafter called ‘the Withdrawal Agreement’, and the European Union (Withdrawal) Act, 2018 as amended by the 2020 European Union (Withdrawal Agreement) Act hereafter will be referred to as the ‘Withdrawal Act’.
37 J Adams and Ed Riley, ‘Rout of the Remainer Martyrs: Turncoat MPs Who Rebelled Against their Parties are BOOTED OUT of the Commons’ Dailymail online (London, 13 December 2019), online: www.dailymail.co.uk/news/article-7789211/Turncoat-MPs-rebelled-against-parties-BOOTED-Commons.html.
38 See for example, Robert A Burgelman and Andrew S Grove, ‘Strategic Dissonance’ (1996) 38(2) California Management Review 8.
39 Ibid
40 The plan has been rejected by Palestinian leadership and many other states.
41 Peace to Prosperity: A Vision to Improve the Lives of Palestinian and Israel People (The White House, January 2020), online: www.whitehouse.gov/peacetoprosperity/, 13.
42 Christine Bell and Kathleen Cavanaugh, ‘‘Constructive Ambiguity’ or Internal Self-Determination? Self-Determination, Group Accommodation, and the Belfast Agreement’ (1998) 22 Fordham International Law Journal 1345.
43 Ibid
44 See further, Colin Murray and Aoife O’Donaghue, ‘Life after Brexit: Operationalising the Belfast/Good Friday Agreement's Principle of Consent’ (2019) Dublin University Law Journal (forthcoming) author's last version online: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3486960).
45 Brendan Heading, ‘Assorted Thoughts on the Realities of Border Polling and Reunification’ Slugger O'Toole (1 February 2020) online: https://sluggerotoole.com/2020/02/01/assorted-thoughts-on-the-realities-of-border-polling-and-reunification/?fbclid=IwAR1JaADd2WK20-62W8PZa_GiTY8D32Ecc28V4gHaOeQNMDNoFzhX7ghUoq8.
46 Protocol on Ireland/Northern Ireland, EU-UK Withdrawal Agreement, Protocol on Ireland/Northern Ireland, online: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12020W/TXT#d1e32-102-1,287.
47 Ibid
48 Article 164, Withdrawal Agreement (n 36).
49 The term ‘constructive ambiguity’ is often attributed to Henry Kissenger, and has been noted as a technique used in international legal drafting to bridge disagreement by a large number of scholars and observers, see for example, Michael Byers, ‘Agreeing to Disagree: Security Council Resolution 1441 and Intentional Ambiguity’ (2004) 10 Global Governance 165.
50 Christine Bell, ‘Ius Post Bellum and Lex Pacificatoria: What's in a name?’ in Carsten Stahn, Jennifer S Easterday and Jens Iverson (eds), Ius Post Bellum: Mapping the Normative Foundations (Oxford University Press, 2014) 181–206, 190–2.
51 Ibid
52 Ibid
53 Bell (n 7).
54 Ibid
55 Agreement (n 29), Section on Human Rights, Rights, Safeguards and Equality of Opportunity.
56 Ibid, Section on United Kingdom Legislation.
57 Nationalist/ Unionist and UK government disagreement as to what ‘particular circumstances of Northern Ireland’ was to mean, plagued and prevented implementation of this provision’, see further Colin Harvey and Alex Schwartz, ‘Designing a Bill of Rights for Northern Ireland’ (2009) 62(1) Northern Ireland Legal Quarterly 181.
58 For a detailed account of these very summarised broad positions and how the political party positions of nationalist and unionist parties to a bill of rights have changed over time, see, Anne Smith, Monica McWilliams and Pryamvada Parnell, Advancing a Bill of Rights For Northern Ireland (Belfast: Transitional Justice Institution, University of Ulster, 2014), online: www.ulster.ac.uk/__data/assets/pdf_file/0005/58271/Advancing_a_BOR_NI.pdf.
59 Consecutive NIHRC's produced draft bills of rights, after copious consultation see for example Northern Ireland Human Rights Commission, Making a Bill of Rights for Northern Ireland (Belfast: Northern Ireland Human Rights Commission, September 2001); and Advice to the Secretary of State for Northern Ireland: A Bill of Rights for Northern Ireland (Northern Ireland Human Rights Commission, 10 December 2008) online: https://www.nihrc.org/publication/detail/advice-to-the-secretary-of-state-for-northern-ireland. The government further consulted on these, accepted and rejected aspects, and then consulted further on their result, leading to ongoing repetitive consultation, less designed to improve proposals, and more designed to try to build delay and brokerage (although little went on).
60 New Decade, New Approach (n 34) paras 5.26–5.29.
61 Withdrawal Act (n 36) Sections 1–5.
62 Ibid
63 Ibid 5.26
64 Ibid. The terminology of ‘transition period’ and ‘implementation period’, itself speak to the different presentational issues of the UK and EU. The UK prefer the term ‘implementation’ because they wish to emphasise that Brexit has had a form of completion with the exit date that marks the start of the ‘transition’, and therefore want to talk of the initial agreement being ‘implemented’, while the EU view this agreement as only transitional to an agreement that would re-institutionalise the trading relationship.
