CTN blog: "External assistance and constitution-making"

By Prof Cheryl Saunders

The modalities and effectiveness of external assistance to national projects for constitution-making, often provided in the aftermath of conflict, has been a recurrent theme in 2018. It has echoed debates regarding related forms of assistance, namely, peacemaking and peacebuilding, and transitional justice.

At its best, external assistance offers additional resources to support constitution-making; actors with a degree of impartiality and distance from internal tensions; and comparative knowledge and experience about the process and substance of constitutional change. Individually or collectively, these attributes can be useful for national constitutional projects, depending on context. There are limits to what can and should be done under the guise of external assistance, however. To perform their critical internal functions, constitutions need to respond to local needs and to be given effect by local actors, held to account by the people of the state concerned.

Exactly where these limits lie is the subject of some disagreement, in the field and in the literature. The tension is reflected in the terms of the current Guidance Note of the Secretary-General on United Nations Assistance to Constitution-making Processes. The Guidance Note stresses the need to ‘ensure local ownership’ of what it describes as a ‘sovereign national process’, which ‘to be successful must be nationally owned and led’. At the same time, however, the Guidance Note commits the UN to ‘consistently promote compliance of constitutions with international human rights and other norms and standards’. Over the decade since the current UN Guidance Note was written it has become clear that the commitment to press international norms and standards applies to both the process of constitution making and the substance of the constitutions that emerge from it. Compliance by states remains voluntary in principle, but is pushed hard in practice.

Concerns about the success of constitutional projects, particularly in the difficult conditions associated with internal conflict, have been realised in recent years. Arguably, in at least some cases, failure is attributable, in whole or in part, to a shortfall in a sense of local ownership.

The tension reflected in the UN Guidance Note has its roots in the assumptions that accompanied the end of the cold war, that liberal democracy, in the forms familiar at the end of the 20th century, was poised to spread across the globe. Thirty years later, this prediction appears flawed or, at least, premature. What comes next, however, is far from clear. The picture is further complicated by the gradual replacement of what, for a brief period, was a uni-polar world, with one in which other global actors, with no interest in the spread of liberal democracy, have growing power.

Out of all this comes an urgent agenda for reflection and deliberation, which will shape at least part of the work of ConTransNet in 2019:

  1. What does ‘local ownership’ involve, in relation to constitution making and change? Does it refer (only) to local buy-in, in contrast to international insistence? Or does it (also) import assumptions about the inclusiveness of a constitution building project? In the latter case, how are these two understandings reconciled? And how are they affected, in any event, by parallel concerns, in the literature and in practice, about the balance between popular involvement in a constitution making project and elite commitment to constitutional implementation?
  2. To what extent and in what sense are international norms and standards themselves locally owned, as the claim for universalism assumes? Could commitment to them be strengthened by drawing on local sources and, if so, how? For instance, could international norms and standards be grounded in or reconciled with national history in order to show that these are not external impositions? What role does constitutionalisation play in making norms and standards that are internationally shared effective on the ground?
  3. How effective is external pressure, in the form of carrots or sticks, in making constitutions work effectively for their people? What are the different ways in which external pressure is exerted? Does it make a difference if the external actors are neighbours and, if so, under what conditions? How are the answers to these questions affected by the emergence of new international actors, with different interests and expectations?