United Nations Constitutional Assistance: A Significant but Uncharted Field (2024)

1.0 Introduction

Much time has passed since the 1920s, when colonial/internationalized constitution-making or colonial/international trusteeship was the norm for developing countries. In 1960, the United Nations General Assembly (UNGA) rejected internationalized constitution-making.2 (That is, all colonies acquired an absolute right to independence: to sculpt constitutions of their choice without international assistance.) Yet today, the United Nations (UN) tutors the nationals (hereinafter local actors) of developing states in making a constitution and sculpting its content.3 Why? This book is the first to pose this question. This book is the first comprehensive attempt to describe and analyse United Nations Constitutional Assistance (UNCA) (1949–2019), a sizeable but uncharted phenomenon of global governance. Indeed, from 1949 till now, the UN has assisted developing countries, in response to their perceived incapacities, to adopt as their highest law, the Western liberal constitution (hereafter WL Constitution).4 This is UNCA. Therefore, the aforementioned question can be reframed as: How does the UN explain promoting the WL Constitution in sovereign states?

In doing so, this book reveals the deeper implications behind internationalizing constitution-making in over 40 poor, sovereign states. Consider these UNCA statistics:

The UN empowered itself to offer constitutional assistance to produce in each state the WL Constitution,6 which:

Given the aforementioned three bullet points, UNCA is the WL Constitution’s internationalized making by the UN. The Constitution so made, gives rise to, and guides UN territorial administration (ITA) (for example, internationalized law-making by the UN.) In the remainder of this book, the word ‘Constitution’ with capital C means the Western Liberal Constitution.

Indeed, UNCA covers two subjects which historically ally, but academically speaking, evolved in North America during the 1990s (when UNCA rose), in parallel ways: Western/US Constitutional law and public international law (including human rights) (hereafter Point X.) It helps to see Figure 1.8. In fact, UNCA falls within public international law and/or its fast-growing but still nascent sub-field: international constitutional law (ICL), also known as ‘global constitutionalism’.8The aforementioned two subjects still evolve separately. As Professor Stephen Gill suggests, the increasing global restructuring in the post-Cold War era, particularly from the 2000s, which essentially entails the Constitution’s internationalization, has made it imperative to note why they intersect.9 My book attempts to do that.

In the post-1989 era, poor developing states, both conflict-torn, and stable, aided by the UN, adopt the Constitution to secure debt-relief. Regarding the post-1989 era, the UN says, it promotes the Constitution because it is universal, builds peace, prevents conflict, promotes development (understood as market-oriented poverty reduction), and good governance, and so, democracy.10 In fact, the Bretton Woods Institutions’ (BWIs’) key members of the UN Family, invisibly drive UNCA (see Chapters 5–6). Indeed, UN peace-building/UN state-building/ UN transitional governance11 and global restructuring, all entail the Constitution’s internationalization, which UNCA achieves. However, international law scholars, for no fault of theirs, and owing to point X overlooked this. So, for example, UNCA-ITA projects were conceptualized as ITA only (see section 1.3). This book attempts to fill this gap in the discourse.

In so doing, the book aims to steer the international law discourse in a more inclusive and conceptually, the right direction. It seeks to demonstrate that analysing relevant international developments requires starting, not from the peripheral activity (internationalized law making, ITA), but from the parent one: the Constitution’s making, which UNCA is. Further, it seeks to explain why the Constitution is being internationalized. In this way, my book offers an ICL analysis, and seeks to start a dialogue (Dialogue) between constitutional law scholars and their public international law and international political economy counterparts. My book underscores the importance of third world states’ constitutional events, moments, and documents to international law analysis. Happily, this ICL analysis is now being called for. So too, is the Dialogue.12 Broadly, this study shows that the political control and domination that typified third world states’ constitution-making when they were colonies, continues in this post-colonial era.

The absence of prior scholarly attention significantly shaped the questions I asked, the method I embraced, the themes I highlighted, and the format, categories, and content I selected, for analysing the UNCA projects undertaken between 1949 and 2019. For this pioneering study, I ask: Why has the UN empowered itself to offer constitutional assistance in this post-colonial era? In my answer, I concentrate on how the UN officially, in its own words, explains the purposes of, justifications for, and assumptions behind, its constitutional assistance activities. This close look at the UN’s official explanations (ostensible purposes) is ‘purposive analysis’ (see section 1.7). According to Justice Aharon Barrack, ‘purposive analysis is analysis of the text, not psychoanalysis of its author.’13

My broad argument is: UNCA, which was conceived as colonial trusteeship in 1949, to produce the Constitution, and was, for that reason rejected in 1960, continues to play that role now, in sovereign states. Hence, its child, ITA (by the UN), acts as trusteeship. In particular, I argue that UNCA adds a new Civilized Standard: transparent, inclusive, and participatory constitution-making. This study is not ideologically inspired. It is motivated by my long fascination with the Constitution whose salience I underscore. This is done by exploring historical and contemporary sources, the constitution’s intersection with international law, including human rights and political economy.

