E UROPEAN S OCIETY OF I NTERNATIONAL L AW Conference Paper Series Conference Paper No. 12/2015 2015 ESIL Research Forum, Florence, 14-15 May 2015 International Law and the Legitimacy of Interim Governments Matthew Saul Editors: Christina Binder (University of Vienna) Photini Pazartzis (National and Kapodistrian University of Athens) Mario Prost (Keele University) Electronic copy available at: http://ssrn.com/abstract=2715703 ESIL CONFERENCE PAPER SERIES [VOL. 6 NO 4] International Law and the Legitimacy of Interim Governments Matthew Saul Abstract: This paper addresses the role of international law in political communication in the practice of interim governance. It seeks to develop a clearer understanding of the value of membership of an international human rights treaty regime for assessments of the legitimacy of interim governance arrangements. The paper has a particular focus on the case of Afghanistan. It has three main parts. The first part considers the way in which assessments of the legitimacy of interim governments are structured (it argues for legitimacy of promises to be added to the established two part schema of origin and exercise). The second part examines key considerations relevant for the extent to which political communication rights exert constraint on the discretion of interim governments. The third part examines three modalities by which the strength of political communication rights as a source of constraint might be strengthened: UN SC resolution, peace agreement, and aid agreement. A key argument is that membership of an international human rights regime with political communication rights is a reason to take more seriously the promises of interim governments to pursue democracy, as it provides a platform for international scrutiny of the efforts that are made to move towards democratic governance. However, it is further contended that in practice the law appears to be too easily overlooked by both interim governments and the international actors that keep them in authority. Keywords: International Law, Interim Government, Legitimacy, Self-Determination, Democracy, Political Communication, Freedom of Expression, Afghanistan. Author Information: Post-Doctoral Research Fellow, MultiRights/PluriCourts, Department of Public and International Law, University of Oslo. This is a working paper. All comments are very welcome (m.w.saul@jus.uio.no). Thanks to all those who participated when an earlier version was presented at the European Society of International Law Research Forum, EUI, Florence, 14-15 May 2015. [1] Electronic copy available at: http://ssrn.com/abstract=2715703 ESIL CONFERENCE PAPER SERIES [VOL. 6 NO 4] Table of Contents 1. Introduction ......................................................................................................... 2 2. Assessing the Legitimacy of Interim Regimes: Origin, Exercise, and Promises of Exercise .............................................................................................. 5 A. Origin .................................................................................................................. 5 B. Exercise ............................................................................................................... 6 C. Promises of Origin and Exercise ........................................................................ 6 3. The Nature and Compliance Pull of International Human Rights on Political Communication....................................................................................... 8 A. The Nature of Provisions .................................................................................... 8 B. Delegation ......................................................................................................... 10 C. Domestic or International Mobilization?.......................................................... 11 D. Summing Up ..................................................................................................... 12 4.Practice ................................................................................................................ 12 5. Modalities for Enhancing the Role of the Law: Obligations for International Actors to Monitor and Enforce? ............................................... 14 A. SC Resolution.................................................................................................... 15 B. Peace Agreements ............................................................................................. 16 C. Aid Agreements ................................................................................................ 16 6. Conclusion .......................................................................................................... 18 1. Introduction The identity of an interim government and its capacity to govern can be greatly influenced by international actors (third states and international organisations). Key ways in which this influence is exerted include a mixture of direct and indirect involvement in negotiations, legal recognition of governmental status, and provision of military, technical, administrative, and financial, resources.1 Recent periods of governance in Haiti, Liberia, Sierra Leone, Afghanistan, See M. Saul, ‘International Law and the Identification of an Interim Government to Lead Post-Conflict Reconstruction’, in M. Saul and J.A. Sweeney (eds) International Law and Post-Conflict Reconstruction Policy (Routledge 2015) at 23 – 24. 1 [2] Electronic copy available at: http://ssrn.com/abstract=2715703 ESIL CONFERENCE PAPER SERIES [VOL. 6 NO 4] and Iraq,2 provide prominent examples of the sort of internationally dependent interim governance that is the main focus of this paper.3 Interim governance that is dependent on international actors raises major legitimacy questions, especially from the perspective of the principle of self-determination.4 This is because the establishment and continuation of authority based on international involvement interrupts the connection between the population and the government.5 It is also because the decisions of interim governments can have significant implications for how post-conflict reconstruction (and with it the future of the state and its population) unfolds.6 The contravention of the principle of self-determination might help to explain why international actors do not justify support for an interim regime only on the belief that it will provide a basis for the absence of conflict. Instead, the justification tends also to include democracy.7 The prominence of democracy in the justification for international support for interim governments is significant for a number of related reasons. In particular, it is a means to depict the international engagement as geared towards the eventual advancement rather than denial of selfdetermination.8 In addition, it generates an onus for interim governments and the international actors that support them, to encourage and engage in governmental conduct and policy making that is facilitative of a move towards democratic government. However, translating this onus into practice is challenging. This is for various reasons connected to the tension between what might be deemed legitimate from a self-determination perspective and what will generate effective outcomes with regard to the process of post-conflict reconstruction.9 In particular, what will be viable with regard to the set up and operation of an On Haiti, see M. Saul, ‘From Haiti to Somalia: The Assistance Model and the Paradox of State Reconstruction in International Law’, (2009) 11 International Community Law Review 119; on Liberia, see L. Andersen, ‘Outsiders Inside the State. Post Conflict Liberia between Trusteeship and Partnership’, (2010) 4 Journal of Intervention and State Building 129; on Iraq see R.Wolfrum, ‘Iraq – from Belligerent Occupation to Iraqi Exercise of Sovereignty: Foreign Power Versus International Community Interference’, (2005) 9 Max Planck Yearbook of United Nations Law 1. 3 On different forms of interim government see Y. Shain and J. Linz, ‘Introduction’, in Y. Shain and J. Linz (eds) Between States – Interim Governments and Democratic Transitions, (Cambridge University Press, 1995) at 7. 