Order from Transfer
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Order from Transfer

Comparative Constitutional Design and Legal Culture

Edited by Günter Frankenberg

Constitutional orders and legal regimes are established and changed through the importing and exporting of ideas and ideologies, norms, institutions and arguments. The contributions in this book discuss this assumption and address theoretical questions, methodological problems and political projects connected with the transfer of constitutions and law.
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Chapter 11: Constitution-making in occupied countries

Stefan Kadelbach


Constitution-making in occupied states and territories is an international concern for two sets of partly contested normative reasons. The first category of norms which internationalize municipal order derives from the Charter of the United Nations (UNC). Since the end of the Second World War, the occupation of foreign countries is no longer a domestic affair for the occupying power. Annexation after armed conflict and colonial domination are equally ruled out by the Charter. Thus, foreign domination must be justified, and it must be transitional. Enacting a new constitution for the occupied country is accepted only as the final point of a peace-building process or of decolonization. The second rationale for the internationalization of constitution-making points to the contents of a constitution and is debatable. The question is how far democracy, human rights and the rule of law have reached the status of international law principles so that they may limit the possible outcomes of constitution-making. If they serve as a justification for influencing the domestic legal order of the occupied country, a conflict between the claim to the universality of certain rules and the aspirations of local elites, groups, or, at worst, the majority of the population may arise and lead to the paradox of a notion of self-determination defined from outside. The ensuing problems of self-determination, legitimacy and efficacy inherent in a constitution-making process influenced by non-domestic actors can be illustrated by distinguishing, for the time being, the two groups of cases in which they occur: post-conflict scenarios and de- colonization.

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