Although scholars have resisted drawing a colonial analogy to ITA by the UN,14 and by extension, UNCA—the UN disagrees with them. Consider:

Indeed, this book explores how a particular constitutional model, though designed by and for powerful Western states, is produced in poor and politically weak states by the UN. I am not suggesting that the general populations of powerful states are somehow the beneficiaries of these arrangements. I also do not mean to suggest that these arrangements are consciously motivated by the desire to exploit Third World resources. Rather, I explore how powerful Western states create within developing states constitutional regimes that have the effect of throwing open the latter’s resources for the transnational capitalist class (TCC),17 that is, the banks, investors, corporations, and geopolitical/imperialist strategists.18 This effect is clear from both the UN Family’s official documents that are cited and, secondarily, from the fact that the TCC and conservative economists like Friedrich A. von Hayek and Milton Friedman comprise those most in favour of UNCA-produced arrangements.19 Nevertheless, it is true that the underlying motivation for these arrangements may be the factors other than or in addition to conscious resource exploitation, such as Cold War concerns, a belief in the legitimacy of international institutions, and so on.

The ostensible reason is the perceived incapacity of these poor states to make a sound constitution, and the assumption that once made, this constitution will erase bad governance, allow proper use of their resources, modernize them, and strengthen their weakened (national) sovereignty.20 This idea of creating within developing states a constitutional environment that is not inimical to the West, but officially explaining it as being intended to modernize21 the former —is reminiscent of the imperial civilizing mission.22 So too, is the idea of ‘strengthening sovereignty’ by making their governance ‘civilized’, or ‘good’.23

This argument is framed by using:

Wilde devoted his international law/ICL work to ITA, which recognizes ITA’s Western liberal constitutional parentage. Accordingly, Wilde defines territorial administration as covering only legislative, executive, and judicial activities.25 However, Wilde’s analysis excludes constitution-making, including internationalized constitution-making, and UNCA. In fact, UNCA was made public only in 2009; a year after Wilde’s book was released. ITA is not governance by local actors. Indeed, when international organizations (IOs) displace local actors to conduct territorial administration, so defined, they perform ITA. Using his own Method, Wilde conceptualizes ITA as a ‘Policy Institution’: an ‘institution’ or ‘established practice’ that is put toward four common ostensible ends: free markets, the rule of law, good governance, and civilized practices/women’s rights (Civilized Standards). In fact, these goals are essentially those of the Constitution’s. Wilde does this using the TWAIL theoretical perspective.26 On this basis, he frames a family of ITA or ‘international trusteeship’ Policy Institutions (hereafter Wilde’s Family):

Wilde’s Family is obviously based on, and reflects the conceptual ties binding the Constitution with territory and territorial administration, elaborated below (see section 1.1). Wilde concludes that the two allied eighteenth century policies—‘trusteeship and the civilizing mission, never went away’.28

For my book, which is the first to explore UNCA–ITA’s parent, Wilde’s Method and Wilde’s Family made appropriate analytical choices. Accordingly, I conceptualize UNCA (the Constitution’s internationalized making by the UN) as a Policy Institution: an ‘established practice’ that is key to achieving four common ostensible ends/Civilized Standards: rule of law, good governance, free markets, and civilized practices/women’s rights.

This enables me to analyze UNCA, both non-chronologically and chronologically, and as I will show below, admit it into Wilde’s Family, joining it with its off-spring: ITA by the UN. I trace UNCA’s historical origins non-chronologically, (that is, through Wilde’s Family): for instance, to the Constitution’s making by foreign states and/or an inter-war IO (for example, the League of Nations) (see Ch. 3). This enables me to arrive at its (Constitution) promotion by a post-World War II IO, the UN, in this way: In Chapter 4, I arrange my Chapter 3 findings about the Constitution’s internationalization during the early twentieth century, that is, from 1919 (the Treaty of Versailles) to 1952, chronologically. This reveals that the Constitution’s use increased during this period and brings me to its first-time promotion by the UN in 1949: UNCA. I chronologically examine UNCA in Chapters 4 to 6. It helps to see Table 1.1 (see page 13).

Indeed, as we will see, in the post-Cold War era, the UN and the BWIs first universalized the Constitution, and then co-conceptualized it as a Rule of Law (ROL) or development (understood as market-oriented poverty reduction) strategy. UNCA was revived to enable conflict-torn and stable debtor states to produce this constitution, in return for debt-relief.

In fact, the Constitution heads Wilde’s Family. I show that it sires each of Wilde’s six ITA institutions. On this basis, I conclude that international trusteeship comprises the Constitution’s making and ITA, working together to achieve four common ostensible ends (Civilized Standards): the rule of law, free markets, good governance, and civilized social practices / women’s rights. In fact, the Constitution is key to achieving the Civilized Standards. So, Wilde’s Family members must be reframed to admit their respective parents: the Constitution’s making, particularly as a way to pursue trusteeship goals. For instance, in this way, I join UNCA projects with their off-springs: post-1945 ITA projects. At this initial stage, it helps to look at Table 9.1, which illustrates Wilde’s Family, fully reframed.