4 See Saul Popular Governance of Post-Conflict Reconstruction: The Role of International Law (CUP 2014) 33 – 40; see further GH Fox, Humanitarian Occupation (CUP 2008) 307–8, arguing that on the basis of its collective identity, the role of the UN Security Council in assisting states following conflict should be assessed by different standards (e.g. past practice and level of international support) than those applicable to states acting alone (e.g. respect for self-determination). 5 Saul, ibid., Chapter 2. 6 Saul, ibid., Chapter 1; J. Strasheim and H. Fjelde, 'Pre-Designing Democracy: Institutional Design of Interim Governments and Democratization in 15 Post-Conflict Societies', Democratization (2012) at 335; Shain and Linz n 3 at 7. 7 Shain and Linz n 3 at 8. 8 Stromseth, Wippman, and Brooks, Can Might Make Rights? (CUP 2006) at 19; See Macklem, ‘Militant Democracy, Legal Pluralism, and the Paradox of Self-Determination’, (2006) 4 International Journal of Constitutional Law 488 at 499–500; De Brabandere, Post-Conflict Administrations in International Law, (Martinus Nijhoff 2009) 72. 9 See Saul n 4 at 32 - 47; On the timing and sequencing of reconstruction initiatives, see Ni Aolain, Haynes, and Cahn, On the Frontlines: Gender, War, and the Post-Conflict Process (OUP 2011) pp. 86–7; on best practice with regard to the development of democracy, compare Paris, At War’s End: Building Peace After Civil Conflict (CUP 2004) p. 188, with R. Ponzio, Democratic Peacebuilding: Aiding Afghanistan and other Fragile States (OUP 2011) pp. 247–8. 2 [3] ESIL CONFERENCE PAPER SERIES [VOL. 6 NO 4] interim government will be heavily dependent on the circumstances, and might lead international actors to provide support for elites that there is little reason to expect will have a genuine commitment to democracy.10 The noted challenges might help to explain why the question of what international actors can do to influence the creation of interim governments in a way that facilitates a move to democracy remains understudied.11 One recent study, by Strasheim and Fjelde, has nonetheless highlighted that it could be useful for international actors to encourage the establishment of domestic constraints (such as ombudspersons) and decentralization as part of the establishment of interim governance. This is because these factors seem to correlate with an increase in the prospects for democracy (based on the study of 15 instances of interim governance underpinned by UN peacekeeping up to 2006). However, the study also highlights the problem that the elites which constitute interim governments are often not held to their promises to abide by domestic constraints and operate in a decentralized way.12 This brings into focus the need for more attention to be given to external sources of constraint on interim governments. One possibility that Strasheim and Fjelde do not address is membership of an international human rights regime. The inclusion of rights that are especially central to democracy, particularly political communication rights (freedoms of expression, association, and assembly),makes international human rights instruments, such as the ICCPR, a potentially significant factor when contemplating the prospects of a period of interim governance leading to democratic governance. However, political communication rights were not designed with post-conflict settings in mind. In addition, states have generally been reluctant to invoke the human rights obligations of other states (drawing on the erga omnes partes nature of the obligations created by human rights treaties). This can make it difficult to determine what weight should be placed on the existence of human rights treaty obligations when assessing the strength of a promise to govern in a manner that is conducive to a move towards democratic governance. This paper addresses the role of international law on political communication in the practice of interim governance. It seeks to develop a clearer understanding of the value that should be placed on membership of an international human rights treaty regime for assessments of the legitimacy of interim governance arrangements. The paper proceeds, in Section 2,with an overview of the different ways in which assessments of the legitimacy of interim governments can be structured. This part argues for a third category, promises, to be added to the established two part schema: legitimacy of origin and legitimacy of exercise. Section 3 turns to the international human rights law on political communication and the potential for it to operate as a constraint on the discretion of an interim government. Particular attention is drawn to the importance of international supporters of interim governments operating as monitors and enforcers of the law. Section 4 examines how political communication rights have been implemented in practice, drawing on examples from the period of dependent governance in Afghanistan. This leads to the fifth section, which considers three modalities by which the strength of international human rights law as a constraint on interim governments might be enhanced: peace agreements; UN Security Council resolutions; aid agreements. A key argument is that membership of an international human rights regime with political communication rights is a reason to take more seriously the promises of interim governments to 10 Strasheim and Fjelde n 6 at 338 and 339. Strasheim and Fjelde n 6 at 336; also Shain and Linz n 3 at 4. 12 Strasheim and Fjelde n 6 at 351. 11 [4] ESIL CONFERENCE PAPER SERIES [VOL. 6 NO 4] pursue democracy, as it provides a platform for international scrutiny of the efforts made to move towards democratic governance. However, it is further contended that in practice, the law appears to be too easily overlooked by both interim governments and the international actors that keep them in authority. This leads to the suggestion that for international human rights law to make a significant difference to how promises to pursue democracy are viewed, international actors should consider binding themselves to monitor and enforce the law through incorporation into a self-enforcing agreement. 2. Assessing the Legitimacy of Interim Regimes: Origin, Exercise, and Promises of Exercise A prominent schema employed for assessments of whether or not external support for a government can be justified is found in the concept of legitimacy. Legitimacy is discussed in normative terms as an external evaluation of a regime’s right to rule.13 It is also treated as a sociological question of whether the regime is perceived to have the right to rule.14 A useful middle ground, developed by Beetham, is to undertake a normative assessment based on the values that a given society has identified as important. For Beetham, ‘[a] given power relationship is not legitimate because people believe in its legitimacy, but because it can be justified in terms of their beliefs.’15 Two prominent values that are associated with the involvement of international actors in the creation and empowerment of interim governments following conflict are peace and democracy. As criteria for determining which domestic actors to support as the interim government and on what terms in the aftermath of these conflicts, these values can struggle. This is seen through applying them in relation two structural concepts that can be used for assessing the justifiability of supporting a regime as a general matter: legitimacy of origin, and legitimacy of exercise. This analysis leads to the suggestion of a third structural concept, the legitimacy of promises. A. Origin The traditional focus for assessments of whether external support for a particular domestic regime is justified has been to look at the legitimacy of the origin of the regime, to find a basis in the will of the people.16 This approach is logical from a perspective that identifies the self-determination of the people as the basis for the authority of the state that the government is entrusted to govern. But there are instances where there is no regime with clear legitimacy of origin credentials. This can occur after conflict, where the former government has been ousted and there is a practical need for an interim government to be established without a popular vote. In addition, when a government is dependent on external actors to remain in authority, the legitimacy of origin assessment is undermined. This is because it is less reasonable to assume that the population wishes for the government to continue in authority. This is a reason to consider that in some 13 A Buchanan, The Legitimacy of International Law, in S Besson & J Tasioulas (eds.)The Philosophy Of International Law (2009, OUP) at p 80 14 Buchanan, ibid., at 79. 