Constitutional engineering is a complicated practice, and much less is known about the relationship between constitutionalism and democracy than many are willing to admit. A cursory look at the political science literature reveals that constitutional design has only a moderate to small impact on the stability of a democratic regime. This is not to suggest that constitutionalism is altogether irrelevant, but the findings of different social scientists suggest that we should be humbler and more realistic about the role of constitutionalism and institutions in fostering peace, democracy, and development. Anna Saunders's article, “Constitution-Making as a Technique of International Law: Reconsidering the Post-War Inheritance,” provides an important contribution to such a realistic reassessment of constitutionalism. Nevertheless, her critique of constitutional assistance needs to be developed further, examining the limitations of constitutional law in itself as a promoter of peace and democracy, rather than just the fact that material and economic questions are often neglected in international constitution-making. A key question is not so much whether and how to create a better constitutional design that would integrate economic and structural issues more openly, but, more fundamentally, whether traditional constitutional approaches are in fact appropriate for the promotion of peace, democracy, and development in post-conflict settings. In this essay, I argue for a democratic and experimentalist form of constitutionalism, which is often at odds with the core ideas of traditional constitutionalism, namely, rigidity and entrenchment.
{"title":"The False Promise of Constitutionalism","authors":"Bojan Bugarič","doi":"10.1017/aju.2023.44","DOIUrl":"https://doi.org/10.1017/aju.2023.44","url":null,"abstract":"Constitutional engineering is a complicated practice, and much less is known about the relationship between constitutionalism and democracy than many are willing to admit. A cursory look at the political science literature reveals that constitutional design has only a moderate to small impact on the stability of a democratic regime. This is not to suggest that constitutionalism is altogether irrelevant, but the findings of different social scientists suggest that we should be humbler and more realistic about the role of constitutionalism and institutions in fostering peace, democracy, and development. Anna Saunders's article, “Constitution-Making as a Technique of International Law: Reconsidering the Post-War Inheritance,” provides an important contribution to such a realistic reassessment of constitutionalism. Nevertheless, her critique of constitutional assistance needs to be developed further, examining the limitations of constitutional law in itself as a promoter of peace and democracy, rather than just the fact that material and economic questions are often neglected in international constitution-making. A key question is not so much whether and how to create a better constitutional design that would integrate economic and structural issues more openly, but, more fundamentally, whether traditional constitutional approaches are in fact appropriate for the promotion of peace, democracy, and development in post-conflict settings. In this essay, I argue for a democratic and experimentalist form of constitutionalism, which is often at odds with the core ideas of traditional constitutionalism, namely, rigidity and entrenchment.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135107715","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I want to explore a tension in Anna Saunders's rich argument because it confronts much scholarship critical of what we can think of as the liberal democratic constitutional project (LDCP), and which has its roots in debates in the late nineteenth and early twentieth centuries sparked by the Marxist critique of capitalism. The tension is between the following two claims that she makes in her article, “Constitution-Making as a Technique of International Law: Reconsidering the Post-war Inheritance.” First, LDCP focuses on the formal dimension of institutional design and thereby fails to pay attention to a significant dimension of a constitutional order: its material basis. In this case, the remedy might seem simple: “Pay attention!” The second claim, however, is that the formal structure of LDCP is formal in name only. It has its own material basis in the ideology of neoliberalism. If, then, one is concerned as Saunders is about a material basis that reproduces social inequality and economic exploitation, the remedy is to abandon LDCP. My exploration is through Saunders's attention to the divergent analyses of the Nazi state set out by Franz Neumann and Ernst Fraenkel in the 1930s as the launching pad for her investigation of the structure of thought that underpins LDCP and her suggestion that Fraenkel is responsible for the juridical turn in LDCP. I start with some biography, in part inspired by the way in which Saunders weaves the personal and the political into her narrative. It helps to show that the turn is not in itself problematic and, as I conclude, that material questions need to be posed and answered within the framework of a well-designed constitutional order.