This section, particularly the aforementioned six paragraphs, clarify that this book, from start to the end focuses on one constitution that is the state’s ‘supreme law’—the Constitution—and its internationalization to achieve four ostensible ends: free markets, rule of law, good governance, and civilized customs/women’s rights. This analysis is non-chronological, and is conducted through Wilde’s Family, which reflects the conceptual ties binding the Constitution with territorial administration. The Constitution’s internationalization to promote these four ends rose during 1919–1952. I have analysed chronologically, the Constitution’s internationalization by the UN alone (1949–2019). This analysis is historically and conceptually grounded, whether it is chronological or non-chronological, and regardless of the internationalizing actor involved. What makes it so are the chosen constitution’s nature, the chosen method, and the chosen framework.

This book offers the first comprehensive analysis of UNCA projects, with and without its child ITA, from 1949 to 2019. As already noted, UNCA was essentially conceived by powerful Western states with a view to create, in non-Western states, a constitutional environment that is not inimical to the West. Accordingly, at its birth, UNCA comprised these activities: drafting assistance, knowledge-based support (provision of experts and constitutional and human rights materials), and fiscally-oriented constitutional advice. Of these, one activity was critical: the International Monetary Fund (IMF) officials’ expert guidance.29 Such displacement and/or tutoring of non-Western peoples was ostensibly undertaken in response to their perceived incapacity, and above all, to civilize/modernize them.30

UNCA’s activities during its early run (1949–52; 1960–4) and in the post-1989 era, suggest that there has been no change in its key actors (for example, IMF), no change in its ostensible ends and purposes, and no change in its activities.31 In fact, as we will see, international constitutional assistance dates back to 1856, when France and Great Britain, with a view to promote the Constitution, co-drafted ‘barbaric’ Turkey’s monetary laws, ostensibly to civilize its economy and make it sovereign (see Chapter 3). Indeed, although UNCA activities have expanded since the 1990s, their financial orientation has remained a constant.32 Above all, the same justification animates their use: developing countries’ governance incapacities. The same ostensible purposes are put forth for their use: to modernize these states (in line with the West’s preferred standards) and to strengthen their sovereignty,33 supposedly weakened by their bad self-governance. How can this be? For it doesn’t make sense to frame sovereignty in terms of capacity for adopting the Constitution. This book explores how sovereign developing states came to be locked in as UNCA-recipient-states.

Answering my first-order international constitutional law question (Question) as to why the UN offers UNCA in sovereign developing states, entails establishing the UN’s ostensible ‘purposes’ and ‘justifications’ for displacing these states’ local actors from and/or tutoring them in sculpting their own constitutions. This makes these states’ constitutional events (Events) that is, the contexts for their constitution-making, utterly critical, and the logical starting point for answering the Question. Here lies my chosen Policy Institution concept’s merit, which calls for establishing those very aspects (for example, purposes and justifications) and thereby acknowledges the Events’ importance. (I will revisit this point in section 1.3.)

Answering this Question has taken up my whole book. This means that other important subsidiary questions, such as the critical empirical ones, of exactly how UNCA has operated on the ground, and whether its purposes (for example, promotion of free markets and anti-corruption) have been met, go largely unexplored. Again, in order to properly and fully assess those purposes (for example, free markets), requires starting from the UN’s justifications, that is, knowing why those ends are being promoted in the first place, and how the UN itself explains their promotion. This non-doctrinaire study strives to supply the foundation for these future inquiries.

‘Simple but shocking, no one has, as yet, asked why the UN displaces Third World peoples from making their constitution,’ said Dr. (Professor) Trevor Farrow, an expert on globalization, who commented on my paper on UNCA at a workshop in 2010. Indeed, the normative question as to why the UN is intervening in independent developing states’ constitution-making, is important for four reasons. First, this question is important in its own right. For Great Britain could only deny self-rule for Indians in 1928, and for Libyans in 1943, because then, and in fact until 1960, self-determination was merely a political principle. And so, colonial peoples lacked an absolute right to self-determination. Consider these two factual details:

Again, in 1960, the UN General Assembly (UNGA) declared that:

The 1960 anti-colonial resolution (reproduced above, in part), supposedly rejected colonially imposed constitutions and the FTAs they undergirded.36 Accordingly, it also rejected the internationalization of constitution-making and territorial administration. In fact, the UN Trusteeship Council has been shuttered since 1994.

