1. Introduction
Internationalized constitutions are one of the latest additions to the menu of international peacebuilding efforts. While many areas of international law and the exercise of international authority are well documented and reflected upon at length in academic literature, the field of internationalized constitutions remains less defined and under-explored. Commentary has touched upon international assistance to constitution drafting in the context of peacebuildingFootnote 1 and the ‘internationalized pouvoir constituant’.Footnote 2 Authors have conceived of new ways to understand post-conflict constitutions as ‘transitional constitutions’Footnote 3 or in terms of ‘new constitutionalism’.Footnote 4 The concept that has not yet been adequately explored at the intersection of all these ideas, but which yields many fruitful insights for international lawyers, is that of the internationalized constitution. Dann and Al-Ali's internationalized pouvoir constituant is a key concept, as it encapsulates the way that external actors may constitute part of the ‘people’ who draft a constitution, often under some form of UN authority. To give this concept further depth it is needed to rigorously examine the rationales of peacebuilding operations and the common dilemmas found in connecting a constitutional process to a peacebuilding mission.
This article combines a general thematic approach with a practical perspective provided by two case studies. The broad themes have been chosen to illustrate the connections between internationalized constitutions, justifying their consideration as a discrete phenomenon and deepening insight into the specific dynamics at play. These themes set the scene for the case studies of Kosovo and Iraq, which allow practical insights to be drawn, and enable an examination of the impact of this practice on fundamental principles of international law.
Section 2 of this article defines the paradigm of internationalized constitutions, putting them in theoretical and historical context and outlining their main features, forms, and relationships with international law.
Section 3 deals with the rationales behind internationalized constitutions. The primary rationales have been identified as a desire to match an internal conflict with an internal solution; a drive to ensure human rights, self-determination, and democracy; and the aim to address the root causes of conflict.
Some of the cross-cutting dilemmas of internationalized constitutions are considered in section 4, including timing, legitimacy, and sustainability. Section 5 uses the case studies of Kosovo and Iraq to highlight trends and draw conclusions about internationalized constitutions in practice. The case studies are examined through several lenses: the use of consociational power-sharing arrangements, the exercise of international authority, and over- and under-inclusion of human rights provisions.
2. Defining the paradigm
2.1. Internationalized constitutions
A constitution provides a blueprint for government in a state. It is regarded as the foundation of the legal order, providing supreme norms from which other laws flow. It is usually designed for perpetuity, and is the basis for stability.Footnote 5 A traditional understanding of state sovereignty includes the power to adopt a constitution, but whether that power is exercised, and what form the constitutional order takes, are considered beyond the purview of international law.Footnote 6 Traditional assumptions about the nature of constitutions and their insulation from international law are increasingly challenged by global interdependence, an active community of international actors and institutions, and evolving concepts such as peacebuilding. While international involvement in the drafting or even imposition of constitutions is not new, the modern linkage of constitutions with peace processes is a new phenomenon with different implications. Contemporary international involvement is usually undertaken in the name of benevolent assistance in the pursuit of international peace and security. Internationalized constitutions are not the only manifestation of this benevolent international authority, but unlike other examples like the international administration of territory, they have not been the focus of much attention in the literature.
This practice and its normative underpinnings are a challenge to international law because although the law is nominally blind to differences in constitutional orders, international actors are in fact having significant input in this area, bringing international law with them. As a phenomenon, internationalized constitutions in peacebuilding raise questions about our understandings of state sovereignty and the role of a constitution, as well as widely accepted norms such as self-determination and a belief in democratic processes.
The genesis of a direct connection between constitution drafting and peacebuilding can be traced back to Cambodia in 1991.Footnote 7 An annex to one of the Paris accords listed six guiding principles for the drafting of a new constitution, which included that Cambodia would be a liberal democracy based on pluralism, that the constitution would contain a declaration of human rights, and that there would be periodic elections with universal suffrage.Footnote 8 Since Cambodia the involvement of international actors in peacebuilding and constitution drafting has taken a variety of forms and has expanded well beyond the auspices of the UN; however, these principles remain central to internationalized constitutions.
Deep international involvement in a constitution-drafting process is most evident where there has been some form of international administration of a territory or close supervision of a peace process. In some cases an internationalized constitution will be preceded by an ‘international’ constitution, being a document completely founded in international authority such as the Transitional Administrative Law (TAL) in Iraq, or the UNMIK Constitutional Framework for Provisional Self-Government. Examples of internationalized constitutions include those of Cambodia, Timor-Leste,Footnote 9 Bosnia and Herzegovina, Kosovo, Afghanistan, and Iraq. These examples fit within the paradigm because while they are founded in the domestic authority to draft a constitution, they manifest such a degree of international influence over the process of the drafting, or the substance of the constitution, or both, that international actors can be understood to form part of the pouvoir constituant. Footnote 10 The internationalized constitution reflects not just the wishes of the local population but also international views about the structure of governance, division of power, appropriate legal standards, and vision of the nation. Internationalization arises from the intersection of international authority with domestic law, which may take the form of an international legal instrument initiating or authorizing the constitution-drafting process (for example Security Council resolutions or peace agreements), and may include elements of institutional internationalization in the constitution (for example international judicial or executive authority).
In order to examine important issues related to the rationales, dilemmas, and trends of internationalized constitutions, it will be necessary to look at both the process of constitution drafting and the substance of the document itself. No strict delimitation is made between these two aspects of constitution making because, as will be seen, process and substance are often so interrelated as to be inseparable.
In an internationalized setting, assistance goes beyond mere consultation or advice on comparative constitutional laws. These constitutions are created in and reflect an environment of high or even complete dependence on outside support to build a legal order. As they form part of a peace process they are also influenced by recent or continuing violence and a prerogative to halt it or prevent future outbreaks. This affects the substance of the constitution, the time frame of the drafting, and its long-term sustainability. The common features of internationalized constitutions reveal a pattern of substance and practice which forces us to re-evaluate some of the norms such as sovereignty, self-determination, and democracy that are presumed to be central to our international order.
2.2. Forms
In the post-conflict environment a flexible approach to constitutions is called for, including interim arrangements and transitional provisions where necessary. The type and degree of international influence over a constitution can vary and can relate to the constitution-drafting procedure or to the substance of the actual provisions. One approach to international influence is what the UN Secretary-General in 2002 referred to as the ‘light expatriate footprint’ in relation to Afghanistan, which was also intended for Iraq.Footnote 11 On this model, international authority may be the legal impetus for the drafting of a constitution, but the process and substance are largely left to local actors, with international facilitation and support. In other cases, the point of intersection with international authority may be deeper, with direct oversight of the drafting process and input into the substance of provisions.