15 D.Beetham, The Legitimation Of Power (Palgrave, 1991) at 10; see also B. Çali and A. Koch, N. Bruch ‘The Legitimacy of Human Rights Courts: A Grounded Interpretivist Analysis of the European Court of Human Rights’, (2013) 35 (4)Human Rights Quarterly955 at 958. 16 See d’Aspremont, J., and De Brabandere, E "The Complementary Faces Of Legitimacy In International Law: The Legitimacy Of Origin And The Legitimacy Of Exercise." (2011) Fordham International Law Journal at 196. [5] ESIL CONFERENCE PAPER SERIES [VOL. 6 NO 4] instances a period of interim governance does not end with free elections,17 but continues until a government is able to exercise authority without a substantial external military presence in place. B. Exercise The importance of not placing all the emphasis on the occurrence of elections, as an end point for particular attention to the nature of governance in a state following conflict, is supported by the lists of examples of more stable states in which elections have failed to serve as an adequate proxy for subsequent democratic governance.18 This practice underpins the call for an increased focus on the legitimacy of exercise as a basis for determining international support for an established regime. The legitimacy of exercise asks whether the government is operating in a manner that conforms to certain criteria. Traditionally, effective control of territory has been employed as a criterion,19 with control being one possible indicator that a regime has popular support. This approach is problematic for a number of reasons, including the scope for control to be secured through a threat of violence. Instead, recent calls have been for greater attention to be given to a substantive concept of democracy.20 The contours of a substantive concept of democracy are open to debate, but one useful marker is international human rights law, especially political communication rights.21 Political communication rights, particularly in the light of the practice of international human rights bodies that interpret and apply them, provide standards that can be used for assessing the exercise of authority by an established regime, determining whether they are deserving of continued support.22 The relevance of a focus on governmental exercise is open to being queried in the context of creating and empowering interim governments. In this context, there appears to be a need for a third, new structural concept through which to understand practice: the legitimacy of promises. C. Promises of Origin and Exercise When attempting to justify international involvement in the creation and empowerment of an interim government, recourse might be had to considerations from the past. For instance, past election victory or past performance of the individuals concerned. Yet, practice demonstrates that these can be weak indicators. Consider the Haiti experience with Aristide across two periods.23 This might help to explain why, in practice, the emphasis from international actors and the interim governments they support has been on promises to deliver peace and democracy. Consider, for instance, that with regard to events in Libya, ‘at the time the British Government recognized the NTC, it was by no means clear that it had the reach of effective territorial control 17 Shain and Linz n 3 at 10. See d’Aspremont and De Brabandere n 16 at 212 – 213. 19 d’Aspremont and De Brabandere, Ibid., at 197. 20 See J. d’Aspremont, ‘Legitimacy of Governments in the Age of Democracy’, 38 (2006) New York Journal of International Law and Politics 877. 21 See d’Aspremont and De Brabandere n 16 at 207; also Strasheim and Fjelde n 6 at 344. 22 See d’Aspremont n 20. 23 See Saul n 2. 18 [6] ESIL CONFERENCE PAPER SERIES [VOL. 6 NO 4] which would have entitled it to be so regarded. It was its democratic aspirations which motivated the British Government, not the totality of its military success.'24 It is difficult to argue against a commitment to peace and democracy as considerations that should be taken into account when international actors determine the nature of their involvement in the creation and empowerment of an interim government. Yet promises are readily forgotten. This is particularly an issue with democracy, given that there is considerable debate about how democracy relates to the development of a sustainable peace during post-conflict reconstruction.25 This generates a risk that activity associated with democracy as a general matter will too readily be seen as an expendable luxury.26 Still, this risk is likely to be most pressing with aspects connected to the legitimacy of exercise than with origin. This is because the preparation and holding of elections provide a clear focal point for domestic and external attention. In contrast, the legitimacy of exercise is concerned with a more diffuse, more readily overlooked body of practice. The high levels of corruption that can often surround interim governments further add to the risk of bad faith decision-making.27 Accordingly, if the promise of democracy is to be taken seriously as part of the justifications for international support for interim regimes, as more than just a promise to hold elections, it seems useful to give attention to the potential for a list of indicators that can be used to assess the prospects of the promise being pursued in good faith. One possible source of indicators can be found in political science that examines what sort of infrastructure contributes to the provision of substantive democracy. Studying 15 cases of interim regimes operating with the backing of UN peacekeeping up to 2006, Strasheim and Fjelde have recently argued that improvements in the provision of political rights can be associated with regimes that operate with constraints on the executive, in the form of ombudspersons; and through modes of decentralization.28 These are possible factors that might be included when determining the strength of a promise to pursue democracy and its value for assessments of the legitimacy of the regime. However, this study also identified a major problem in the form of the gap between the written commitments and actual implementation. The authors suggest that ‘implementation often fails since weak capacity of interim institutions does not hold elites to their promises.’29 The focus of these authors on interim institutions leads one to wonder about the commitment of international actors to hold the domestic elite to their promises. But it also draws attention to the need for more interest to be taken in the significance of external constraints that might be able to help ensure that actors strive to deliver on the promise of democracy.30 The rest of this paper turns attention to the value of membership of an international human rights regime as a basis to view the promise to pursue democracy as strengthened. See Warbrick ‘British Policy and the National Transitional Council Of Libya’ (2012) 61 International and Comparative Law Quarterly, 247 at 263. 25 See sources cited at 9. 26 See A Orford, Responsibility to Protect (CUP )p. 137, pp. 190–2. 27 See Cheng, C. S., and D. Zaum (eds.),Corruption and Post-Conflict Peacebuilding: Selling the Peace (Routledge, 2012); Collier, P., ‘The Political Economy of Fragile States and Implications for European Development Policy’, paper presented at the conference on the Challenges of Fragility to Development Policy, organised by the European Report on Development in Barcelona, Spain, 7–8 May 2009 28 The level of inclusiveness was seen as potentially a negative element. 29 Strasheim and Fjelde n 6 at 351. 30 See also R Dworkin, ‘A New Philosophy of International Law’, (2013) 41 Philosophy and Public Affairs 2 at 17. 