There is a second reason for asking why UNCA is being used in this post-colonial era: to evaluate the legitimacy of the UN’s idea of displacing local actors from, or tutoring them in constitution-making. For the UN itself concedes that today, ‘constitution-making is a sovereign national process’, and so, the default (constitution-making) method is one, that is ‘nationally-owned and led’ without leading to a ‘foreign-imposed constitution’.37 This recalls international law professor Christine Chinkin’s advice that since the UN Charter nowhere mentions constitutional assistance, she would like to see my work answer this question: ‘Can local actors respond in this way to an offer of UNCA: Thank you Ms. UN official. But no thank you. We are able and willing to write our constitution without international assistance.’38

The third factor, addressing the accountability of UNCA projects, a normative issue, makes it important to question for what purposes those projects are being mounted. (Only then can one ask whether those purposes have been met). Fourth, and finally, so do these intertwined issues about UNCA projects: their challenges and solutions for their improvement.39

How specifically did UNCA’s unspecified nature affect my approach? As already noted, one way UNCA has remained uncharted until now is because American constitutional law and international law evolved in parallel ways during the 1990s. As a result, international law scholars missed the Constitution’s salience. Next, and for the same reason, although they rightly associated the BWIs’ rule of law assistance with promoting economic liberalization, they failed to note that such assistance was a logical corollary of its (Constitution’s) internationalization. Given this, my answer is, UNCA’s unspecified nature affected my approach in three ways. It spurred me to ask a first-order type of question set out on page 3. Second, construct a glossary of terms relevant to this subject, showing the terms used by the Security Council for constitutions, constitution-making, and UNCA: 1960, 1989–2009 because they are presumably unfamiliar to many. This second and simpler example comes in Table 6.4, Chapter 6. Third, I devote the following four sections to presenting only so much background information as is essential to showing how and/or why the Constitution:

This backdrop will enable me to thematically review the literature, and establish that, despite UNCA’s salience, it has been overlooked.

1.1 The Origins of the Western Liberal Constitution

To understand UNCA-ITA’s parent-child ties requires considering how and why, territory and jurisdiction—two Western legal concepts—tie up with a third, a constitution. These three concepts are known as the ‘legal trinity’. In Europe, the modern concept of the territorial state as the basic form for political organization first appeared during the Renaissance (1300–1700).40 What then emerged as a ‘technology’ of (territorial) jurisdiction was this: ‘legal writing that is hierarchically, in its most superior form: the “Constitution”.’41 In fact, it was during the Renaissance that ‘the term “constitution” received the conceptual content it still has today, meaning a set of institutions that limit the exercise of State power.’42 It was only the concept of the state that was new and not the concept of constitutionalism (that is, ideas of limited government and the rule of law). For, as Erik-Lane states, ‘one may speak of constitutions without any reference to the state.’43

The new concept of the territorial state separated constitutionalism’s modern version (with its characteristic ideas of limited government and the rule of law), from its medieval one. Still, for its development, the new concept of the state required the concepts of medieval constitutionalism, which of course had to be ‘reformulated to fit to the new context’.44 Herein come Baron de Montesquieu and John Locke.45 These two thinkers, prominent among the founders of liberal political philosophy, the philosophy of individual rights and limited government, rendered the classical formulations of modern constitutionalism, the doctrine of limited government.46 To do so, both these philosophers ‘placed themselves in a fictitious state of nature’.47 They each approached this idea (modern constitutionalism) very differently.48 However, both of them drew the same conclusions: ‘the necessity of [basing] the modern state on the rule of law and a separation of powers or a constitutional set-up.’49

Locke set out premises (‘constitutionalist conclusions’),50 which shaped and help to theorize the North American and French revolutions.51 Those conclusions or ideas took the shape of a constitution that protects equality, independence, and property.52 In fact, the United States constitution, a prototype of the Western liberal constitution, though not drafted by Locke, is undoubtedly based on his philosophy. Indeed, so are all the Western political systems.53 To sum up, European constitutionalist tradition was long animated with this question: What type of institutions can produce ‘good government’?54 Such institutions included the adherence to an explicitly framed written constitution.55

Constitutional supremacy and constitutionalization of property rights

The constitution became the territorial state’s legal foundation. Accordingly, the Constitution:

Feature 1) gave rise to the concept of ‘constitutional supremacy’ and the allied technique of ‘constitutionalization’. For the purpose of the present discussion, constitutional supremacy and constitutionalization will be explained regarding 2) b) property rights. To ‘constitutionalize’ property rights means to define and write them into the actual document: the state’s supreme law. The rights are formally incorporated within the text of the constitution to limit the capacity of the legislature and/or executive to supersede them through their own unilateral actions, including by revising them like an ordinary law. In this way, constitutionalization provides the best and most lasting assurance that the future laws, policies, and decisions of the state will work to proactively advance property rights and/or any other rights. Revision of property rights would only be possible through a distinct procedure (constitutional amendment), and difficult to achieve.

