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The Internationalised Pouvoir Constituant – Constitution-making under external influence in Iraq, Sudan and East Timor

Philipp Dann and Zaid Al-Ali, Max Planck Yearbook of United Nations Law, No. 10, pp. 423-463 (2006)

This contribution argues that, in order for external influence on constitution drafting processes to enjoy legitimacy it must satisfy a number of criteria. Firstly, it must be exercised with restraint. This goes certainly for any attempt of imposing substantial outcomes. Influence on the procedure, on the other hand, can have a positive effect or even be itself fundamental for bringing about the constitution-making process in the first place. Nevertheless, such merely procedural influence has to be exerted in a way that avoids that the self-interest of the external actor conflicts with or even prevails over the interests of the respective nation. This relates to a second point. External influence should, whenever possible, be exercised through multilateral institutions, in order to avoid possible conflicts of interest that may exist between individual intervening states and the constitution-making society itself. Finally, any external actors that are involved in the process must observe procedural neutrality, which entails, for example, that advice is given to all parties equally and in as transparent a manner as possible. Perhaps such rules will benefit future constitution-making societies and create a setting that will allow for more serious consideration of this topic in the future.