As well as manifesting different degrees of international influence, internationalized constitutions can serve varied purposes and take on a variety of forms. The instrumental role of the constitutions of Kosovo, Bosnia and Herzegovina, and Timor-Leste was the creation of new sovereign entities. In Cambodia, Afghanistan, and Iraq the purpose was transformative, in order to deviate from the status quo in a pre-existing sovereign state. Internationalized constitutions are often part of a series of interim arrangements in a post-conflict sequence. In Kosovo, Timor-Leste, and Iraq, international administrations and occupations were founded on temporary ‘constitutions’ of Security Council resolutions and regulations, which preceded the drafting of more permanent structures. Even the ‘permanent’ constitutions in Bosnia and Kosovo included transitional provisions for unspecified periods of international supervision. Kosovo's ‘supervised independence’ came to an end in September 2012 after these provisions were removed. To accommodate this ‘new constitutionalism’, there have been calls for a more flexible understanding of constitutions which accommodates creative and interim arrangements, and which sees a constitution more as a process than as a definitive moment or document.Footnote 12 Such an approach is useful for two reasons – first it more accurately represents the reality of internationalized constitutions, which are often part of a transitional process serving various functions, and second it places emphasis firmly on that process, including the aims and purpose served by the internationalized constitution. This focus lessens the risk that the drafting of a constitution is treated simply as one more box to tick on the peacebuilding agenda, absolving international actors of further responsibility.
2.3. Normative embedding
A distinctive feature of internationalized constitutions is their normative embedding in the discourse, framework, principles, and rules of international law. This feature goes beyond the traditional distinction between monist and dualist systems, which does not adequately convey the overlapping and multifaceted interactions between the domestic and the international in these constitutions.
The embedding is often formalized in the constitution itself but the process begins much earlier. Contact with international law may begin at the stage of a peace agreement where UN guidelines, resolutions, and recommendations may regulate the process and substance of the agreement.Footnote 13 The embedding may deepen if there is an international administration or occupation governed by international law. Where the UN is exercising executive powers in an administration, those powers will be rooted in Security Council resolutions, and exercised by way of international regulations and decrees. The judicial process is also internationalized by the use of international judges, and because cases will have to be decided on the basis of the applicable laws which include international regulations and Security Council resolutions.Footnote 14 This legal framework provides the basis for international law to become embedded, because even transitional and interim arrangements have a strong impact on the subsequent legal regime. In the post-conflict setting where peace is often precarious and governance structures are weak, this embedding can fill a normative gap in the legal order. When a more ‘permanent’ constitution is drafted, the influence of international law does not instantly evaporate. The norms and discourse of international law will continue to influence the legal order informally as those actors who have participated in the transitional administration will inevitably have absorbed some of the language, expression, and principles of international law. Those actors will likely be both local and international as, though international involvement evolves and may lessen over time, it rarely disappears very quickly.
Further, in many internationalized constitutions, a more explicit role is often reserved for international law in the legal order. This often takes the form of a ‘monist’ rather than ‘dualist’ system.Footnote 15 In Bosnia and Herzegovina and in Kosovo, the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols were given direct application by the constitutions.Footnote 16 Article III(3) of the Constitution of Bosnia and Herzegovina states that ‘international law shall be an integral part of the law of Bosnia and Herzegovina and the Entities’. Kosovo's Constitution also provides that ‘ratified international agreements and legally binding norms of international law have superiority over the laws of the Republic of Kosovo’.Footnote 17 The Constitution of Timor-Leste provides that ‘the legal system of Timor-Leste shall adopt the general or customary principles of international law’, and that ‘all rules that are contrary to the provisions of international conventions, treaties, and agreements applied in the internal legal system of Timor-Leste shall be invalid’.Footnote 18 These constitutional provisions show a high level of integration with the international legal order. Bosnia and Herzegovina, Timor-Leste, and Kosovo are also situations where there has been some level of international governance of the territory either during an interim administration or through executive powers in the constitution. The strong role for international law in the constitutions may reflect the degree of international leverage in the drafting process, and a recognition of the need to rely on international frameworks for practical and political reasons. It may also reflect, and perpetuate, a level of normative embedding of these constitutions within international law, creating a kind of happy relationship with international law.Footnote 19
Constitutions displaying a lower degree of internationalization such as Iraq and Afghanistan, while including human rights provisions derived from international law, take on a dualist model and do not have the same relationship with international legal frameworks seen above. This is not to say that international law has not had any impact on their legal orders, but rather that such impact may be less tangible in the written document itself. This lower level of internationalization can be seen as a corollary of the light-footprint approach taken in both countries.
The notion of embedding is a dynamic one, meaning that not only is the domestic legal order embedded in the international, but international law is becoming embedded at the domestic level. International law is inevitably evolving as a result. Domestic systems directly plugged into international law, especially where there has been international governance, blur the boundaries between the categories of domestic and international law. Internationalized constitutions call on international law to play new roles, and the practices of states and international actors may crystallize into new international law.
2.4. Sovereignty and facilitated self-determination
Internationalized constitutions present a dilemma for traditional state sovereignty. Rather than being exceptions to the rule, the conditional independence and supervised orders created by internationalized constitutions are part of a new understanding of sovereignty in a highly interdependent world.
The Montevideo criteria for statehoodFootnote 20 were already modified in the context of decolonization to give priority to self-determination even where those criteria are not necessarily met.Footnote 21 Internationalized constitutions present a new scenario, in that the international community may not only be willing to recognize the sovereignty of a territory based on self-determination, but also willing to step in and facilitate that self-determination in a very hands-on way. The difference is that self-determination of that territory almost certainly would not otherwise occur, and this high dependency moves even further from the Montevideo criteria. The interdependence of the current world order is a given, but to see its manifestation in internationalized constitutions is a concrete sign of how flexible the idea of sovereignty has become. In the case of Kosovo, it may transition from supervised independence to eventual EU membership (assuming recognition of its statehood can be obtained from all member states) without ever really being a fully sovereign state in the sense of the Montevideo criteria.Footnote 22 In every internationalized constitution, self-determination was realized in such a way that the international actors effectively became a part of the ‘self’, creating the internationalized pouvoir constituant. The acceptance of this depth of international participation in traditionally sovereign practices modifies our assumption of a community of equal and independent states, because internationalized constitutions codify de jure an inequality which previously only existed de facto. The implications of ‘facilitated self-determination’ and the new sovereignty it brings about deserve further attention. For the purposes of this discussion we note simply that internationalized constitutions are being influenced by, and are influencing, changes in fundamental norms.
3. Rationales
The rationale for including constitution writing in the toolbox of peacebuilding can be traced to the changing nature of warfare, growing international concern about human rights and the protection of civilians, and the UN's increasing preoccupation since the 1990s with addressing the root causes of conflict.Footnote 23 The connection between new constitutions and peace is rarely questioned, even though as a phenomenon it certainly challenges some of the traditional rationales for constitution drafting and by no means guarantees enduring peace.Footnote 24
3.1. Internal solutions for internal wars
The general shift from inter-state to internal conflict in the second half of the twentieth century brings different conflict resolution tools into play.Footnote 25 While the resolution of an inter-state war commonly takes place by way of a peace agreement or treaty between two or more states, wars fought to gain independence from a colonial power, or a civil war between a state and a group within it, demand a different approach. Such wars are often fought with the aim of changing the system of government or the distribution of power within it, and as a result peace may not come without an agreement to change the constitutional order.Footnote 26 These situations may involve the creation of a new constitutional entity, as in Kosovo and Timor-Leste, or the transformation of an existing order, as in Cambodia.