1.1.1 UN Constitutional Assistance and the Bretton Woods Institutions’ ‘Rule of Law’ (Legislative) Assistance Work Toward Common Ends

Owing to features 1) and 2) a), the Constitution provided a framework for the conduct of territorial administration and formation of government, and subordinates laws in all areas, such as torts, crime, labour, and commerce, within the territorial unit to which it applied. In short, feature 1) required that all other laws in a state, governed by the Constitution needed to comply with it. Owing to features 1) (and its advantages), and 2) a, in the post-Cold War era, the UN and the BWIs co-prescribed for developing states a constitution that is ‘supreme’, and ‘constitutionalizes’ an independent judiciary and property rights, (the BWIs’ conditionalities) and guarantees of women’s rights (see section 1.3).57 Accordingly, the World Bank stated:

As per the World Bank’s guidelines:

It is only the UN that offers ‘constitutional assistance’: It helps developing states draft their constitutions to constitutionalize just those conditionalities and guarantees.60 For political reasons, the BWIs only offer legislative assistance: They help developing states fashion laws that comply with the Constitution. Accordingly, the BWIs state:

Meanwhile, the increasing globalization has caused a mission creep:

In any event, the BWIs’ assistance is essentially legislative in nature and therefore works with UNCA toward common goals: privatization, and so on. Figure 1.1 illustrates UNCA and the rule of law assistance’s ties.

1.2 UNCA Sires and Works with International Territorial Administration (ITA) towards Common Ends

Point 1) is also how and why the Constitution emerged as a ‘technology’ of jurisdiction, working symbiotically with territory, lending a distinct political character to a given territorial unit, and conferring a distinct ‘status’ (including statehood) on a given territorial Unit. Accordingly, conceptually, the Constitution and its making tie up with territorial administration (legislative, executive, and judicial activities), and establish jurisdiction.

The Constitution’s internationalized law making led to internationalized territorial administration. The following UNCA-(plenary) ITA example best illustrates UNCA and ITA’s parent-child relationship.64 Here, UN policymakers displace the relevant territorial unit’s local actors from the activity of constitution-making, with a view to promulgating the Constitution (enshrining the market economy clause). This is UNCA. In this way, policymakers constitutionalize the market economy. The Constitution, so produced (by UNCA), establishes a preferred framework for that Unit’s (territorial) administration. Accordingly, policymakers then displace local actors to administer the Unit: they draft laws to privatize natural resources, throwing them open to foreign investment. This is ITA. This makes the Constitution, and by extension, UNCA (the Constitution’s internationalized making), ITA’s parent. This also shows how UNCA and ITA work together toward achieving their common purposes: democracy, the rule of law, free markets, good governance (including the exploitation of natural resources), modern/civilized practices and/or human rights, including women’s rights, and a particular territorial status. Since these common purposes are essentially those of the Constitution, UNCA is committed to achieving them.

The relationship (mentioned in the above paragraph), holds good in UNCA–partial/plenary-ITA projects, where ITA (UN’s law-making) may have begun before the Constitution is made. Here, as the Constitution is the highest law of the land, it and by extension, UNCA governs ITA. Figures 1.2–1.3 illustrate UNCA’s salience vis-à-vis plenary, and partial ITA respectively.

Finally, this salience of the Constitution (and by extension, UNCA) holds well, even where only UNCA (without ITA) operates in sovereign states. For here, a sovereign state in adopting the Constitution with UNCA locks in the Western liberal constitutional framework. As a result, even though it is that state, and not the UN, which self-administers (for example, makes laws), those laws need to comply with the Constitution. This model obtains in all the post-1993 projects (see Table 1.1 and Figure 1.4). It helps to revisit Table 1.1.

1.3 International Law Analysis of Relevant International Developments Lies in, and in fact, Requires Starting from the Constitution

Thematic Review: Setting the Backdrop

I start from 1989 for two reasons. First, UNCA projects mushroomed only after 1989. Whatever little scholarship exists about the Constitution’s internationalized making by the UN, takes 1989 as the starting point. Second, hardly anyone noticed the first UNCA project in 1960, in a sovereign state, (in newly decolonized Congo), that the late Dag Hammarskjöld, the second UN Secretary-General pioneered during the Cold War (discussed further below in this section). Hammarskjöld called UNCA International Executive Rule.

According to the UN, super-power rivalries, in Angola and elsewhere, fueled some of the decade’s longest and most deadly conflicts in the late 1980s.65 Indeed, by 1996, 14 of the 53 countries in Africa were afflicted by armed conflicts. These conflicts ended when the Soviet Union collapsed, coupled with UN intervention.66

Powerful western states—and the financial institutions they backed – traced this havoc to these sovereign states’ ‘bad governance’.67 They alleged that governance was bad when leaders rigged elections, the military trafficked children, and weak central banks kowtowed to corrupt leaders and endorsed their budget deficits. This type of governance, said the West, triggered conflict and threatened world peace and security. In particular, the West traced these states’ bad governance to their ‘deficient’ constitutions.68

As the Soviet Union began to crumble, a confident assumption developed among powerful Western states about the need to bring the blessings of democracy to the new states. The thinking went like this: The Soviet Union’s demise spelt the triumph of capitalism, liberal democracy, and market-oriented policies. To encourage the gradual evolution of liberal market democracy in developing countries and the former Soviet satellite states, ‘the democratic creed must be evangelized.’69 Indeed, evangelization is what the West engaged in. Western scholars and policymakers used the end of the Cold War to espouse the universality of capitalism, human rights (economic rights), and liberal market democracy.70 The liberal human rights narrative articulated a particular vision for these states: liberal Western (market) democracy, underpinned by a constitution (as epitomized by that of the United States).71 What is more, this narrative recommended a process of external legitimation for promoting that vision.72