24 [7] ESIL CONFERENCE PAPER SERIES [VOL. 6 NO 4] 3. The Nature and Compliance Pull of International Human Rights on Political Communication Membership of international human rights regimes has been argued to have appeal for fledgling democratic governments as a means ‘to ‘‘lock in’’ and consolidate democratic institutions, thereby enhancing their credibility and stability vis-à-vis nondemocratic political threats.’31 However, the effectiveness of international human rights law as a means of advancing human rights in practice has been queried. A key reason for this is that ‘in stark contrast to agreements based on mutual gain and state-to-state reciprocity, international human rights agreements are essentially not self-enforcing.’32 This underpins the body of literature that theorizes and examines the practice of compliance with international human rights law. From this literature, it is possible to identify the nature of particular provisions, the degree to which enforcement has been delegated, mobilization of actors to call for compliance with the law, as important considerations that help to explain compliance. The rest of this section addresses these aspects in relation to the context of an interim government dependent on international actors. A. The Nature of Provisions Precision in the nature of the law has been argued to influence the level of compliance.33 Precision is about the degree of ambiguity in the conduct that is required, authorized, or proscribed by a rule.34 High precision is found in determinate rules with only limited scope for interpretive discretion, lower precision is found in standards that might only be meaningful with reference to a specific context.35 Different theories help to explain why precision is significant, but they are linked by the idea that greater clarity generates normative force.36 An idea of where political communication rights figure on the spectrum of precision can be gauged from thinking about the right to freedom of expression as expressed in Article 19 of the ICCPR: [e]veryone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. The provision takes a legal form and makes clear that everyone within a contracting state has the right. The practice of the UN Human Rights Committee (HRC) has helped to elucidate the type of activity that is covered.37 The HRC has also helped to elucidate the negative and the positive A Moravcsik, ‘The Origin of Human Rights Regimes: Democratic Delegation in Postwar Europe’, (2000) International Organisation54: 217 at 220. 32 Simmons, B, Mobilizing for Human Rights: International Law in Domestic Politics (2009, Cambridge University Press) 114. 33 See T Franck, The Power of Legitimacy Among Nations (OUP 1990). 34 Abbott, K. W., A Moravcsik, A-M Slaughter and D. Snidal, "The Concept of Legalization." (2000) International Organization 401 – 419, 401. 35 Abbott et al Ibid 415. 36 Abbott et al Ibid 413. 37 See K. Boyle, ’Thought, Expression, Association, and Assembly’, in D. Moeckli, S. Shah, and S. Sivakumaran (eds.) International Human Rights Law (OUP, 2010) 257 31 [8] ESIL CONFERENCE PAPER SERIES [VOL. 6 NO 4] obligations associated with the right, through, for example, its recent general comment. 38 In relation to the media, the HRC has indicated that ‘[s]tates parties should ensure that public broadcasting services operate in an independent manner. States parties should guarantee their independence and editorial freedom. They should provide funding in a manner that does not undermine their independence.’39 With regard to freedom of information, the HRC indicated that the provision ‘embraces a right of access to information held by public bodies. Such information includes records held by a public body, regardless of the form in which the information is stored, its source and the date of production.’40 It has also noted that ‘[t]o give effect to the right of access to information, States parties should proactively put in the public domain Government information of public interest.’41When addressing the scope for international actors monitoring and calling for action in relation to the implementation of political communication rights by postconflict interim governments, it is important that these rights are read in the light of the limitation clause. The right to freedom of expression, (as with the freedoms of association and assembly), includes a limitation clause (para. 3), which permits certain restrictions ‘such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.’ In its interpretative practice, the HRC has specified that: ‘When a State party invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.’42 This requires an evaluation of the different interests at stake: the need (e.g., public order), the importance of the right, and the extent of the encroachment, in the context of a democratic society.43 Accordingly, the construction of the limitation clauses does not afford complete discretion to actors with decision-making authority. Still, the operation of the limitation clauses and what sort of activity they will cover is inherently linked to the circumstances in which a restriction is introduced. The limitation clause places political communication rights at the more "standard-like" end of the spectrum on precision, as specified by Abbott and colleagues: The more ‘more standard-like’ a prescription, the more a community makes this determination ex post, in relation to specific sets of facts; such decisions are usually entrusted to courts. Standards allow courts to take into account equitable factors relating to particular actors or situations, albeit at the sacrifice of some ex ante clarity.44 This is relevant for the post-conflict setting. It allows for assessments of compliance with the law to play out differently across post-conflict contexts.45 It can also facilitate the norms being treated 38 HRC, General Comment 34 (12 September 2011), UN Doc. CCPR/C/GC/34. Ibid., para. 16. 40 Ibid., para. 18. 41 Ibid., para. 19. 42 Ibid., para 35. 43 Boyle n 37at 259; F. Megret, ’The Nature of Human Rights Obligations’, in D. Moeckli, S. Shah, and S. Sivakumaran (eds.) International Human Rights Law (OUP, 2010) 124 at 142. 44 Abbott et al, n 34 at 413. 45 C Bell, ‘Of Jus post bellum and Lex Pacificatoria’ in C Stahn, JS Easterday, and J Iverson (eds) Jus Post Bellum (OUP 2014) 181, 198, 39 [9] ESIL CONFERENCE PAPER SERIES [VOL. 6 NO 4] as standards that are to be strived towards rather than complied with in the absolute from the outset.46 B. Delegation The international human rights system includes bodies, such as the HRC, that can monitor the human rights practice of interim governments. Such monitoring can highlight and thereby potentially help to deter bad faith approaches to the implementation of limitation clauses. There are, though, significant limits in the powers and capacity of monitoring bodies. Consider the following in relation to the HRC. Although authoritative,47 the work of the HRC is non-binding on states parties.48 The jurisdiction of the HRC is based on a reporting cycle or on individual applications (depending on ratification of the first optional protocol).49 There is a lack of insistent follow up when reports are not submitted.50 And, with regard to individual applications, there can be long delays from the point at which an application is made and the view is adopted. These features of the system have consequences. They entail that large amounts of practice go unmonitored. They also facilitate contestation and divergence by states from the assessments and interpretations offered by the HRC. The limits of the international monitoring system can make it important for international actors – third states and international organisations, such as the UN – to take a particular interest in the treatment of human rights by interim governments. The legal basis for so doing is found in the law of state responsibility and the erga omnes partes nature of international human rights treaties.51 As a general matter, states do not often invoke the law of state responsibility with Fox, G. ‘International Law and the Entitlement to Democracy after War’, (2003) 9 Global Governance, 179 at 193; also Bhuta, N., ‘New Modes and Orders: The Difficulties of a Jus Post Bellum of Constitutional Transformation’ (2010) 60 University of Toronto Law Journal, 799 at 851. 47 ICJ, Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of Congo) 30 November 2010, para. 66. 