{"title":"Franz Neumann and Ernst Fraenkel on the Liberal Democratic Constitutional Project","authors":"David Dyzenhaus","doi":"10.1017/aju.2023.45","DOIUrl":"https://doi.org/10.1017/aju.2023.45","url":null,"abstract":"I want to explore a tension in Anna Saunders's rich argument because it confronts much scholarship critical of what we can think of as the liberal democratic constitutional project (LDCP), and which has its roots in debates in the late nineteenth and early twentieth centuries sparked by the Marxist critique of capitalism. The tension is between the following two claims that she makes in her article, “Constitution-Making as a Technique of International Law: Reconsidering the Post-war Inheritance.” First, LDCP focuses on the formal dimension of institutional design and thereby fails to pay attention to a significant dimension of a constitutional order: its material basis. In this case, the remedy might seem simple: “Pay attention!” The second claim, however, is that the formal structure of LDCP is formal in name only. It has its own material basis in the ideology of neoliberalism. If, then, one is concerned as Saunders is about a material basis that reproduces social inequality and economic exploitation, the remedy is to abandon LDCP. My exploration is through Saunders's attention to the divergent analyses of the Nazi state set out by Franz Neumann and Ernst Fraenkel in the 1930s as the launching pad for her investigation of the structure of thought that underpins LDCP and her suggestion that Fraenkel is responsible for the juridical turn in LDCP. I start with some biography, in part inspired by the way in which Saunders weaves the personal and the political into her narrative. It helps to show that the turn is not in itself problematic and, as I conclude, that material questions need to be posed and answered within the framework of a well-designed constitutional order.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135105425","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Unlike the International Law Association (ILA) and the Institut de Droit International (the Institut), the International Law Commission (the Commission, or ILC) is not 150 years old. Established in 1948, the Commission is exactly half the age of the two codification bodies to which this Symposium is dedicated and is celebrating its seventy-fifth anniversary in 2023. 1 Like its older cousins, the Commission is charged with the codification and progressive development of international law. Among the many differences between the Commission and its older cousins, one that stands out and that provides the lens for this essay, is its close relationship to states. Although a comparison of both the ILA and the Institut with the younger, but apparently more “authoritative” body, the Commission, is worthwhile, 2 due to space limitations, I focus my comments on the Institut and the Commission. This essay will home in on the impact of the relationship of these two bodies with states and argues that this relationship affects, to some extent , the work of the relevant bodies, both in terms of what topics they may address and how they address them. This broad conclusion, which is necessarily limited by space considerations, is substantiated on the basis of the membership and outputs of the two bodies.
与国际法协会(ILA)和国际法学会(institute de Droit International)不同，国际法委员会(Commission，简称ILC)的历史还不到150年。该委员会成立于1948年，其年龄正好是本专题讨论会致力于的两个编纂机构的一半，并将于2023年庆祝其75周年。1 .同其前身一样，委员会负责编纂和逐步发展国际法。在欧盟委员会与其前辈们之间的诸多差异中，有一个最为突出，并为本文提供了视角，那就是它与各国的密切关系。虽然将国际法研究所和研究所同较年轻但显然更“权威”的机构委员会进行比较是值得的，但由于篇幅限制，我的评论主要集中在研究所和委员会上。本文将集中讨论这两个机构与国家之间关系的影响，并认为这种关系在某种程度上影响着相关机构的工作，无论是就它们可能处理的主题而言，还是就它们如何处理这些主题而言。这一必然受到空间考虑限制的广泛结论是根据这两个机构的成员和产出得到证实的。
{"title":"The International Law Commission, the Institut, and States","authors":"Dire Tladi","doi":"10.1017/aju.2023.38","DOIUrl":"https://doi.org/10.1017/aju.2023.38","url":null,"abstract":"Unlike the International Law Association (ILA) and the Institut de Droit International (the Institut), the International Law Commission (the Commission, or ILC) is not 150 years old. Established in 1948, the Commission is exactly half the age of the two codification bodies to which this Symposium is dedicated and is celebrating its seventy-fifth anniversary in 2023. 1 Like its older cousins, the Commission is charged with the codification and progressive development of international law. Among the many differences between the Commission and its older cousins, one that stands out and that provides the lens for this essay, is its close relationship to states. Although a comparison of both the ILA and the Institut with the younger, but apparently more “authoritative” body, the Commission, is worthwhile, 2 due to space limitations, I focus my comments on the Institut and the Commission. This essay will home in on the impact of the relationship of these two bodies with states and argues that this relationship affects, to some extent , the work of the relevant bodies, both in terms of what topics they may address and how they address them. This broad conclusion, which is necessarily limited by space considerations, is substantiated on the basis of the membership and outputs of the two bodies.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135357803","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay examines the activities of the Institute of International Law (the Institute or IIL) during its 150 years of existence, dealing directly or indirectly with the colonial phenomenon. It distinguishes between two major periods of roughly equal length: first the period between the years 1873 and 1945; and second, the period from 1945 to the present. These correspond to two important periods of international relations: the second wave of colonial expansion and its remnants and the regime of mandates following World War I, on the one hand, and the era of the United Nations Charter, the promotion of human rights, self-determination, and decolonialization, on the other hand.