Is this narrative new? No, as we will see in chapters 2–5. However, what was rejected in 1990 was the Cold War era’s peace, security, and development architecture (hereinafter Architecture).73 That Architecture comprised two parallel sets of institutions. One set addressed poverty and development; the other addressed peace and security.74

The new Architecture reflected the international community’s ‘holistic’ approach to, and collective role in tackling poverty, security, and development.75 For, as the UN suggests, ‘the international community, freed from the super-power rivalries, was eager to exercise its newly acquired capacity for collective decision-making.’76 Henceforth, UN functionaries, the UN Secretariat (and all its wings), the Security Council, and the UN Agencies —including the UN Development Programme (UNDP) and the BWIs—would jointly lend their hands to assisting these states in improving governance along international standards, and so reduce poverty, prevent conflict, and promote peace, security, and sustainable development.77 (Tellingly, the UN Secretary-General’s top-level Executive Committee on ‘Peace and Security’ comprised the BWIs’ officials).78 Accordingly, the UN was positioned to build these states’ capacity to create an appropriate constitution in response to their perceived incapacity. And so, in the mid-1990s, the UN declared:

Three allied concepts, coined in the wake of the Cold War, internationalized the Constitution: peace-building, conflict prevention, and good governance. (Here is how and why the Constitution appeared on the international radar.) The UN first defined peace-building in 1992, as an ‘action to solidify peace and avoid relapse into conflict’.80 Indeed, peace-building covered everything, including disarming armed groups, fighting corruption, designing market economies, promoting foreign investment, and holding free and fair elections, thereby following the model of the Constitution.81 For post-conflict states, these peace-building goals were a given, says a former top-level UN official:82 ‘The triumph of liberal democracy and market-oriented economic policies since the fall of the Berlin Wall clearly affected the search for solutions, both theoretical and practical.’83

Indeed, as we will see, the Constitution’s making was key to achieving most, if not all, of the peace-building goals. In fact, the UN stressed that it had an obligation to respond to the supposedly ‘new requirement’ of helping states transform their ‘deficient national structures’ by sculpting new constitutions.84 In 1996, the UN described its constitutional assistance this way:

During this time (the mid-1990s), the UN broadened the peace-building concept, stating that it falls within conflict prevention. Conflict was defined broadly to include:86

As in peace-building, here too, the UN’s role was to support national conflict-prevention efforts and assist in building national capacity in this regard.88 UNCA was labelled a key conflict-prevention activity.89

Given the broad way in which conflict was defined, improving governance to promote development acquired a preventive hue:

Indeed, Kofi Annan, the UN Secretary-General, considered the promotion of human security and human development key to preventing conflict.91 Hence, making an appropriate constitution, (that is, the Constitution) to remedy bad governance became a key development activity.92

According to the UN, for developing states to build peace, prevent conflict, and achieve sustainable development, they need to establish good governance.93 What are good governance’s cornerstones? They include: respect for the rule of law and human rights; strong judicial and public financial institutions (for example, an independent central bank); participatory and democratic decision-making; and good natural resource and public sector management.94 How might developing states create these basic elements? The UN says they need to do adopt a constitution that:

Clearly, these features (a–e) suggest that the UN Family promotes the Constitution. (It helps to note that democratic governance, an allied UN concept, shares the same core elements with good governance.)96

Accordingly, starting from the 1990s, both the UN and the BWIs offered yet another allied activity (rule of law assistance), for the same ostensible purposes.97 The BWIs subsumed the Constitution under the rule of law label, and so, assisted states in making (or reforming) laws, to promote the market economy, economic liberalization, privatization of natural resources, and so on.98 This is precisely why, in the post-Cold War era, the term ‘rule of law’ (or rule of law promotion) in the peace-building/conflict prevention/development assistance contexts, equaled the BWIs’ pursuance of neo-liberal economic policies.99 Section 1.1.1 explains why the BWIs’ ROL assistance was a logical corollary of the Constitution’s internationalization. Throughout this book, the term rule of law is used in the sense that the BWIs use it: economic liberalization.

Before turning to consider the Constitution’s internationalized making in the developing world, one may recall from section 1.0, that as an activity, constitutional assistance was in the UN’s repertoire. It was readily available in 1990. In the post-Cold War era, it was simply revived in independent states to produce the Constitution. It was explained as a: peace-building, conflict-prevention, and market-oriented development (poverty-reduction) activity.