48 On the legal value of HRC decisions as a general matter, Van Alebeek, R., and A. Nollkaemper, ‘The Legal Status Of Decisions By Human Rights Treaty Bodies In National Law’, in H. Keller and G. Ulfstein (eds.), UN Human Rights Treaty Bodies Law and Legitimacy (Cambridge University Press, 2012), 356 at 375 and 385. 49 Fewer states have agreed to the First Optional Protocol than are states parties to the ICCPR (114 compared to 167 states parties). 50 Navanethem Pillay, Strengthening the United Nations Human Rights System, UN Doc.A/66/860 (2012) 9; Shany, Y. (2013)."The Effectiveness of the Human Rights Committee and the Treaty Body Reform."Research Paper No. 02-13,International Law Forum of the Hebrew University of Jerusalem Law Faculty; The cyclic nature of the system (usually required every four–five years) reduces the scope for HRC input in a timely manner. The HRC has requested reports out of cycle, but rarely (see O’Flaherty, M., ‘Treaty Bodies in States of Emergency: The Case of Bosnia and Herzegovina’, in P. Alston and J. Crawford (eds.), The Future of UN Human Rights Treaty Monitoring (Cambridge University Press, 2000), 439). The scope for this system to engender compliance is further reduced because of the nature of the concluding observations, which, as Kalin notes, ‘do not go beyond an expression of concern in usually rather broad terms and equally broad recommendations’ (Kalin,W., ‘Examination of State Reports’, in H. Keller and G. Ulfstein (eds.), UN Human Rights Treaty Bodies: Law and Legitimacy (Cambridge University Press, 2012), 16, 17–18). 51 Article 48, the International Law Commission’s Articles on State Responsibility, adopted by the International Law Commission at its 53rd session (2001), UN Doc. A/RES/56/83; see also article 41, ICCPR. 46 [10] ESIL CONFERENCE PAPER SERIES [VOL. 6 NO 4] regard to the human rights practice of other states.52 Simmons has described the situation in the following way: Foreign governments simply do not have the incentives to expend political, military, and economic resources systematically to enforce human rights treaties around the globe. Even if they value respect for the international legal system and human integrity, states face tremendous collective action problems in organizing potential enforcement efforts.53 Furthermore, especially with rights that include limitation clauses, the government might reasonably be considered to have a stronger claim to be a legitimate interpreter of the needs of the context, than international onlookers. This point finds support in the theory of the margin of appreciation doctrine developed by the ECtHR, which identifies the democratic credentials of a government as a reason for the Court to afford greater deference.54 However, when international actors keep an interim government in place, and this is justified more on the pursuit rather than the practice of democracy, there is arguably a stronger basis and incentive for international actors to engage with the approaches taken to the implementation of rights through limitation clauses. The importance of mobilization by constituency groups in compliance theory provides additional grounds for international actors to take on a compliance role. C. Domestic or International Mobilization? Compliance theory on international human rights law generally downplays the role of international actors as part of the explanation for compliance. The view is that as international actors generally take little interest in the monitoring of human rights in other states,55 it is the domestic environment that serves as a key driver for compliance (and for the rights framework to generally be taken seriously).When a government has a concern for domestic legitimacy,56 it will give attention to the initiatives of compliance communities (including politicians, domestic judges, and NGOs) that call upon and utilize international human rights law in their assessments of the government.57 The idea that compliance is pursued as a means to help build domestic legitimacy might be required to be adjusted for political communication rights in the dependent interim government setting. This is on the following grounds. When extensive international involvement underpins the authority of the governing actors, this interrupts the connection between the government and the population of the state. As such, an interim government might strive to take a particularly proactive approach in the area of political communication to demonstrate that it is worthy of its position. Yet, it might also take comfort in the support from international actors, and view this source of authority as a reason to be less motivated in relation to delivering political communication rights that enhance the voice of the population in matters of governance. This latter option is arguably increased with political communication rights, given the lack of visibility See Simmons n 32 at 121 – 122. See Simmons n 32 at 121 – 122. 54 See Saul, ‘The European Court of Human Right’s Margin of Appreciation and the Processes of National Parliaments’, (2015) 15 (4) Human Rights Law Review 745 - 774; the HRC (in focus above) does not have a margin of appreciation doctrine, see General Comment 34, para. 35. 55 See Simmons n 32 at 122. 56 Simmons n 32 at 124. 57 Hillebrecht, C. Domestic Politics and International Human Rights Tribunals: The Problem of Compliance, (CUP 2014); Alter, K. J. The New Terrain of International Law (Courts, Politics, Rights) (Princeton University Press, 2014). 52 53 [11] ESIL CONFERENCE PAPER SERIES [VOL. 6 NO 4] in contrast to other areas, such as the right to free and fair elections (as encompassed in the right to political participation). The prospect of an interim government not being so susceptible to the domestic environment (in the same way, for example, that Simmons has argued can be the case in regimes undergoing different degrees of transition58), strengthens the onus for international actors to take an increased interest in the implementation of rights; building on the onus that already exists when the justification for international actors keeping an interim government being grounded in the pursuit of democracy. At the same time, however, there are also strategic reasons why international actors might not take an increased interest. These include the interest they have in building the reputation of the interim government, not least as a means of helping to justify the allocation of resources to their own home constituents. The extent to which the group of interested international actors is formed by states with different world views could also be significant; with certain states more inclined towards involvement in the affairs of other states on the basis of human rights than others.59 D. Summing Up In sum, perhaps the clearest added value of membership of an international human rights regime is that it provides a basis for an interim government to be called upon to take action on a particular aspect of political communication relevant for the public sphere and to be held to account for the way in which it undertakes practice. This might be a reason to expect a deeper and a more careful approach to the development and maintenance of the public sphere by a dependent interim government, than if the state was not a member of a human rights regime such as the ICCPR. As such, the promise to pursue democracy is strengthened where the regime is obligated under international human rights law. Still, the value of a basis for calls for action and scrutiny of action on the public sphere arguably depends on the likelihood of implementation by actors that are in a position to influence the conduct of the interim government.60 This means the actors keeping the interim government in authority. It is to the question of how the rights are treated in practice that attention is now turned. 