3.2. Human rights, self-determination, and democracy
The development of constitution drafting as peacebuilding can be seen as part of the international community's increasing willingness since 1945 to monitor, comment on, and take action regarding the internal affairs of other states.Footnote 27 In spite of the principle of non-intervention enshrined in Article 2(7) of the UN Charter, we live in a world where issues of human rights, self-determination, and democracy are matters of international concern. The drafting of internationalized constitutions is an opportunity to ensure that a country has a legal framework in conformity with those norms.
Self-determination is a legal right under international law for a people to ‘freely determine their political status and freely pursue their economic, social and cultural development’.Footnote 28 While there is legal uncertainty over whether there is a right to secede from the territory of a state where internal self-determination is denied,Footnote 29 situations such as Kosovo and Timor-Leste show that the principle may operate in that way in exceptional circumstances. Self-determination is a driving force behind internationalized constitutions as it is the ultimate way for a people to determine their political status. The way in which international actors facilitate self-determination in internationalized constitutions creates interesting dynamics which will be considered further below.Footnote 30
The less visible aspect of this rationale is that international actors are seeking not just to guarantee any kind of self-determination, but self-determination in the form of liberal democracy. Democracy promotion can result in an uncomfortable perception of imposition;Footnote 31 however, it is safe to say that an internationalized constitution with any other system of government is unthinkable today. Due to express and implied requirements in many treaty regimes and international organizations, it would be virtually impossible for a new undemocratic state to be recognized by and participate in the international world order.Footnote 32 The pro-democracy agenda is rooted in international liberalism, which is the driving force behind the action of most international institutions.Footnote 33 A central belief is that democracy provides the best chances of internal stability, as well as a peaceful international order.Footnote 34
An internationalized constitution is seen as an opportunity to ensure that the newly created legal order protects liberal values, including democracy and strong human rights protections.
3.3. The opportunity to address root causes
Although the nature of conflict had already changed, it was not until the end of the Cold War that the UN possessed the political will and means to provide deep input into the prevention and resolution of conflicts. Since the UN Secretary-General included peacebuilding in his 1992 ‘Agenda for Peace’,Footnote 35 peacebuilding has become accepted as a way to prevent a relapse into conflict through ‘action to identify and support structures which will tend to strengthen and solidify peace’.Footnote 36
The rationale to address the root causes of conflict remains central to international involvement in constitution drafting. The Constitution of Bosnia and Herzegovina perhaps epitomizes the use of a constitution as a tool for peace, as the Constitution is Annexure 4 to the Dayton Peace Agreement itself.Footnote 37 In relation to Iraq, Security Council Resolution 1511 (2003) first recognized that ‘international support for restoration of conditions of stability and security is essential to the well-being of the people of Iraq’, and in the next line welcomed the process initiated to ‘draft a constitution to embody the aspirations of the Iraqi people’. In Kosovo the Ahtisaari Plan, which was granted pre-eminence over even the Constitution itself,Footnote 38 prescribed ‘constitutional, economic and security provisions . . . aimed at contributing to the development of a multi-ethnic, democratic and prosperous Kosovo’.Footnote 39 The fundamental rationale to ensure peace and stability through a new constitutional order is explicit.
3.4. Problematizing the rationales
Although the rationales of matching an internal tool of peace to internal conflicts, addressing the root causes of conflict, and protecting civilians and their human rights, can hardly be questioned as worthwhile, they do raise important issues regarding international involvement in constitution writing in general, and the connection of constitution writing to peace processes.Footnote 40
The rationale of protecting human rights and fostering self-determination through democracy is problematic because it is difficult to empirically prove the connection between democracy and stability, or democracy and peaceful international relations. In attempting to measure the success or failure of a post-conflict constitutional order, there is no reliable indicator.Footnote 41 The use of different measures can lead to different statistics and conclusions.Footnote 42 In the absence of concrete proof, the liberal values underlying internationalized constitutions look more like a conviction than a fail-safe model. Unfettered democracy can be highly destabilizing, especially in a post-conflict setting, by exacerbating ethnic tensions, permitting tyranny of the majority over minorities, and even sparking further conflict.Footnote 43 Recognizing the possible irrationality behind trying to protect liberal values through internationalized constitutions is not intended to discredit the entire endeavour, but rather to encourage sensitivity to context. Systems of government and legal frameworks are more effective when they are tailored to the specific society they are intended to govern, and indeed arguably much progress has been made in this regard since early peacebuilding efforts. We should beware of wholesale importation of international models, while acknowledging the consensus that liberal democracy with strong human rights protections is the best starting point that has been come up with so far.
The drafting of a constitution in proximity to conflict can highlight the different purposes that constitutions and peace arrangements usually serve.Footnote 44 The clash in rationales may occur because peace agreements often make immediate changes and compromises in order to end violence, while constitutions generally ‘codify an existing consensus on national identity and values and on how society wishes to be governed’.Footnote 45 Where there is still ongoing conflict, or an imminent threat of it breaking out again, the constitution will likely be influenced by the overriding concern to end the violence.Footnote 46
The creation of a constitution which embodies or fosters a unified national identity is extremely unlikely if the parties are also negotiating peace. Those at the negotiating table may only be armed groups, excluding the voices of non-violent groups and the general population from participation. The resulting constitution will disproportionately reflect the interests of those groups. The Constitution of Bosnia and Herzegovina, for example, entrenched the ethnic divisions that had fuelled the conflict and in effect ratified the results of the ethnic cleansing that had been carried out.Footnote 47 The lack of national unity is highlighted by the specific terminology used to describe the three main ethnic groups as ‘constituent peoples’. An extremely weak central government was created because each ethnic group wished to preserve its independence, which has caused significant problems for passing laws necessary for eventual EU accession.Footnote 48
Where there is violence ongoing, security concerns may place physical constraints on the drafting process, polarize groups, and prevent participation.Footnote 49 In Iraq during August 2005, when most of the Constitution was written, there were 70 insurgent attacks daily, 282 Iraqi military and police killed, between 414 and 2,475 civilians killed, 27 multiple fatality bombings, 23 kidnappings of non-Iraqis, and 3,000 insurgents detained or killed.Footnote 50 The violence and insecurity endangered and prevented the participation of many negotiators and excluded the general population from the process. The result was ‘a one-month charade from which not only fragmentation, but also civil war, was virtually guaranteed’.Footnote 51
The problems associated with drafting a constitution where there is no durable peace may undermine the entire process and the resulting constitution, defeating the rationales of the whole exercise. It is not so simple, however, to conclude that a constitution should never be part of a peace process. Internationalized constitutions build frameworks for countries and territories in transition, which have the potential to channel conflict into political structures, and the potential to contribute to the rule of law. But this is no more than a potential. Whether an internationalized constitution actually does address the root causes of conflict depends on how dilemmas such as those considered further in section 4 of this article are managed.