Given this, during 1989–2019, the UN began to mediate between warring parties, nudging and assisting them in concluding peace agreements—most of which mandated among other things, the Constitution’s making— to prevent conflict and build peace.100 This means, first, peace processes and peace-making assumed constitutional dimensions.101 Second, and accordingly, UN peacemaking equates with the Constitution’s internationalized making. So, UNCA included peace-making.102 Third, ‘power-sharing,’ the UN’s oft-prescribed solution for ethnic conflicts, is consonant with the Constitution. In fact, power-sharing arrangements (governments of national unity) are mandated to adopt this Constitution during the ‘transition period’ (see chapter 6). Finally, and therefore, the UN’s post-Cold War’s peace operations grew multidimensional.103 Authorized by the Security Council, they used UNCA to make the Constitution mandated by relevant peace agreements. They were manned by experts in topics including security, human rights, fiscal decentralization, and natural resource management.104

Earlier in this chapter, we noted the UN’s bold (mid-1990s’) declaration about its constitutional assistance. Almost a decade later, it declared:

As for stable states, the UNDP helped them to formulate and implement poverty reduction strategy papers (hereinafter conditionalities) or national development frameworks which mandated the Constitution/good governance. In this way, the UNDP melded constitutional assistance with development assistance. And UNCA served to enable stable states to adopt the Constitution, as a way of implementing their conditionalities/frameworks.

In these ways, ‘post-conflict’ and development assistance became the two contexts for UNCA’s use in the post-colonial and post-Cold War era. Conversely, this was how, and why, the internationalization of constitution-making came to be revived in sovereign states.

Figure 1.5 captures the two contexts for UNCA’s use. Figures 1.1 and 1.6 intertwine for they both illustrate the Constitution’s salience. Figure 1.1 shows how UNCA and the BWIs’ rule of law assistance work together toward common goals. Figure 1.6 builds on this relationship, showing UNCA’s salience vis-à-vis the UN, and the BWIs’ rule of law assistance, and the UN’s assistance in electoral, judicial, and security sectors, for instance.

This section reveals that the Constitution is being internationalized because it is key to achieving privatization and so on, viz. the BWIs’ ends (see Figures 1.1, 1.5, 1.6, and 5.3). Given the Constitution’s status as a conditionality, its internationalization is integral to post-1989 allied fields of study: UN rule of law promotion, UN peace-building, and UN state-building: Power-sharing (sub-field). The Constitution is integral to two additional Fields: Globalization /Global Restructuring and ‘Law and Development’106 that emerged from the debt crisis of the 1980s (see Chapter 5). Given this, the Constitution is relevant to scholars of these two subjects: Western constitutional law and international law (including international political economy). As the following review will reveal,

In any event, the Constitution’s overlooking has been innocent, all through. In these circ*mstances, five allied caveats obtained, which I will offer as I go along, in this section itself. First, throughout this book I, an avid explorer of the Constitution’s internationalization by the UN, have no immediate international law conversationalist in the aforementioned Fields and sub-fields.

Why has UNCA eluded academic exploration? In particular, why has no one questioned UNCA’s revival? Indeed, the UN itself has received scant scholarly attention. For instance, Edward Neuman and Roland Rich’s lament, made in 2004, still holds true today: ‘The role of the UN –the embodiment of international society– in the promotion of democracy remains understudied.’107 Only one book has done that in the last decade. Although it rightly argues that the UN promotes a Western market democracy based on a textual interpretation of the very UN documents, I have cited in the aforesaid discussion, it does not base its conclusion on UNCA’s use mentioned therein. Rather, it proceeds to group the Constitution’s making with those very activities that it sustains (for example, judicial reform) under ‘rule of law’. It, instead, arrives at this twisted conclusion: ‘UN’s democracy assistance: Governance + electoral assistance.’108 Thus, UNCA has been ignored. Evidence for this is plentiful.109 So has the Constitution’s making in the context of development assistance.

Given this, in the thematic review that follows, I will briefly consider just six books on peace-building, state-building, the rule of law, ITA, and state-formation, and two extant articles on UNCA proper, to show what has been foregrounded. As we will see, even an article on UNCA proper ignores UNCA. Regarding state-formation, I consider a book and a review essay authored by Guy Sinclair, because they both examine the role of Hammarskjöld’s International Executive Rule, IER/UNCA, in modeling developing states along Western lines. In conclusion, I will offer four more reasons for why the scholarship has evolved in this way, and discuss how my previous scholarship helped fill some of the gaps in the literature, and how those gaps have shaped this book.

UNCA / The Constitution’s internationalized making is ignored, but what it promotes, receives attention

Of the following three peace-building books, the first two are reference works, (an inventory and a lexicon), and the third is Roland Paris’ award-winning scholarly book. It is worth noting at the outset that the UN provides no official, comprehensive UNCA inventory. Given this, to analyse UNCA requires knowing in which states the Security Council has mandated its use. The 2015 Oxford Handbook on peacekeeping operations covers the period 1948-2013 (hereafter Oxford Handbook). It aims to provide a ‘historical overview of the missions’ mandates and strengths and achievements’.110 It recognizes that after the Cold War ended, UN peacekeeping missions broadened to include ‘peace-building’ ones, with this broad set of goals: governance, rule of law, civilian police, and economic development.111 Yet UNCA is filtered out from each mission’s mandate. Instead, each mission’s analysis covers only these components: elections, rule of law, civilian police, civil administration, human rights, economic reconstruction, and refugee repatriation.112 In this way, the Constitution’s making receives short shrift. It finds brief mention only in the discussions about Namibia and Burundi.113

This inventory has thus left a huge gap. So too has another inventory provided by an article.114 Both add nothing to our knowledge about whether a post-conflict situation involved the making of a new constitution, or the revising of an existing one. Ascertaining this aspect is very challenging, because the Security Council’s early resolutions use other terms for constitutions, constitution-making, and UNCA (see Chapter 6, Table 6.4).