{"title":"The Institute of International Law and the Colonial Phenomenon","authors":"Georges Abi-Saab","doi":"10.1017/aju.2023.35","DOIUrl":"https://doi.org/10.1017/aju.2023.35","url":null,"abstract":"This essay examines the activities of the Institute of International Law (the Institute or IIL) during its 150 years of existence, dealing directly or indirectly with the colonial phenomenon. It distinguishes between two major periods of roughly equal length: first the period between the years 1873 and 1945; and second, the period from 1945 to the present. These correspond to two important periods of international relations: the second wave of colonial expansion and its remnants and the regime of mandates following World War I, on the one hand, and the era of the United Nations Charter, the promotion of human rights, self-determination, and decolonialization, on the other hand.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":"68 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135358382","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Anna Saunders's article, “Constitution-Making as a Technique of International Law: Reconsidering the Post-war Inheritance,” is an important addition to the literature that problematizes the idea of international constitution-making. At the heart of Saunders's critique of international constitution making—defined as the involvement of international institutions in national constitution-making processes—is the point that the parameters of what constitutes “local ownership” of the constitution-making process is detached from debates on rethinking neoliberal economic structures and material interests. As a result, constitutions in post-conflict societies fail to speak to the socio-economic realities of a people and, most importantly, diminish their agency to envision alternatives. Saunders offers a detailed historical account of why such failure, or what she refers to as “selective technicity,” has become standard practice, and then goes further to stress the imperative of reimagining the vocabulary of what constitutes “local ownership” in the context of meaningful societal transformation. In this essay, I extend Saunders's thesis to argue that if the international constitution-making process does not shed its Eurocentric gaze, we will be unable to proffer sustainable suggestions to make the process responsive to the realities of a people.
{"title":"The (Not So Hidden) Elephant in the Room: Confronting International Constitution-Making's Eurocentric Gaze","authors":"Babatunde Fagbayibo","doi":"10.1017/aju.2023.40","DOIUrl":"https://doi.org/10.1017/aju.2023.40","url":null,"abstract":"Anna Saunders's article, “Constitution-Making as a Technique of International Law: Reconsidering the Post-war Inheritance,” is an important addition to the literature that problematizes the idea of international constitution-making. At the heart of Saunders's critique of international constitution making—defined as the involvement of international institutions in national constitution-making processes—is the point that the parameters of what constitutes “local ownership” of the constitution-making process is detached from debates on rethinking neoliberal economic structures and material interests. As a result, constitutions in post-conflict societies fail to speak to the socio-economic realities of a people and, most importantly, diminish their agency to envision alternatives. Saunders offers a detailed historical account of why such failure, or what she refers to as “selective technicity,” has become standard practice, and then goes further to stress the imperative of reimagining the vocabulary of what constitutes “local ownership” in the context of meaningful societal transformation. In this essay, I extend Saunders's thesis to argue that if the international constitution-making process does not shed its Eurocentric gaze, we will be unable to proffer sustainable suggestions to make the process responsive to the realities of a people.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":"158 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135104874","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Institut de Droit International (IDI) and the International Law Association (ILA) have bequeathed complex and contradictory legacies to the Americas. This essay explores both the resonances and the dissonances that the formation of the IDI, and to a lesser extent, the ILA, had in the institutionalization of the modern discipline of international law in the Americas. On the one hand, the IDI's establishment as an elite Eurocentric organization with a missionary imperial approach to the promotion and reform of international law, generated resonances across the Americas, inspiring the creation of the American Institute of International Law (AIIL). On the other hand, the AIIL emerged as a reaction to the IDI, insofar as the former promoted juridical values based on the idea of American international law and a distinctive sense of U.S. and continental legal exceptionalism. The essay argues that the institutionalization of international law in the Americas was both inspired by the Eurocentric imperial and elitist legal approach promoted by the IDI, and the desire to forge a distinctive Western Hemispheric counterpart: a continental American international law.
