External actors involved in post-conflict constitutional transitions increasingly cite the relevance of international law. International legal norms provide that the process and substance of constitutional change should be democratic, inclusive, participatory, locally-owned and constitutional. Yet constitutional transitions regularly fail to meet these expectations. This paper examines how international law practically influences post-conflict constitutional transitions by exploring the extent to which international law may itself contribute to post-conflict constitutional transitions regularly failing to live up to democratic expectations. Fundamental international legal norms such as sovereignty, the rules of international legal personality and UN law tend to prioritise security and allocate power not to ‘the people’ but rather governments, IOs and groups exercising military control. It may be that the overriding influence of these norms contributes to exclusionary outcomes.
Is constitution-making associated with armed conflict recurrence or non-recurrence? In the past 25 years, over 60 countries have adopted a new constitution or significantly amended their constitution during an armed conflict or as part of a peace process. Such changes can elevate conflict mitigation and compromises between political groups into supreme law – or entrench sources of tension. This article explains how the creation of a post-conflict constitution (PCC) and international support of this process, can potentially influence conflict recurrence or non-recurrence. Leveraging data from the Uppsala Conflict Data Program, the Comparative Constitutions Project, and a new dataset, it hypothesizes that conflicts with PCCs will be more likely not to experience recurrence than those without PCCs, and that the inclusion of specific types of changes to the structure of the state – such as new federal structures or decentralization – will be associated with conflict non-recurrence.
Peace-making in the aftermath of internal armed conflict between a government and an armed opposition group almost always requires constitutional change. The tension between the requirements of peace-making and the fundamentals of a constitutional order raises the issue of whether peace and constitutional principles can be balanced without risking neither the achievement of peace nor the constitutionality of the constitutional order. The aim of this paper is to develop a theoretical and conceptual framework within which the balancing between the ideal of peace and the principle of the rule of law can be done. The paper proposes a ‘matter of degree’ approach to the conceptualisation of the rule of law, which allows the accommodation of constitutional arrangements that fall short of constitutional aspirations yet fulfil constitutional duty without compromising the dignity of either end of the spectrum.