4.Practice The terms interim, provisional, or transitional, used in the context of governance, are powerful ones.61 They suggest certain qualities about the actors and a certain way in which the governance apparatus should operate and be assessed. A government that is declared interim is considered to have a right to rule that is contingent on the pursuit of a particular objective. This paper has proceeded with a focus on situations where interim governance is dependent on external international actors and democracy has been identified as a particular objective. It has contended that the dependence generates a particular onus for international actors to seek to ensure that movement towards democratic governance is undertaken in good faith (given the interruption that the external presence represents to the connection between population and government).It has Simmons, ‘From Ratification to Compliance: Quantitative Evidence on the Spiral Model’, in Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink (eds), The Persistent Power of Human Rights: From Commitment to Compliance (CUP 2013) 43 at 48. 59 See A Hurrell, On Global Order, (OUP 2007) 28 and 177. 60 See also, A Schnabel, International Efforts to Protect Human Rights in Transition Societies: Right, Duty, or Politics, in S Horowitz and A Schnabel (eds) Human Rights and Societies in Transition (UN University Press, 2004) 141 at 158 – 159. 61 See Shain and Linz n 3 at p 8. 58 [12] ESIL CONFERENCE PAPER SERIES [VOL. 6 NO 4] also proposed that this should extend beyond a focus on elections, to attention to the approach that is taken to the development and operation of the public sphere (given the view that elections serve as a poor proxy for the subsequent approach to governance). The logic that underpins these arguments also leads to the view that the period of particular focus should also extend beyond the period of governance that is formally declared interim, to encompass the period when the government (although now elected) remains dependent on an international military presence for its ability to exert control over the territory. This approach is particularly relevant in situations where the identity of the interim government and the elected government remains similar (as in Afghanistan).62 This section uses Afghanistan as a case study (with a focus on the media sector), as a situation that has had a sustained long term international presence, to develop a clearer idea of the extent to which international human rights law on political communication is called upon by international actors that support governance in the aftermath of conflict.63 From the initial retreat of the Taliban in 2001, when President Karzai was installed as the head of the interim government, to the completion of the second national elections in 2009/2010, at which Karzai was again re-elected President (amidst controversial electoral processes), there was a surge in the development of the media sector. This can be explained in large measure by the extensive international funding and assistance it received.64 However, the usefulness of the media as an interface between the population and the government has been affected by a number of factors that encroach upon relevant international law. For instance, state-owned RTA is reported to have failed to develop independence and to be subject to manipulation for political purposes.65 The threat of intimidation from the Taliban but also from the government has been identified as a significant consideration,66 which can help to explain a practice of self-censorship by journalists as to what is reported.67 Consider that journalists have been detained as a result of comments 62 On the role of international law in the Bonn process for the identification of an interim government see Saul n 1. 63 On the operation of the domestic justice system in Afghanistan and its relationship to international law, see E. Afshah, ‘Constitutionalism without Governance: International Standards in the Afghan Legal System’ in E Kristjansdottir, A. Nollkaemper, and C Ryngaert (eds) International Law in Domestic Courts: Rule of Law Reform in Post-Conflict States (Intersentia, 2012) at 151: ‘there does not exist in Afghanistan today a broad social commitment to the idea of judicial control’; see also Chr. Michelsen Institute et al., Humanitarian and Reconstruction Assistance to Afghanistan (2001–2005), p. 40, querying the apparent satisfaction of the donor community with the sufficiency of the Afghanistan Independent Human Rights Commission (AIHRC) as a mechanism for holding the government to account. 64 Carey, P., An Explosion of News: The State of Media in Afghanistan (23 February 2012) (A Report to the Center for International Media Assistance) pp. 25–8. 65 Himelfarb, S., ‘Media and Peacebuilding in Afghanistan’, USIP Peace Briefing 15 (March 2010), 3; Carey, Explosion of News, p. 9. 66 Himelfarb, ‘Media and Peacebuilding in Afghanistan’, 3; Carey, Explosion of News, p. 17; US Dept. of State, Bureau of Democracy, Human Rights, and Labour, ‘2009 Country Reports on Human Rights Practices: Afghanistan’ (www.state.gov/j/drl/rls/hrrpt/2009/sca/136084.htm): ‘Some media observers considered it more difficult for journalists to operate in the areas of the country the government controlled than in Taliban-controlled areas.’ 67 Carey, Explosion of News, p. 19; US Dept. of State, ‘Afghanistan 2009’: ‘According to journalists, many reporters exercised self-censorship by not asking substantive questions of government officials and by ignoring certain investigative stories’; ‘calling into question a government official’s honor is a criminal offense under current media law, and dealt with harshly’. [13] ESIL CONFERENCE PAPER SERIES [VOL. 6 NO 4] detrimental to the government;68 and political parties have been denied registration on ideological grounds.69 Some of the problematic governmental measures that touch upon international law might have the potential to be justified under a limitation clause. Certainly, the lack of security in Afghanistan has been a major hindrance in the development of a productive public sphere,70 and the government has been keen to justify some of its constraining activity on the security situation. Consider, for instance, the decree that all news agencies ‘refrain from covering incidents of “terrorist activities or movements” between 6 a.m. and 8 p.m. on election day,’ a ban enforced by National Directorate of Security (NDS) officials.71 This measure might be able to be explained as a departure from the freedom for a pressing social need in a manner that is necessary and proportional, but whether an independent body would agree is brought into doubt by reports from well-informed observers that the ban was ‘intended to minimise public knowledge of polling place violence’.72 This suggests that it might have been a measure that has been motivated by the government trying to sustain its own authority, by reducing knowledge of events that bring into question the credibility of the election process. One might therefore expect to find the matter queried in terms of international law by the international actors that continued to support the government. However, a review of potential opportunities that could allow for the practice of the government in relation to political parties and the media to be questioned in international legal terms, such as in debates at and resolutions from the UN, suggests that international actors that have sustained the authority of the government have not used the law in this manner. 5. Modalities for Enhancing the Role of the Law: Obligations for International Actors to Monitor and Enforce? The key point from the section above is not that international human rights law compliance has not been addressed at all by international actors.73 But rather that particularly in the area of political communication rights, there is little to suggest the framework of state responsibility – representations leading to countermeasures – has been called upon. As such, the law might still serve as a motivator of certain practice; connected to the strength of indirect signals that there is an expectation of compliance with human rights law for international support to continue (implicit coercion).74The law does not, though, reach its potential as a source of constraint that can help to ensure a good faith approach to the development of the public sphere. This reduces 68 Carey, An Explosion of News, p. 31; AIHRC–UNAMA, Joint Verification of Political Rights, Wolesi Jirga and Provincial Council Elections, First Report (19 April–3 June 2005), p. 4; also De Brabandere n 8 at pp. 260–1; Cogen and De Brabandere, ‘Democratic Governance and Post-Conflict Reconstruction’, (2007) Leiden Journal of International Law 669 at 688. 