2014 JSI Seminar Series: Julia Domnick

22 October 2014

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Constituent power in transition? The international community and constitution-making in post-conflict states

We live in an era of constitution-making, renowned observer V. Hart noted. Since the end of the Cold War, we are witnessing a 'comeback' of constitution-making - but this time under fundamentally changed conditions. The fifth wave of constitution-making (Y. Ghai) takes place in highly internationalised post-conflict settings, marked by a high degree of factual international involvement, support and monitoring. In the aftermath of conflict, processes of constitution-making in post-conflict societies are a core element within complex, multidimensional peacebuilding operations and serve a multitude of normative and constitutive purposes from transforming society to establishing a common identity. Most remarkably, the exerted foreign influence on the genuinely national constitutional processes exceeds a mere constitutional borrowing or migration of constitutional ideas. Consider East Timor's reconstruction process after independence as a prime example, where process and organizational framework of the new constitution were almost entirely determined by the United Nations (UNTAED). This increasing de facto involvement not only integrates national-international factual situations, but moreover leads to a legalisation of the constitutional involvement: constitution-making is becoming an object of international law. Considering, that since the French Revolution at the end of the 18th century, constituent power has been conceived to rest exclusively within the nation (Abbé Sieyes) and only the nation is understood to create an entirely new order - the aforementioned observation is disturbing. Hence, the increasing involvement of international actors in various forms of constitution-making raises not only questions concerning the authority to engage in such reform, but challenges the traditional (ideally) democratic theory of constituent power. This paper focuses on the transitions of constituent power in post-conflict settings and asks different, related research questions. Analysing the new global dimension of constitution-making it asks if the external influence amounts to an evolving concept of internationalised constituent power in international public law. Should we conceive - as international constitutionalist do - of internationalised constituent power as the adoption of traditional constitutional functions by (constitutionalised) international law? Are these models of constitution-making necessarily post-sovereign as A. Arato puts forward? The paper goes on to propose a re-thinking of the traditional legal theory of constituent power given the changes in international practice. Is it possible to reconfigure the constituent power in times of transition - or should we even abandon the mystical, 'enigmatic' (A. Somek) concept of constituent power?

Julia Domnick is a Fellow and Scholarship Holder of the interdisciplinary DFG (German Research Foundation) Research Training Group 'Multilevel Constitutionalism: European Experiences and Global Perspectives' at Humboldt University, Berlin. She studied Law and Political Sciences in Munich, Geneva, Córdoba, Argentina and Cincinnati, USA and specialized in European and International Public Law. Julia is completing her doctoral thesis on "Internationalised pouvoir constituant" investigating the international community's influence on constitution-making in post-conflict states. .

Lawyers/barristers: attendance at this lecture is equal to 2 MCLE/CPD units

Time: 6.00pm-8.00pm

Location: Faculty Common Room, Level 4, New Law Building (F10), Eastern Avenue, University of Sydney

Cost: Free, however registration is essential

Contact: Professional Learning and Community Engagement (PLaCE) Team

Phone: 02 9351 0429

Email: 221b04432831075b4d181246202539234e5f22324018592d