The Maidan revolution triggered a political reform process in Ukraine with significant achievements, but some of the required constitutional changes are yet to be made. At the same time, the armed conflict in the Donbas led to the conclusion of the Minsk Agreements under the auspices of the OSCE and the Normandy Quartet. As part of the Agreements, the Ukrainian government committed to constitutional reform to implement decentralization of power and to enter into an inclusive national dialogue. To date, the Agreements have not been implemented fully by either side, and have raised concerns of unconstitutionality. The aim of the paper is to examine the interplay between the internationalised conflict resolution effort and the broader constitutional reform process in Ukraine. As such, the paper highlights the competing demands and irreconcilable features of the two processes, and demonstrates the risks of premature constitutional reform commitments in conflict resolution settings.
This paper looks at Libya’s constitution-making process (2013 – 2017) and explains its role in the country’s failed post-revolutionary state-building efforts. In the aftermath of Libya’s revolution, political leaders and policy makers saw an opportunity to ‘rebuild’ the Libyan state from scratch via constitution making. However, rather than starting with a ‘clean slate’, the Libyan constitution-making process was deeply entrenched in the country’s complex political and social structures, both past and present. This empirical study describes the actors who were engaged in the constitution-making process and the ways in which the law, including constitutional law-making, was actually used and put to work in a post-conflict scenario. It underlines that when societal conflict is high and the political landscape deeply divided, a constitution-making process is unlikely to solve conflicts through a redistribution of power or resources or the elaboration of a unitary vision for a state.
In the past 25 years, over 70 countries have adopted or amended their constitution in the context of an armed conflict or a conflict resolution process. Increasingly, such foundational changes are made with active support from external actors, such as intergovernmental organizations or foreign states. This article explains how patterns of external support for conflict-related constitution-writing influences substantive constitutional outcomes, with a specific focus on decisions about federalism and territorial secession. Leveraging a new dataset on the involvement of external actors in conflict related constitutional design, it demonstrates that increased external involvement in constitutional processes, particularly involvement from both greater numbers of international organizations and of foreign states with federal systems, is associated with a greater likelihood of adoption of new federal arrangements in the constitution, or significant changes to the existing structures.
Peace-making to end an internal armed conflict often requires constitutional change. When such change takes place within an existing constitutional framework, unconstitutionality challenges can arise as the implementation of a peace agreement may require departures from existing constitutional provisions. This tension raises the issue of whether the requirements of peace-making and constitutional principles can be reconciled without risking the achievement of peace or the constitutionality of the constitutional order. This paper develops a theoretical framework within which this reconciliation can be accommodated, by conceptualising peace as the absence of violence and as an aspect of the rule of law. Drawing on Fuller’s distinction between the moralities of duty and aspiration, it then presents achieving peace as a constitutional duty and achieving the rule of law as a constitutional aspiration.
External actors involved in post-conflict constitutional transitions increasingly cite the relevance of international law. ‘Soft’ and ‘hard’ international legal norms provide that both the process and substance of constitutional change should be democratic, inclusive, participatory, locally-owned and follow the existing constitution. However, another set of more fundamental international legal norms, including sovereignty, the rules of international legal personality and UN law tend to prioritise security and allocate power not to ‘the people’ but rather incumbent governments, international organisations–in particular the UN Security Council–and groups capable of exercising military control. This paper will examine from a critical perspective how international law practically influences post-conflict constitutional transitions and the extent to which international law may itself contribute to such transitions regularly failing to live up to democratic expectations.