70 See, e.g., US Dept. of State, ‘Afghanistan 2007’, noting the lack of physical security beyond Kabul as a factor that has limited the scope for exercise of the right to freedom of assembly. 71 US Dept. of State, ‘Afghanistan 2009’. 72 Ibid., 73 As a general matter, UNAMA is reported to have cooperated closely with the Afghanistan Independent Human Rights Commission (AIHRC) (created by Presidential Decree in June 2002, to monitor and investigate human rights violations, and to develop a national programme of human rights education), but the United Nations is reported to have been reluctant, as a result of the light foot policy, to assume a lead role on human rights (De Brabandere, n 8pp. 221–3). 74 See Goodman and Jinks, ‘Incomplete Internalization and Compliance with Human Rights Law’, (2009) 19 EJIL 725 at 725-6; also Saul n4 at 106, and 164-165. 69 [14] ESIL CONFERENCE PAPER SERIES [VOL. 6 NO 4] how much value can be placed in membership of international human rights regime with regard to assessing the strength of the promise of democracy. The value of the law could be enhanced if there was room for international supporters to take on additional obligations to monitor and enforce. That is, if the relevant rights could be made part of a more a self-enforcing type of agreement, of the sort where the agreement creates linked responsibilities and incentives for both parties.75 Three possible modalities are peace agreement, Security Council resolution, and aid agreement. Consideration of how these instruments have been used in the Afghanistan context is an opportunity to reflect on the prospects of such a step being taken in future practice. A. SC Resolution One option for generating an obligation to monitor and enforce particular human rights provisions could be the adoption of a UN Security Council Chapter VII resolution. Since the withdrawal of the Taliban in 2001, the Security Council has passed a number of resolutions on Afghanistan. The majority of these resolutions deal with the renewal of the mandate of the United Nations Assistance Mission in Afghanistan (UNAMA) and the ISAF, as well as with the UN sanctions regime targeting members of the Taliban and Al-Qaeda. There have, though, also been resolutions of a more general nature; such resolutions include 1378, endorsing the plan for Bonn, passed in the run-up to the Bonn meeting; 1383 passed after the Bonn meeting, endorsing its outcome; 1419 welcoming the occurrence of the Emergency Loya Jirga; and 1659 endorsing the Afghan Compact of 2006. As the focus of these resolutions includes matters of governance, it is here that one might expect the issue of political communication rights to be addressed by the Council. A review of the resolutions reveals an interest in the Council in calling attention to the importance of adhering to international human rights law. For instance, SC res, 1378, Para 2 2.‘Calls on all Afghan forces to refrain from acts of reprisal, to adhere strictly to their obligations under human rights and international humanitarian law, and to ensure the safety and security and freedom of movement of United Nations and associated personnel, as well as personnel of humanitarian organizations.’ However, there is no attempt to single out particular human rights provisions as important in the governance context,76 nor to introduce specific monitoring and enforcement obligations. Various reasons might help to explain this approach. A key reason is found in the nature, the structure and membership of the Council. Amidst states with different worldviews enjoying veto powers, the achievement of agreement is challenging and matters related to how governance should be conducted are particularly sensitive. For special protection of political communication rights to be advocated could put at risk other important aspects of the reconstruction process that hinge on Security Council agreement, such as security focused measures. This limits the relevance of this forum for present purposes. 75 See Simmons n32 at 114. A point that has been suggested elsewhere as a means of improving accountability in post-conflict situations; see De Brabandere 8 p. 293. 76 [15] ESIL CONFERENCE PAPER SERIES [VOL. 6 NO 4] B. Peace Agreements In relation to Afghanistan, there was no peace agreement as such. Still, the Bonn Agreement, which included the interim arrangements for governance following the withdrawal of the Taliban, can be seen as serving a similar role.77 This is because it was negotiated and agreed to by representatives of the main Afghan factions that might otherwise have resorted to violence to secure political influence. The value placed on compliance with international human rights law by the actors who agreed to the Bonn Agreement, and by the international interlocutors who facilitated it, is reflected in the agreement, which has the realisation of human rights as a prominent theme. It specifies, for instance, that ‘[t]he Interim Authority and the Emergency Loya Jirga shall act in accordance with basic principles and provisions contained in international instruments on human rights and international humanitarian law to which Afghanistan is a party,’ and in Annex II notes that ‘[t]he United Nations shall have the right to investigate human rights violations and, where necessary, recommend corrective action.’78 However, it does not place an obligation to monitor and enforce international human rights law generally or especially in the area of political communication rights. Various considerations stand in the way of a more human rights focused approach being pursued in the peace negotiation forum. A chief factor is again importance of the actors coming to agreement in the negotiations on certain fundamental issues connected to the provision of security. C. Aid Agreements A third possibility for enhancing the nature of the obligations associated with political communication rights is found in the aid context. An aid agreement has a number of potential advantages over a peace agreement as a means for ad hoc regulation. Important factors include the following: aid agreements are likely to be negotiated at a time when a relative degree of stability has been achieved; they are negotiated directly with the government, rather than with different, competing factions; and the focus of the agreements on the provision of aid can mean that there would be an incentive for a government to bind itself to international scrutiny. Since 2001, over 90 billion US dollars have been pledged to help with the reconstruction effort.79 It is reported that some 57 billion dollars were disbursed by 2010, with 20 per cent of this going directly to the government’s budget.80 The provision of aid to Afghanistan has been underpinned by a series of high-profile international conferences.81 The conferences have involved a wide 77 The Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions, 2001 (www.afghangovernment.com/AfghanAgreementBonn.htm). 78 In practice, UNAMA is reported to have cooperated closely with the Afghanistan Independent Human Rights Commission (AIHRC) (created by Presidential Decree in June 2002, to monitor and investigate human rights violations, and to develop a national programme of human rights education), but the United Nations is reported to have been reluctant, as a result of the light foot policy, to assume a lead role on human rights; De Brabandere, n 8 pp. 221–3. 79 ICG, Aid and Conflict in Afghanistan, Asia Report no. 2010 (4 August 2011) 1; major sources of this funding include, the Asian Development Bank, the World Bank, the US, the UK, the European Commission, and Germany, see AREU, A to Z guide to Afghanistan Assistance 9th Edition. 80 ICG, ‘Aid and Conflict in Afghanistan’, 1–2. 