{"title":"The IDI, The ILA, and their Impact on the Institutionalization of International Law in the Americas: Resonances and Dissonances","authors":"Juan Pablo Scarfi","doi":"10.1017/aju.2023.37","DOIUrl":"https://doi.org/10.1017/aju.2023.37","url":null,"abstract":"The Institut de Droit International (IDI) and the International Law Association (ILA) have bequeathed complex and contradictory legacies to the Americas. This essay explores both the resonances and the dissonances that the formation of the IDI, and to a lesser extent, the ILA, had in the institutionalization of the modern discipline of international law in the Americas. On the one hand, the IDI's establishment as an elite Eurocentric organization with a missionary imperial approach to the promotion and reform of international law, generated resonances across the Americas, inspiring the creation of the American Institute of International Law (AIIL). On the other hand, the AIIL emerged as a reaction to the IDI, insofar as the former promoted juridical values based on the idea of American international law and a distinctive sense of U.S. and continental legal exceptionalism. The essay argues that the institutionalization of international law in the Americas was both inspired by the Eurocentric imperial and elitist legal approach promoted by the IDI, and the desire to forge a distinctive Western Hemispheric counterpart: a continental American international law.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135357296","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this essay I reflect upon whether and how the recent international recognition of the right to a healthy environment might––or might not––provide greater support for efforts to define and protect the rights of what one could term “law's hidden subjects,” namely future generations and nature. Although there are several examples of rights-based regimes that aim to protect future generations and nature, few would disagree that these hidden subjects require better legal protection, and that thoroughgoing reform of existing human rights law is overdue. I argue that the international recognition of a human right to a healthy environment might contribute less to such reforms than what one would have intuitively expected. One reason for this is because the formulation of the right does not provide anything new in terms of more comprehensive recognition and protection of rights of nature and future generations. Although it is an important symbolic event that signifies broad consensus on the importance of rights-based environmental protection, many domestic and regional legal regimes already protect future generations, while some even offer innovative rights of nature provisions. At best, UN General Assembly Resolution 76/300 merely reinforces the status quo ante.
{"title":"The Right to a Healthy Environment and Law's Hidden Subjects","authors":"Louis J. Kotzé","doi":"10.1017/aju.2023.27","DOIUrl":"https://doi.org/10.1017/aju.2023.27","url":null,"abstract":"In this essay I reflect upon whether and how the recent international recognition of the right to a healthy environment might––or might not––provide greater support for efforts to define and protect the rights of what one could term “law's hidden subjects,” namely future generations and nature. Although there are several examples of rights-based regimes that aim to protect future generations and nature, few would disagree that these hidden subjects require better legal protection, and that thoroughgoing reform of existing human rights law is overdue. I argue that the international recognition of a human right to a healthy environment might contribute less to such reforms than what one would have intuitively expected. One reason for this is because the formulation of the right does not provide anything new in terms of more comprehensive recognition and protection of rights of nature and future generations. Although it is an important symbolic event that signifies broad consensus on the importance of rights-based environmental protection, many domestic and regional legal regimes already protect future generations, while some even offer innovative rights of nature provisions. At best, UN General Assembly Resolution 76/300 merely reinforces the status quo ante.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135783684","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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{"title":"Introduction to the Symposium on Anna Saunders, “Constitution-Making as a Technique of International Law: Reconsidering the Post-War Inheritance”","authors":"Gráinne de Búrca","doi":"10.1017/aju.2023.39","DOIUrl":"https://doi.org/10.1017/aju.2023.39","url":null,"abstract":"An abstract is not available for this content. As you have access to this content, full HTML content is provided on this page. A PDF of this content is also available in through the ‘Save PDF’ action button.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135105071","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
How do international financial institutions such as the World Bank and the International Monetary Fund influence constitution-making processes? In this essay on Anna Saunders's “Constitution-Making as a Technique of International Law: Reconsidering the Post-war Inheritance,” I argue that the material dimensions of constitution-making are profoundly influenced by the discursive environment that institutions like the World Bank help create for political elites. I show how these institutions operate in opaque ways that are difficult to capture in the results of that constitutional process but serve to facilitate, expand, or contract the options available to constitution-makers to engage with material questions, especially those that involve historic injustice. My argument adds nuance to Saunders's claim that constitution-making traditions display a “relative separation from projects of global economic ordering.” Drawing on an example that Saunders uses, this essay engages with how an international financial institution—the World Bank—acted in a facilitative modality and influenced constitutional history and the current practices of land reform in South Africa since its negotiated transition in 1994. I then show how international financial institutions acted in a more prescriptive modality during the constitution-making processes in Hungary. I choose these countries as examples due to their canonical status for studying the influence of international assistance for constitution-making in the post-1991 moment. What these examples show is that while international financial institutions can guide “post-sovereign” constitution-making states toward better integration into the global economic framework, the sustainability of their constitutional arrangements often depends on broader domestic consensus.
