Comparative Constitutional Design and Legal Culture
Edited by Günter Frankenberg
Chapter 12: International influence on post-conflict constitution-making
Conflicts create traumas – and opportunities. They question identities and undermine structures but they also provide openings for the creation of something new. Post-conflict situations are hence as fragile as they are inviting. The international community has increasingly taken up this “invitation”. In the attempt to provide order international actors have become especially involved in the processes of post-conflict constitution- making which have become a central element of the post-conflict ordering. Unavoidably, these ordering interventions also involve the transfer of ideas, norms and values. To some extent, the insistence on constitution-making itself might already contain the transfer of an idea of what order should look like. Such international influence on constitution-making in post-conflict situations is not an entirely new phenomenon. The cases of Germany and Japan, who received major input from the US (to put it mildly) into their post-war constitutions, can serve as prominent examples of previous instances. However, not only has the number of cases grown immensely in recent years, but so too have the (legalized) techniques and agents of influence, suggesting that a general shift has occurred concerning respect for the constituent power of a nation, once believed to be the most fundamental privilege of a nation. This internationalization and accompanying shift raise fundamental questions of legality and of legitimacy. The present chapter wants to address these questions and ask to what extent such ordering can be regarded as legal and legitimate. To that end, it analyzes three concrete examples of such external influences (Sudan, Iraq and East Timor), and assesses them from the perspective of their legality and their legitimacy.
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