81 These conferences took place in the following places: Tokyo 2012, Chicago 2012, Bonn 2011, Kabul 2010, London 2010, Paris 2008, London 2006, Berlin 2004, Bonn 2001; for relevant information see www.thekabulprocess.gov.af/. [16] ESIL CONFERENCE PAPER SERIES [VOL. 6 NO 4] array of international actors. Such conferences have been an opportunity for drawing attention to current circumstances and needs in Afghanistan, both as a means of galvanizing aid provision but also for its coordination and targeting.82 The conferences have also been an opportunity for the international actors and the government of Afghanistan to make mutual commitments. Such commitments have often been set down in an end of conference document. A prominent example of such an instrument is the Afghan Compact of 2006 that followed the London Conference. This agreement set out a five-year reconstruction strategy centred on ‘three critical and interdependent areas or pillars of activity,’ specifically, Security; Governance, Rule of Law and Human Rights; and Economic and Social Development.83 For each of these areas, the Compact includes what it describes as ‘detailed outcomes, benchmarks and timelines for delivery, consistent with the high-level goals set by the Afghanistan National Development Strategy (ANDS)’. The specificity of the commitments made by the Afghan government and the international community varies, but features such as the title of the arrangement and the way it is set out, with large blocks of narrative text, point towards the intention of the parties as having been to create a political rather than a legal arrangement.84 Still, especially as it was negotiated following the end of the applicability of the Bonn framework for governance, the Afghan Compact could have been an opportune point to articulate particular requirements associated with human rights. Instead, there is a general endorsement of human rights provisions, P 3- 4 afghan, compact 2006. ‘The Afghan Government and the international community reaffirm their commitment to the protection and promotion of rights provided for in the Afghan constitution and under applicable international law, including the international human rights covenants and other instruments to which Afghanistan is party.’ Similarly with regard to bilateral arrangements. Consider the 2005 in the form of the Joint Declaration of the United States–Afghanistan Strategic Partnership.85 The themes addressed link to international human rights law, but in a manner that does not alter the nature of the obligations incumbent on the parties. For instance, the partnership declaration describes that the two governments intend to ‘[s]upport democratic good governance and the development of civil society based on the rule of law and human rights and encourage broad-based political participation in Afghanistan;’ and ‘[a]s Afghanistan develops its political system, the United States looks to Afghanistan to respect human rights and develop a just and inclusive society. Regular, free, and fair democratic elections, a free press, and the active implementation of Afghanistan’s constitution are hallmarks of the necessary commitment to these principles.’ The approach taken is again understandable from various perspectives. Particular issues stem from the nature of the aid relationship. International actors are keen to demonstrate support for a situation with pledges of aid, but there can be difficulties in delivering these pledges. Moreover, there can be reluctance to attempt to legalise the aid relationship, as this could generate a greater onus to deliver on pledges. At the same time, once a government becomes dependent on aid, it can be destabilising to simply withdraw it. This explains why funding has continued in spite of 82 On the insufficient monitoring of how the aid is used either by the government or sub-contractors, see Brinkley ‘Money Pit’ World Affairs (January/February 2013). 83 The cross-cutting theme of eliminating the narcotics industry was also addressed. 84 See also SC Res.1659 (15 February 2006): this resolution was not passed under chapter VII, but it endorsed the Afghanistan Compact and called on the Afghan Government, and on all members of the international community and international organizations, to implement the Compact and its annexes in full. 85 The EU entered into a similar arrangement shortly after: EU–Afghanistan Joint Declaration, November 2005; the 2005 partnership document has recently been updated through the US and Afghan Strategic Partnership Agreement 2012. [17] ESIL CONFERENCE PAPER SERIES [VOL. 6 NO 4] problematic practice in certain areas of governance. If there were an enhanced legal basis for political communication rights monitoring included in aid agreements, this would not necessarily lead to better practice; however, in a situation where requirements were disregarded by the government, the legal nature of the provision could make it more difficult for the external actors to continue to provide funding. Still, if the democracy justification for supporting an interim government is to be taken seriously, this is a route for strengthening the relevance of political communication rights that should be given more attention. 6. Conclusion Promises to pursue democratic governance are a key part of the justifications for the involvement of international actors in the creation and empowerment of interim governments. The promise to pursue democracy can influence the assessment of the legitimacy of an interim governance arrangement. However, how much value should be placed on a promise to pursue democracy can be difficult to assess. This is particularly because of the ease with which such promises can be forgotten for good or bad reasons in the attempt to establish effective governance machinery in the aftermath of conflict. One consideration that might be thought to strengthen the value of such a promise is membership in an international human rights regime. Such a regime creates obligations to hold free and fair elections, but also, through political communication rights, to take steps to develop and protect the public sphere. While elections create a focal point for domestic and international attention, activity in relation to the public sphere is more easily overlooked. This calls for particular attention to the nature of the constraint that political communication rights place on interim governments and the international actors that support them. On the basis of a review of theory, doctrine, and practice, this paper has argued that political communication rights strengthen the promises to pursue democracy. This is because they provide a basis for calls for action and scrutiny of conduct in the development and maintenance of the public sphere. However, it has also been argued that the value of the law is connected to the willingness of international supporters to hold dependent interim governments to account. If they do not take direct initiatives on the basis of the law, it is possible that it will have little impact on the conduct of governance. In this respect, a review of practice in Afghanistan suggests that international actors are not inclined to utilize the law of state responsibility in this context. This is understandable, especially in light of the general pattern for states not to make use of the erga omnes partes nature of human rights instruments. Still, it has been argued that the interim governance context, in which international actors are a major source of governmental authority, calls for a different approach. The final part of this paper has considered how we might harness certain modalities to make political communication rights more likely to be monitored and enforced. Three modalities that might be used to make the obligations of political communication rights of a more self-enforcing nature (in the sense that both sides have something at stake) have been considered: UN SC resolutions, peace agreements, aid agreements. An examination of the way these instruments have been used in the Afghanistan context has shown that they have been used to highlight the importance of human rights in a general manner. This means in theory it would be possible for certain rights to be highlighted as requiring particular attention. The prospects of this occurring have been suggested to be slim, including because of the politics that surround the formulation of the resolutions and agreements. Nonetheless, promises of democratic governance, both origin and exercise, continue to surround international empowerment of interim governments. In order to [18] ESIL CONFERENCE PAPER SERIES [VOL. 6 NO 4] help ensure that the international and national actors with authority work to deliver on the promises that underpin their legitimacy, there remains an onus for political communication rights to be strengthened. [19]