{"title":"Shaping Sovereignties: The Role of International Financial Institutions in Constitution-Making","authors":"Gaurav Mukherjee","doi":"10.1017/aju.2023.42","DOIUrl":"https://doi.org/10.1017/aju.2023.42","url":null,"abstract":"How do international financial institutions such as the World Bank and the International Monetary Fund influence constitution-making processes? In this essay on Anna Saunders's “Constitution-Making as a Technique of International Law: Reconsidering the Post-war Inheritance,” I argue that the material dimensions of constitution-making are profoundly influenced by the discursive environment that institutions like the World Bank help create for political elites. I show how these institutions operate in opaque ways that are difficult to capture in the results of that constitutional process but serve to facilitate, expand, or contract the options available to constitution-makers to engage with material questions, especially those that involve historic injustice. My argument adds nuance to Saunders's claim that constitution-making traditions display a “relative separation from projects of global economic ordering.” Drawing on an example that Saunders uses, this essay engages with how an international financial institution—the World Bank—acted in a facilitative modality and influenced constitutional history and the current practices of land reform in South Africa since its negotiated transition in 1994. I then show how international financial institutions acted in a more prescriptive modality during the constitution-making processes in Hungary. I choose these countries as examples due to their canonical status for studying the influence of international assistance for constitution-making in the post-1991 moment. What these examples show is that while international financial institutions can guide “post-sovereign” constitution-making states toward better integration into the global economic framework, the sustainability of their constitutional arrangements often depends on broader domestic consensus.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135105422","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In her article “Constitution-Making as a Technique of International Law: Reconsidering the Post-war Inheritance,” Anna Saunders focuses on constitution-making as an international practice of the past three decades and suggests that its “epistemic boundaries”—namely, the separation between the formal and material dimensions of constitution-making and the latter's exclusion from contemporary constitution-making assistance—were primarily established by scholarly work on constitution-making in the post-war era. Saunders explicitly acknowledges that her account is not the only possible history of constitution-making assistance. In this essay, I add a different layer to that history, focusing on the UN Transition Assistance Group (UNTAG) in Namibia. UNTAG is often considered the first instance of international constitution-making assistance, a practice that is generally understood to have emerged after the end of the Cold War. However, UNTAG's mandate, including its constitution-making assistance component, was in fact conceived many years before its actual deployment, dating back to the 1960s and 1970s. The essay shows that UN constitution-making assistance pre-dates the end of the Cold War and is linked to UN efforts to forge modern nation-states in the context of decolonization. I argue that this early case of constitution-making practice was an important blueprint for further iterations of international constitution-making assistance, not least because of the continuous involvement of individual international civil servants. Lastly, the case of Namibia is significantly different from the cases that inspired scholarly work in the post-war era, and we might ask to what extent the post-war inheritance affected this early international practice. I end with a brief reflection on Saunders's call to address the material dimension of constitution-making and caution against overemphasizing substantive questions in constitution-making assistance.
{"title":"Beyond Peace and Security: The UN Transition Assistance Group in Namibia and its Importance for Contemporary Constitution-Making","authors":"Hannah Birkenkötter","doi":"10.1017/aju.2023.43","DOIUrl":"https://doi.org/10.1017/aju.2023.43","url":null,"abstract":"In her article “Constitution-Making as a Technique of International Law: Reconsidering the Post-war Inheritance,” Anna Saunders focuses on constitution-making as an international practice of the past three decades and suggests that its “epistemic boundaries”—namely, the separation between the formal and material dimensions of constitution-making and the latter's exclusion from contemporary constitution-making assistance—were primarily established by scholarly work on constitution-making in the post-war era. Saunders explicitly acknowledges that her account is not the only possible history of constitution-making assistance. In this essay, I add a different layer to that history, focusing on the UN Transition Assistance Group (UNTAG) in Namibia. UNTAG is often considered the first instance of international constitution-making assistance, a practice that is generally understood to have emerged after the end of the Cold War. However, UNTAG's mandate, including its constitution-making assistance component, was in fact conceived many years before its actual deployment, dating back to the 1960s and 1970s. The essay shows that UN constitution-making assistance pre-dates the end of the Cold War and is linked to UN efforts to forge modern nation-states in the context of decolonization. I argue that this early case of constitution-making practice was an important blueprint for further iterations of international constitution-making assistance, not least because of the continuous involvement of individual international civil servants. Lastly, the case of Namibia is significantly different from the cases that inspired scholarly work in the post-war era, and we might ask to what extent the post-war inheritance affected this early international practice. I end with a brief reflection on Saunders's call to address the material dimension of constitution-making and caution against overemphasizing substantive questions in constitution-making assistance.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135106270","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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