4. Cross-cutting dilemmas
Internationalized constitutions present a number of cross-cutting dilemmas. Reflecting upon these dilemmas and their dynamics in different situations is useful in order to understand the imperatives and limitations of international involvement, and consider options for future interventions.
4.1. Timing
The dilemma of timing a constitution-drafting process is so significant because it can dictate the perceived success or failure of the resulting constitution and the content of its provisions, and smooth implementation. Decisions about the timing of international action are often made on the basis of factors unconnected with the constitution itself. The political will of international actors to remain deeply involved in any given situation is often limited by the desire to make a swift exit, due to other states’ domestic political concerns, budgetary constraints, or fast-changing agendas. Furthermore, the ability of the international community to influence constitutional matters within a country will diminish over time.
The rushed completion of a constitution-drafting process has the potential to defeat all of the aims of an internationalized constitution. Time pressure may lead to ill-considered provisions; to a lack of awareness, education, or consensus in the local population about the desired system of government; to a concomitant lack of a sense of ownership over the document; and to the failure to ensure peace and stability.
To advocate for a longer, slower, and more organic constitution-drafting process, however, is not as straightforward as it may seem. International leverage fades after a crisis situation has stabilized, and international actors may find it impossible to apply pressure for constitutional provisions that are regarded as necessary to address the root causes of conflict.Footnote 52 These provisions may include strong human rights protections for all groups in society, guaranteed applicability of international law in the domestic legal regime, and a system of government that international actors see as guaranteeing peace and stability.Footnote 53 For example, minority rights protections and human rights enforcement mechanisms contained in the Constitution of Bosnia and Herzegovina would almost certainly not appear in their current form if the constitution had been drafted over several years in a home-grown process.Footnote 54
Even where a constitution is not immediately put in place by the international community, as happened in Bosnia and Herzegovina, the legal framework put in place in the immediate aftermath of a conflict will have a significant impact on later developments. Arrangements initially regarded as interim may be absorbed into the political and legal culture and prove hard to dislodge later. Arguably, therefore, insistence by international actors on particular legal frameworks or guarantees, whether or not they reflect local wishes, could provide a better starting point for future constitution drafting. As well as providing a potential benefit in terms of legal standard setting and culture, early legal arrangements serve an important role in ensuring that undertakings of international actors can be followed up later and expectations can be met. A balance must be struck between maximizing the moment of international influence, and avoiding time pressures which undermine the goals of the entire constitution-drafting process.
4.2. Legitimacy
Internationalized constitutions challenge our conventional understanding of a constitution because the degree to which the document can be said to express the will of a population may be extremely limited. This fact is in opposition to the fundamental legal principle of self-determination which gives a ‘people’ the right to choose their own system of governance.Footnote 55 As Feldman notes, the distinctive feature of ‘imposed liberal constitutionalism’ today is that ‘it takes place against a backdrop of widespread commitment to democratic self-determination’.Footnote 56 Traditionally, a nation, or a people, are the pouvoir constituant of a constitution. They draft a document which represents their political self-expression, to the exclusion of outside influence which would dilute the democratic nature of the process.Footnote 57 While this view probably never reflected the reality of every constitution-drafting process, it is still the point of departure for contemporary discussion.
The UN and other actors providing assistance in drafting constitutions are generally conscious of their role and make efforts to avoid the perception of imposition or neo-colonialism.Footnote 58 There is also widespread recognition in the literature of the need for ‘local ownership’ of a constitution-drafting process, however much less consensus on the precise meaning of that term. ‘Local’ could be used to indicate the national, as opposed to international, constituency, or rather to focus on local communities over centralized national institutions. ‘Ownership’ could be fostered or expressed through public participation in the drafting process, education campaigns, or a final referendum on the constitutional document. While keeping in mind the contested meaning of local ownership and its potential misuse, strong public participation and consultation in the actual process of drafting a constitution remain important ways to increase the chances that people identify with the constitution that is created.Footnote 59
The dilemma is how to reconcile sensitivity to sovereignty and local ownership of the process with the two guidelines given primary importance by the Secretary-General and reflecting the basic rationales of international involvement: ‘seize the opportunity for peace-building’, and ‘encourage compliance with international norms and standards’.Footnote 60 The imperatives of peacebuilding may require forging agreements between groups of unelected elites who may not represent the interests of the entire population. Encouraging compliance with international norms and standards may involve the importation into a constitution of laws which have no resonance with national culture. All these dynamics may undermine local ownership of a constitution and restrict self-determination. The resulting absence of self-determination may be detrimental to the legitimacy of a constitution in the eyes of the pouvoir constituant. Legitimacy is a vague concept, open to manipulation, but reflects a level of acceptance of the exercise of power.Footnote 61 If the constituent peoples do not accept a constitution as a legitimate exercise of power over them, they are unlikely to consent to be governed by it, undermining the legal order that was created and any culture of constitutionalism.
Internationalized constitutions force us to reformulate the traditional understanding of legitimacy as a purely internal matter, because the international community effectively becomes part of the constituency being expressed and consenting to the constitution.Footnote 62 Because they are made by an ‘internationalized pouvoir constituant’, legitimacy is measured by the additional imperatives and concerns of those actors. International actors are driven by the rationales discussed in section 3 of this article, namely to maintain and build peace and security, and to import international standards of democracy and human rights, so their consent to the constitution hinges on achieving those goals. These objectives may be in tension with the norm of self-determination which is the primary concern of the local pouvoir constituant.
The legitimacy of internationalized constitutions, therefore, depends on a level of acceptability for all parties concerned. For the local population, ownership is necessary to consider the constitution an exercise of self-determination. A sense of ownership is difficult to orchestrate, although it is often attempted through a programme of formal public participation in the process. Several studies have failed to find a solid correlation between public participation and what could be regarded as a legitimate constitutional framework.Footnote 63 A case in point is the Eritrean constitution, which was the result of a deeply participatory process but has been completely disregarded by the autocratic government. Similar examples are found in Thailand and Ethiopia.Footnote 64 The counterexamples of Germany and Japan demonstrate that a constitution may gain legitimacy even in the absence of public participation. These studies and examples demonstrate that the internationalization of a constitution is not necessarily fatal to its legitimacy, and that public participation is also no guarantee of local ownership or legitimacy. While outside influence presents a challenge, and public participation is one logical way to meet that challenge, a constitution may be accepted or rejected by a population for a range of reasons.
