Research Handbooks in Comparative Law series
Edited by Tom Ginsburg and Rosalind Dixon
Chapter 5: Constitutional Drafting and External Influence
Zaid Al-Ali 1 INTRODUCTION External influence on a constitution-making process can be exercised actively through the direct intervention of an external actor, or passively through the impact of a series of norms or rules. A wide range of actors can be involved, including multilateral organizations such as the United Nations, the World Bank and the International Monetary Fund, individual states, civil society organizations (including well-established state-funded political organizations such as the German stiftungen) and individual scholars or advisers who are commissioned by participants in the constitution-making process itself to provide advice on specific issues. Recent experience indicates that external actors are almost always motivated by a desire to ensure the protection of fundamental rights and adherence to international best practice in the constitution’s final draft. Although this necessarily means that they seek to influence the drafting process towards a certain outcome, many observers would probably agree that this type of influence has on the whole been enormously useful in the development of constitutional law in countless countries in recent decades. Importantly, however, recent experience also shows that different categories of external actor behave according to separate standards of behavior, sometimes to the extent that external influence can skew constitution-making processes in favor of undesirable outcomes. By virtue of the generally accepted principle that nations do not interfere in each other’s internal affairs, states tend not to intervene directly in the constitution-making process of other states except under exceptional circumstances, such as in post-conflict situations. Where foreign state actors are involved,...
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