65 Withdrawal Act (n 36) Articles 1–9.
66 For the High Court of Justiciary, there are exceptions pertaining mostly to devolution issues.
67 Withdrawal Act (n 36) Article 6.
68 Significantly these provisions modify the previous draft Act formulation that post implementation courts were to pay ‘due regard’ to EC decisions prior to implementation – a phrase with legal meaning which would largely have left in place modes of application of EC law that were in place.
69 R (Factortame Ltd) v Secretary of State for Transport [1990] UKHL 7.
70 See for example, Hans Kelsen, General Theory of Law and State (Russell & Russell, Anders Wedberg trans 1961) 117–8, 368–9.
71 St Andrews Agreement (n 33).
72 Hillsborough Castle Agreement (5 February 2010) online: www.peaceagreements.org/masterdocument/764.
73 Haass Report – Proposed Agreement (31 December 2013) online: www.northernireland.gov.uk/publications/haass-report-proposed-agreement.
74 Stormont House Agreement (23 December 2014) online: www.peaceagreements.org/masterdocument/903.
75 A Fresh Start: The Stormont Agreement and Implementation Plan (17 November 2015) online: www.peaceagreements.org/masterdocument/1435.
76 New Decade, New Approach (n 34).
77 See Pa-x peace agreement database for a full list of agreements, online: https://www.peaceagreements.org/search?SearchForm%5Bregion%5D=&SearchForm%5Bcountry_entity%5D=104&SearchForm%5Bname%5D=&SearchForm%5Bcategory_mode%5D=any&SearchForm%5Bagreement_text%5D=&SearchForm%5Border%5D=date_signed&s=Search+Database.
78 Withdrawal Agreement (n 36) Article 132.
79 Protocol on Ireland/Northern Ireland (n 47) Article 18.
80 Cf Neil Walker (n 2).
81 See further, The Smith Commission, Report of the Smith Commission for Further Devolution of Powers to the Scottish Parliament (27 November 2014) online: https://webarchive.nationalarchives.gov.uk/20151202171029/http://www.smith-commission.scot/wp-content/uploads/2014/11/The_Smith_Commission_Report-1.pdf.
82 Articles 1–2, Scotland Act 2016, online: www.legislation.gov.uk/ukpga/2016/11/contents/enacted.
83 A Brexit-related decision of the UK court, found that these provisions were not enforceable legally but only politically, see R (Miller) v Secretary of State for Exiting the European Union; In re McCord; In re Agnew [2017] UKSC 5, [2018] AC 61.
84 De Waal (n 19).
85 See Word Hippo ‘What does تأجيل (tajil) mean in Arabic?’, online: https://www.wordhippo.com/what-is/the-meaning-of/arabic-word-7e06d6132fb1aa6a2173a5e139d3f45d7ab8d8ae.html Cf also Pospisil (n 8).
86 De Waal (n 19).
87 See eg, In Re Buick's Application [2018] NICA 26 where the court found that a civil servant making a decision designated in the legislation to be for a Minister was unlawful, even though it was only the final sign-off of the decision that needed implemented. However, during the period in which the NI institutions had collapsed there was dubious legal authority for many key decisions.
88 The UK government eventually moved to provide legislative grounds for civil servants to make decisions in section 3, Northern Ireland (Executive Formation and Exercise of Functions) Act 2018, online: https://www.legislation.gov.uk/ukpga/2018/28/contents. While they did not make this explicitly retroactive, the legislation provided that decisions could be essentially ‘re-taken’ under the legislation, providing a form of de facto retroactivity (Ibid section 3(6)).
89 Withdrawal Agreement, (n 36) Article 132.
90 Withdrawal Act (n 36) Article 15A, which somewhat ambiguously (in terms of what it requires to achieve an extension), provides that ‘A Minister of the Crown may not agree in the Joint Committee to an extension of the implementation period.’
91 Withdrawal Agreement (n 36) Article 18.
92 Ibid Article 60
93 Withdrawal Agreement, Protocol on Ireland/Northern Ireland (n 47).
94 Cass R Sunstein, ‘Incompletely Theorized Agreements Commentary’ (1994) 108 Harvard Law Review 1733; Christopher McCrudden, ‘State Architecture: Subsidiarity, Devolution, Federalism and Independence’ in Mark Elliott, and David Feldman (eds), The Cambridge Companion to Public Law (Cambridge University Press, 2015) 193–214.
95 See Fionnuala Ní Aoláin and Oren Gross, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge University Press, 2006).
96 See for examples, United Nations, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission Finalized by Martti Koskenniemi, International Law Commission (13 April 2006) UN Doc A/CN.4/L.682.
97 See for example the UK's Human Right Act 1998, which provided that it would mostly come into force in 2000.
98 See detailed discussion in introduction, also: Hart (n 3); Tamanaha (n 4).
99 I term it ‘post-post modern’, because it is enabled not just by post-modernity, but by reactions to it, which seek to reinforce traditional concepts of the state, which are curiously enabled by the ways in which post-modernity reifies the relativity of all positions and truths. So, within the fragment state the concept of the ‘liberal state’ can also exist but becomes yet another fragment, often figuratively but also literally in central government projects that do not reach beyond capital cities or even zones of them.
100 See, Neil Walker, Intimations of Global Law (Cambridge University Press, 2014).