Another concern for the local constituency is that international action is not perceived as illegitimate. This may be judged on the conduct of the actors, for example whether they are mediating conflicts, counterbalancing undue influence from any one group, and ensuring an inclusive drafting process.Footnote 65 Other measures of legitimacy may be that international assistance is provided transparently, is genuine rather than self-interested, and focuses on process rather than substance.Footnote 66 According to a realist view of international relations, however, there is no such thing as genuine rather than self-interested international action. The discourse of human rights can be used to ‘lend moral allure to naked state interests’;Footnote 67 and terms like ‘local ownership’ may mask dictatorial powers or carry psychological rather than political meaning.Footnote 68 While realist theory is generally premised on the centrality of sovereign states in the international order, it could also be argued that international organizations and their various agencies act in support of particular state interests, or in the realm of peacebuilding they could be regarded as actors with vested interests in their own right. From this perspective international influence could be seen by the local population as outright interference or just the latest form of colonialism.Footnote 69 These concerns should be borne in mind as they will play directly into the legitimacy needed to sustain the constitution.
In terms of international influence over the substance of constitutional provisions, it is also necessary to consider what level of artificiality is tolerable for legitimacy. In cases where a constitution is creating a new entity, or where there is no democratic tradition of government, a high level of artificiality is inevitable.Footnote 70 However, where those international standards directly conflict with local culture and are likely to be ignored, it may also reduce the legitimacy of the resulting document.Footnote 71
The tension between the different legitimacy concerns within an internationalized pouvoir constituant highlights the delicacy of the process and the challenge in ensuring that it is regarded as legitimate by all those invested in it. Self-determination remains central but the multiplicity of actors and rationales makes legitimacy a more complex equation.
The Iraqi case shows that where a constitution is internationalized by the primary involvement of just one state, especially where that state is so deeply implicated in the previous (and ongoing) violence as a party to the conflict, the impact of those narrow interests is amplified, and the rationales of constitution making are at high risk of being subjugated. Although in that case it was the flawed imposition of the arrangements by outside actors that was fundamentally problematic, what was needed was in fact greater internationalization.Footnote 72 The UN was largely sidelined in the administration of Iraq generally and also in the Iraqi constitution-drafting process. A constitutional support team of the United Nations Assistance Mission in Iraq (UNAMI) was present, but was not formally invited by the Iraqis to assist until June 2005. That role became informal once more after the drafting committee was de facto dissolved.Footnote 73 The Iraqi constitutional process highlights the benefit of acting through an organization perceived to represent the international community as a whole, rather than one single state and its close allies. If the process had been administered by the UN, it would by no means have been an apolitical, disinterested intervention, but it would at least have the appearance of objectivity and accountability to a broader range of interests. In addition, the process would have been guided by the accumulated expertise of the constitution-making community. In the end the overriding rationale behind the Iraqi Constitution was to meet a set deadline, and in pursuing that rationale, the priorities of securing participation, legitimacy, and minimum international standards were sacrificed.
5. Emerging trends, issues, and conclusions from two case studies: Kosovo and Iraq
While a broad look at the rationales, forms, and cross-cutting dilemmas of internationalized constitutions gives a general overview of the paradigm, a closer examination of two case studies enables us to draw more concrete insights. These case studies have been chosen as they are the two most recent internationalized constitutions to come into force, and therefore may be thought to embody the accumulated experience of previous endeavours. Both of the internationalized constitutions in the case studies were embarked upon in the aftermath of conflict in which there was international military intervention, i.e. where forces representing other states or international organizations were a party to the conflict. This was a factor which ensured high international investment in the outcome of that constitutional process and in seeing that its rationales were fulfilled. While there are commonalities between the case studies, there are also important differences that enable comparisons to be made. The situation in Iraq followed an occupation that, while being recognized by the Security Council, was not part of a peacebuilding mission. The Kosovo scenario, by contrast, followed years of international administration of the territory as part of a UN-led peacebuilding process. The Constitution of Kosovo was drafted while that territory was under effective international administration, and marked the creation of a new sovereign entity. Iraq's Constitution was drafted in a period of transition out of occupation, with the aim of transforming the system of government. The range of international actors involved is also very different in each case study, with a narrower sphere of influence constituted mainly by the US in Iraq, and a much broader range of interests in Kosovo, where the UN and several other international multilateral institutions were involved. These case studies provide the opportunity to consider the use of consociational power-sharing arrangements, the exercise of international authority, and the over- and under-inclusion of human rights.
5.1. Iraq
The Iraqi constitution-drafting process was defined by the invasion of Iraq and subsequent occupation by the Coalition Provisional Authority (CPA), led by the United States. With many of the other rationales for the US invasion discredited and a civil war developing, the desire to secure something which could concretely be described as an achievement was strong. A constitution could, and in fact for some did, begin to vindicate the entire intervention.Footnote 74 Officially, the entire constitution-drafting process took place under sovereign Iraqi rule, as the CPA had transferred power to the Iraqis in June 2004. But as the process stalled in the face of the 15 August 2005 deadline set by the CPA, the US intervened in a visible way.
The Iraqi constitution-drafting process was characterized by a failure to involve or win the support of Sunni Arabs, and an extremely short deadline for drafting. There were calls to extend the deadline, but the US had made it clear that this would not be acceptable.Footnote 75 Due to the slow progress of the drafting committee, the US government began convening closed-door meetings with Shia and Kurdish political party leaders in a ‘Leadership Council’, during which text was negotiated and the deals necessary to secure an agreement were made.Footnote 76 Sunni members of the committee were largely left out of this process, until last-minute changes attempted to win over their support.Footnote 77 The Constitution was finally approved by referendum on 15 October,Footnote 78 but was largely rejected by Sunni Arabs.Footnote 79
5.2. Kosovo
International actors were heavily involved from day one of the drafting process of Kosovo's Constitution, starting with the identification of potential members of the Constitutional Working Group foreseen by the Ahtisaari Plan.Footnote 80 In accordance with the Plan, three seats on the working group were reserved for the Kosovo Serb community; however, those members did not come to its meetings.Footnote 81 There was some level of international, and especially US, input by facilitating dialogue between the various minority groups; however, the Working Group retained control of the drafting itself.Footnote 82
Key decisions about the internationalized nature of the constitution, however, had already been made. The Ahtisaari Plan foresaw ‘international supervisory structures’ for the initial period of Kosovo's independence, and laid out detailed provisions for its constitution and various aspects of government.Footnote 83 These arrangements were the conditions placed by the international community on Kosovo's independence, and it was understood they were necessary to facilitate recognition of Kosovo by other states.Footnote 84
5.3. Use of consociational power-sharing arrangements
Consociational constitutional arrangements are one way to manage the sharing of power between different ethnic, national, or religious groups within a state. According to Lijphart, consociational democracy is a response to ‘the internal crisis of fragmentation into hostile subcultures’, and is constituted by any ‘deliberate joint effort by the elites to stabilise the system’.Footnote 85 This may take the form of a grand coalition cabinet, co-participation in the executive, or different posts assigned to different groups.Footnote 86 Because states with internal conflict are often characterized by deep cleavages between ethnic and religious groups, consociational power sharing is often considered as the best, or indeed the only, solution in the post-conflict context.Footnote 87 As Lijphart explains, however, the success of consociationalism depends on the elites having the ability to transcend cleavages, and being committed to a cohesive, stable system over political fragmentation.
