This report presents an overview of relevant practice in relation to transitional governance (TG), that is, temporary governance arrangements put in place to manage transitions from violent conflict and increasingly social crisis. Since 1989, TG became disassociated from decolonization, secession or dissolution processes. It became a process whereby transitional authorities (TA) introduce a wholesale constitutional transformation (‘reconstitutionalisation’) with the intention to bring peace and stability (‘peace-through-transition paradigm’).
By unveiling the current factual features of TG, the report lays the groundwork for an analysis of how international law – as it currently stands and as it may develop – applies to TG.3 It focuses on the period during which a state’s constitution and institutions are held in abeyance during a transition, especially in the context of an armed conflict, or a threat to international peace and security. This period will be called the transitional period (or interregnum).
A transition, generally, connotes a renaissance (almost akin to a creation) of a state when its constitution and institutions are overhauled in response to conflict and increasingly ‘mere’ violent social crisis. In more detail, a transition concerns (a) the transformation of a state’s regime (neutrally understood as ‘the institutional structure of the state and government’) (b) by nonconstitutional means (broadly understood), (c) on the basis of legal instruments or of texts with a temporary constitutional status, (d) regardless of their form (international agreements, domestic intra-state agreements, interim or transitional constitutions, domestic/unilateral acts or declarations, or a combination thereof), (e) and regardless of whether their origin is based in consensual, or oppositional politics.
This report suggests that five features of TG can increasingly be observed, and are likely to be further socialised by practitioners including diplomats, mediators and constitutional experts.