The internationalized constitutions of Iraq and Kosovo both utilize consociational arrangements, and in both cases some of the above conditions of success are missing, with negative consequences for those constitutional orders. Whether there was any other option is open to debate, but at least more attention should be paid to the distorting effect of international efforts to broker artificial peace among groups that have no underlying commitment to a unified system. Because that artificial peace will be recorded in a constitution intended to last indefinitely, it is also necessary to consider the long-term consequences of cementing those social divisions and creating central governments with extremely weak powers.
5.3.1. Iraq
The initial failure, on behalf of the US in particular, to realize that a constitution in Iraq would be more a Bosnia and Herzegovina or Sudan than a Timor-Leste or Afghanistan, meant that expectations were mismatched to any likely outcome of the process.Footnote 88 At some point, though, the reality became clear and the US did not push for an imposed integrationist model. The consociational constitution was the result of strong Kurdish involvement in the draft, and Sunni absence. The Constitution created a kind of lopsided federalism, with considerable autonomy for the region of Kurdistan, and the right for other governates to organize themselves into a region if they so wish.Footnote 89 A range of different views on Iraq's future as an integrated or divided state have been expressed, illustrated by reference either to rosy examples of new co-operation, or to ongoing violence and distance between groups. As there are abundant examples of both, it seems the situation is too fluid to determine the ultimate fate of consociationalism in Iraq. Some believe dissolution into separate states is inevitable, while others believe that the sharp divisions are in part a Western construction and centralization is the only solution to the conflict.Footnote 90 Some warning may be heeded, however, from Lijphart's conditions for success. It is not clear that Iraqi elites fulfil any of the conditions he posits; particularly lacking is a commitment to the maintenance of the system and to the improvement of its cohesion and stability. Even the Kurds, the strongest supporters (and the biggest winners) of the current constitutional arrangements, may be less invested in stability than in inching towards independence.Footnote 91 It seems there is no joint vision among Iraqi elites as to whether centralization or decentralization is in the best interests of all.Footnote 92 Due to the rushed process which Sunni Arabs did not buy into, it is fitting to describe the Iraqi Constitution, initially at least, as ‘the product of a Kurdish agenda to which the Shiites signed on’.Footnote 93 Today the position is less clear, as the insurgency continues but Sunni Arabs are also actively engaged with the political process, and for now Kurdish politicians do seem committed to the unified Iraq foreseen in the Constitution.Footnote 94 The liberal style of consociationalism adopted in the Constitution, where different regions can choose their relationship with the central government in the future, and where federal government positions are not rigidly based on group identities, provides useful flexibility for the system to evolve.Footnote 95 If Sunni provinces decided to become a region under the Constitution, which they periodically express interest in, the system of government could be said to reflect their chosen vision of participation. So far, however, their expressions of interest have been met with opposition from Baghdad and violence from armed groups.Footnote 96 Other questions left unresolved by the Constitution, such as Article 140 on disputed territories, including Kirkuk, are a continuing basis for violence between Kurdish and central government troops.Footnote 97 As it stands, the Iraqi Constitution remains an incomplete attempt to contrive consociational arrangements among groups with little shared vision of an Iraqi state.
5.3.2. Kosovo
The Kosovo Constitution reflects many lessons learned from the Bosnia and Herzegovina case, where the consociational structures created an extremely weak central government and many problems with executive and legislative decision-making processes.Footnote 98 Nevertheless, the Constitution of Kosovo contains far more rigid consociational arrangements than that of Iraq, even though the biggest minority group of Kosovar Serbs is only an estimated 5–8 per cent of the population.Footnote 99 Twenty of the 120 seats in the Assembly are reserved for minority communities, with at least ten for the Kosovo Serb community, and another ten guaranteed to other minorities, including Roma, Ashkali, Egyptian, Bosnian, Turkish, and Gorani.Footnote 100 Minority presence on government ministries, the Supreme Court, and the office of the Ombudsperson is also provided for in quotas.Footnote 101 Complex voting rules prevent majoritarianism. An amendment to the Constitution requires a two-thirds vote of the Assembly as well as two-thirds of the reserved minority seats.Footnote 102 Laws of ‘vital interest’ similarly require a majority of the Assembly and a majority of votes from the minority communities.Footnote 103 Unlike in Bosnia and Herzegovina, however, the laws characterized as of vital interest are exhaustively listed in the Constitution, which has caused less ‘ethnic blockage’ in the executive and legislative processes than has been experienced in Bosnia and Herzegovina.Footnote 104
The power-sharing provisions form part of the price of independence imposed upon Kosovo by the international community, rather than reflecting an elite power-sharing bargain with the Kosovar Serbs, a fact which has been detrimental to their implementation.Footnote 105 The lack of common interest in forming part of a unified government, even a decentralized one, is evident today. Kosovo's Serbs live primarily in an enclave north of the Ibar river, over which the central government has little or no de facto control.Footnote 106 Since the Constitution came into effect, the divisions between the minority Serbs and the majority Albanian Kosovars have only hardened, with radicalization of the Serbs and high tension over the central government's attempts to assert sovereignty in the north.Footnote 107 In May 2012 the central government announced plans to open its first administrative office in the north.Footnote 108 On 1 June 2012, armed violence occurred between Kosovar Serbs and KFOR troops attempting to dismantle roadblocks near Mitrovica.Footnote 109 As in Iraq, many of the elements of successful consociational democracy are absent. There is no manifest sentiment among Kosovar Serbs that unity is better than fragmentation, and no commitment to the system. The extent of Serbian influence in the north has led some to label the territory as under ‘dual sovereignty’, and the multi-ethnic state envisioned by the Constitution remains an aspiration at this point.Footnote 110 These dynamics are still evolving, as they are closely linked to Kosovar Serb relations with Serbia, and the prospects of EU candidacy for both Serbia and Kosovo.
The consociational arrangements in Kosovo demonstrate both the value and the danger of an internationalized constitution. While the arrangements provide a strong basis for minority involvement without many of the pitfalls seen in Bosnia and Herzegovina, the fact that the power-sharing arrangements have been crafted externally rather than arrived at between the parties may render the Constitution irrelevant. As time passes and Kosovar Serbs continue to exclude themselves from involvement in the political order set out in the Constitution, the value of that Constitution is weakened.
5.4. International authority
Since international involvement in governance and the administration of territory became attached to peacebuilding operations in Cambodia, Bosnia and Herzegovina, and Timor-Leste, there has been much commentary around the ability of such undemocratic operations to pave the way for good governance and lasting peace.Footnote 111 The cases of Kosovo and Iraq show how international actors do have some sensitivity to the implications of international executive rule under a constitution. They also show, however, the limits of that sensitivity. The undemocratic nature of international authority in Iraq and Kosovo left its mark on the resulting constitutions in different ways. The issue of whether international authority has strengthened or doomed rule of law and constitutionalism in those countries remains an open question.
5.4.1. Iraq
While the occupation of Iraq by foreign forces cannot realistically be described as a sensitive use of international authority, there was nevertheless an appreciation that the constitution should be an Iraqi creation. This attitude fits within the ‘light-footprint’ approach also taken in Afghanistan.Footnote 112 When push came to shove, however, it became clear that a light footprint is still a footprint, and US priorities prevailed. The impact of the US deadline of 15 August significantly distorted the constitution-drafting process, and the extent to which it could be regarded as home-grown. Importantly for fostering the rule of law and a culture of constitutionalism, parts of the process were arguably illegal. The draft of the Constitution was submitted for public consultation while negotiations were still ongoing on the text itself, and several changes were made which the public was not informed of before voting in the referendum of 15 October 2005.Footnote 113 Further, the Assembly missed the 15 August deadline set by the TAL and, as the Assembly had not extended it, technically the Assembly should have been automatically dissolved.Footnote 114 Instead the Assembly made a series of ad hoc decisions to allow themselves more time, in ways which were not clearly contemplated by the TAL.Footnote 115 All of these irregularities led to accusations that the constitutional procedures were illegal, and further undermined the legitimacy of the international authority and the Constitution.Footnote 116
Another dynamic of international authority in Iraq which left its legacy in the Constitution was the complete exclusion of voices from the public and civil society. By 2005 internationalized constitutions in Cambodia, Timor-Leste, and Afghanistan had at least undergone the pretence of public participation in the drafting process in one form or another. Among the many important lessons learned from Bosnia and Herzegovina, ten years earlier, was that a blatantly undemocratic constitutional process undertaken amidst ongoing violence was hard to justify except that in that case it ended the war.Footnote 117 In Iraq, where the context of recent occupation reeked of imposition, with none of the ‘benevolence’ sometimes ascribed to UN administrations, little or nothing was done to facilitate local ownership. Civil-society groups were virtually excluded from the process, especially after the negotiations shifted to the informal Leadership Council.Footnote 118 The public consultation exercise was a failure. An outreach unit within the drafting committee was under-resourced and had a mere eight weeks to conduct an exercise that takes months even in rushed circumstances, in an environment of high insecurity. A public questionnaire on the Constitution was distributed in late July, but there was not enough time to process the results, so no written submissions reached the committee before it was unofficially disbanded in August. There was no public education process, and only minimal contributions were received from Kurdistan and Sunni Arab areas. By the time the outreach unit had prepared a report, on 13 August, the draft of the Constitution was relatively settled. In the end the 400,000 submissions received were not taken into account.Footnote 119 The demise of the public participation process, which was required under the TAL, is directly attributable to international authority. It was the tight schedule imposed by the US that caused the drafting committee to be sidelined, also excluding civil-society views, and preventing meaningful public consultation and education from being carried out. The failure to engage a range of voices in the constitutional process is so significant because it was another obstacle to Iraqis, feeling bound by, or invested in, the Constitution. The Iraqi context called for far more sensitivity to this issue, in order to produce a Constitution which the Iraqi people could feel represented a social contract between them and their government.Footnote 120
5.4.2. Kosovo
Until September 2012, the Constitution of Kosovo vested final authority in the ‘International Civilian Representative’ (ICR) to oversee the implementation of the Ahtisaari Plan, which under Article 143(2) of the Constitution ‘shall take precedence over all other legal provisions in Kosovo’. A similar arrangement in Bosnia and Herzegovina's Constitution had been used quite intensively to impose laws and dismiss public officials, going beyond the securing of peace and stability to engineering of the democratic process.Footnote 121 Conscious of the Bosnia and Herzegovina precedent, where many felt that international authority went too far, the ICR in Kosovo showed restraint in the visible exercise of power. The ICR never used his mandate to openly overrule a Kosovar law. Instead, the International Civilian Office (ICO) would get involved at the ministry level before a law was put before Parliament.Footnote 122 The ICR's power was useful leverage to ensure that the views of international actors were taken seriously and included at that stage, to avoid being overruled by the ICR later. Before the International Court of Justice had issued its advisory opinion on Kosovo's declaration of independence in July 2010, the pending opinion was also incentive for the Kosovars to appear as independent of international authority as possible, and to avoid a situation where the ICR might use his powers under the Constitution.Footnote 123
While the use of authority by the ICR and ICO in Kosovo was still less than democratic, keeping a lower profile and avoiding the blunt use of powers under the Ahtisaari Plan avoided the more unfortunate impression of international authority overruling local laws. Also, because national actors were incorporating international views for reasons that included their own self-interest, the chances of implementation were greater and local ownership of the constitutional arrangement was bolstered. International authority in Kosovo, however, did not manage to completely avoid becoming a player in local politics. International actors were involved in daily bargaining with the Kosovar government which was anxious for full independence but still dependent on outside help in many ways.Footnote 124
5.5. Over-inclusion/under-inclusion of human rights
The issue of human rights in internationalized constitutions remains contested, even though the importation of such standards is one of the fundamental rationales behind international involvement. On the one hand there is now general consensus on the inclusion of a bill of rights in any internationalized constitution, as part of the ‘standard script of peace-building’.Footnote 125 On the other hand is the risk that such an automatic inclusion of a common set of international standards may be insufficient, or even counterproductive, in guaranteeing those rights. Treating the bill of rights as a given, as a kind of precondition of international involvement in drafting a constitution, is understandable but there is a need for more serious consideration of the consequences. Choudry points out that the effectiveness of a bill of rights may be undermined by politicized judiciaries, constitutional underenforcement, and the ex post nature of judicial review.Footnote 126 Feldman similarly elaborates on how human rights standards may be ignored by elites who never intended to enforce them, discrediting the entire constitutional order.Footnote 127 To be effective, Feldman argues, human rights standards should be adopted by local elites when they believe it is in their interests to do so.Footnote 128 The issue of human rights is a potent example of the inadequacy of a purely textual approach to constitution drafting, which creates institutions but cannot by itself create a culture of respect for human rights.
5.5.1. Iraq
Iraq typifies the dynamics of over- and under-inclusion of human rights. Human rights advocates, particularly women's groups in Iraq, were disappointed with the final document.Footnote 129 There is a bill of rights within the Constitution with a range of human rights protections including civil and political as well as economic social and cultural rights.Footnote 130 The inclusion of these rights was seen as reassuring by those concerned to counterbalance the effect of other, inevitably religious, provisions in the Constitution.Footnote 131 There is ambiguity, however, in how the human rights provisions interact with other parts of the Constitution, putting the effectiveness of those rights in question. Under the Constitution Islam is the official religion of the state and is a source of legislation, and the judges of the Federal Supreme Court shall include experts in Islamic jurisprudence.Footnote 132 Under Article 41, ‘Iraqis are free in their commitment to their personal status according to their religions, sects, belief, or choices, and this shall be regulated by law’. While it may sound relatively innocuous, this provision was a major sticking point in negotiations and was strongly opposed by the Kurds and by women's advocacy groups.Footnote 133 Matters of personal status include inheritance, marriage, custody, maintenance, and divorce. Leaving these areas for regulation by religious law, without a statement that such laws must conform to other constitutional guarantees of human rights, could lead to laws which discriminate against women, contrary to the human rights included in the Constitution.Footnote 134
These unresolved questions will depend on future legislation, as well as judicial interpretation of the Constitution.Footnote 135 Article 41 has not been implemented and therefore Iraq's 1959 Personal Status Law continues to apply. No serious attempt has been made to bring a comprehensive new Personal Status Law into force; only Kurdistan has brought in amendments in 2008, which improved the situation of women.Footnote 136 As the 1959 law is relatively progressive by regional standards, there is reluctance to revise it and risk backtracking on the rights already secured. For now, therefore, Article 41 remains an open question and changing the Personal Status Law is not on the political agenda.Footnote 137 The question of how personal status issues relate to other human rights provisions in the Constitution will then come down to constitutional interpretation by the judiciary. As for any constitution, subsequent interpretation determines much of how the provisions come to life in an everyday context. The Iraqi Constitution is by no means unique in containing vague or seemingly contradictory provisions, but for those who wanted to seize the opportunity to secure solid human rights protections, the risk of leaving it up to later laws and judgments is unsatisfactory. Some promise can be found, however, in the approach taken by the Federal Supreme Court in cases so far, for example a ruling that a parliamentarian could not be criminally charged for visiting Israel, as the Constitution guarantees freedom of travel.Footnote 138
As it stands, the Constitution of Iraq shows that the inclusion of the standard bill of rights in a Constitution is not sufficient to guarantee the protection of those rights. In the future more attention should be paid to the context of the Constitution, especially potentially conflicting provisions, although, as pointed out by Laila Al-Zwaini, perhaps it was not lack of attention that resulted in the current text but a conscious bargain in which human rights were traded away. Footnote 139 In that case, as Feldman warns, we should beware ‘the bad conscience of premature rights triumphalism’.Footnote 140
5.5.2. Kosovo
Kosovo's Constitution contains even stronger human rights protections than Iraq's. Chapter II contains 35 articles on Fundamental Rights and Freedoms, while Chapter III concerns the Rights of Communities and Their Members, largely reproducing parts of the Ahtisaari Plan. Under Article 22, a range of human rights instruments are declared to be directly applicable in Kosovo, and in case of conflict they have priority over other laws or government acts. Under Article 53, the rights guaranteed in the Constitution ‘shall be interpreted consistent with the court decisions of the European Court of Human Rights’. As in Iraq, the blanket incorporation of human rights provisions takes on an artificial quality as they have been included in order to ensure conformity with the Ahtisaari Plan and to satisfy international actors, rather than necessarily reflecting the determination of a new state to be a beacon of human rights protection in the region. For example, Article 37 states that ‘based on free will, everyone enjoys the right to marry and the right to have a family as provided by law’. Read together with Article 24(2) which forbids discrimination, including on the grounds of sexual orientation, the Constitution arguably protects same-sex marriage.
The very progressive human rights provisions in the Constitution, especially the extensive protections granted to minority groups, risk being seen as outside impositions, an impression which is strengthened by the lack of implementation.Footnote 141 The 2011 US State Department report states that during that year, ethnic minorities faced ‘varied levels of institutional and societal discrimination, in areas such as employment, education, social services, language use, freedom of movement, IDPs’ right to return, and other basic rights’.Footnote 142 The human rights protections in Kosovo, and particular protection of minority rights, raise a kind of chicken – egg dilemma about whether these legal guarantees can help foster an environment of respect, or whether genuine will to respect human rights is required before legal guarantees will be of any use.Footnote 143 Any evaluation also depends on the measurement used. If, in the post-conflict context, the minimum aim is to prevent the resumption of war, then it can be argued the legal framework has been successful so far. Reports continue, however, of isolated violent incidents and the prospect of conflict has not disappeared.Footnote 144 If the aim is to enliven and nurture a vibrant culture of human rights, there is little evidence to suggest that objective is being met.
The example of Kosovo demonstrates the limits of a constitution as a document; the words contained within it are not always self-fulfilling. The focus in a constitution on building institutions and structures of government ignores the important role played by ‘the governed’ in bringing that text to life.Footnote 145 The social and political relationships between individuals, groups, and institutions are at least as important as the constitutional provisions. In terms of guidance for future internationalized constitutions, Kosovo reinforces Iraq's warning not to include human rights in a mere tick-box fashion. Strong human rights provisions have the potential to provide a legal framework of respect and the rule of law. There are many opportunities, however, for that aim to be defeated. In Kosovo the situation continues to evolve. The chance remains to develop a vibrant human rights culture based on strong constitutional guarantees, but there is also the risk that the entire framework is rendered meaningless through non-implementation and disrespect.
6. Conclusion
Internationalized constitutions reflect a convergence of political will and capacity of international actors to have an impact in a given situation. Fulfilling this agenda, however, is difficult in practice. The very nature of international action as external, with varying degrees of imposition, threatens to undermine the objectives. This article has argued that internationalized constitutions are not inherently legitimate or illegitimate, but have the potential to be either in any given situation. For this reason there is a need to develop and use accumulated expertise in this field, while also crucially remaining sensitive to local context. While they reinforce the importance of constitutional documents themselves as indicators of sovereignty, internationalized constitutions simultaneously legitimize a high degree of external influence in the creation and even implementation of those documents. Internationalized constitutions are creating new relationships between domestic and international legal regimes, and shedding rigid models in favour of transitional provisions and interim arrangements.
Internationalized constitutions offer rich material for evaluating how the everyday practices of international institutions and states are shaping international law before our eyes. If Kosovo and Iraq are to serve as examples for future internationalized constitutions, Iraq's lesson may be ‘here is what not to do’, while Kosovo's would be ‘here is what can go wrong even if you do it right’. As case studies they provide many practical lessons for future situations, demonstrating the importance of both the process and substance of constitution making, and its limitations. As a document the constitution is just one piece of the puzzle, and in the ongoing process of creating a government and rule of law, it is not determinative of either success or failure. The nature and methods of involvement, however, still make an impact on the direction taken, and can help or hinder the realization of the rationales behind international action.
An international order where some states are created by virtue of facilitated self-determination, with high dependency on outside support, changes what it means to be a sovereign state and the criteria for recognition as such. By facilitating the self-determination of peoples, international actors distort both the process and the outcome. Recognition of this fact should inspire greater reflection and transparency about the role played by international actors, in order to allow the cross-cutting dilemmas to be addressed head-on. In the midst of other post-conflict peacebuilding solutions, they are at risk of becoming one more task to complete, without meaningful regard to the particularities of each context.