When a whole set of activities is hidden, other important aspects, such as the interaction between the various dimensions of peace operations and peace-building activities and their goals are also cloaked. So, Paul Diehl and D. Druckman’s analysis of the sequencing of peace-building activities (in the Oxford Handbook) is unhelpful, because it omits that key, pre-elections activity: the adoption of the (new) Constitution or constitutional reform along good governance lines.115 Indeed, starting from the early 1990s, policymakers pushed Third World states to constitutionalize democratic electoral systems, in an effort to prevent intra-state ethnic conflicts that the exclusionary political processes of the late 1980s–early 1990s had reportedly triggered. Thus, although Diehl and Druckman identify rule of law, elections, and democratization as key peace-building goals, the constitution-making activity undertaken to achieve them escapes attention. So does constitution-making’s centrality to peace-building. As a result, Diehl and Druckman render peace-building very narrowly, as Figure 5.2 in their chapter indicates.116 I have modified that figure and reproduced it, indicating where the Constitution’s making fits in, and to which peace-building goals it relates.

The UNCA-ignoring trend continues with the Peacebuilding Lexicon, a 2009 Oxford publication edited by Vincent Chetail.117 It is instructive to reproduce all of Chetail’s 26 entries here, although I have switched their original order for my readers’ convenience. I have italicized and numbered only those items most relevant to UNCA: (1) capacity-building, (2) free and fair elections, (3) rule of law, (4) peace operations, (5) peace process, (6) private sector, (7) security sector reform, (8) state-building, (9) transitional administration, (10) transitional justice, (11) responsibility to protect, (12) Disarmament, Demobilization and Rehabilitation, (13) human security, (14) international crimes, (15) democratic governance, conflict economies, civil-military interface, civil society, conflict transformation, local ownership, mine action, non-state actors, reconciliation, recovery, reparation, and return and reintegration.

At first glance, we can see what this publication does, in light of my points in 1.1–1.2. Indeed, Chetail’s book foregrounds what the Constitution sustains: the rule of law. Therefore, noting this chapter’s contents will be useful. That co-authored chapter affirms that the rule of law’s promotion, spearheaded by the BWIs, became widely associated with promoting the market economy, achieving economic liberalization, and creating a safe legal environment for foreign investment.118 Accordingly, the BWIs’ rule of law assistance comprises commercial law-making or law-reform activities.119 The authors point out that pursuing extensive privatization (for instance, of natural resources) in a peace-building context, imperils the right to self-determination.120 Regrettably, they stop at that. They neglect to mention that key activity essential to promoting the rule of law, namely the adoption of the Constitution (see section 1.2), an aspect that Figures 1.1 and 1.6 illustrate, using an example offered by the World Bank itself. And so does the capacity-building chapter, which only covers assistance offered to build states’ capacity to promote the rule of law.121

The Constitution’s wholesale bypass, begun in the capacity-building chapter, continues through the fifteen chapters listed above, completing a full circle in its homeland: the democratic governance chapter.122 This last, Chapter 15, affirms that democratic governance and good governance share the same criteria.123 Instead of pointing to the Constitution, it states that promoting democratic governance includes constitution-making.124 This chapter thus erroneously implies, and so contradicts the rule of law chapter, that post-conflict states are free to fashion a constitution of their choice (see Chapters 5–6). In light of section 1.3’s discussion, this chapter even contradicts the UN, which explicitly recommends and promotes a particular constitutional model for and in developing states.

Overall, this 385 page book devotes only eight lines to the most salient peace-building activity: the Constitution’s making. In tune with the aforesaid publications’ approach, Chetail’s work recognizes and foregrounds peace-building’s politico-economic dimension. But it ignores its constitutional dimension.

So too, do Paris and Dominik Zaum’s books on peace-building and state-building respectively. With a view to analysing how 14 UN peace missions (1989–99) built peace, Paris underscores the BWIs’ underlying powerful role and focuses on the UN’s economic liberalization and electoral assistance activities. On this basis, he concludes that the Western liberal ideology guides UN peace-building.125 Meanwhile, in 2003, Michael Pugh, editor-in-chief of International Peacekeeping, commended Paris for this breakthrough (offering this insight).126 Before turning to Zaum, it helps to note that Paris previously analogized peace-building-minus-the-Constitution’s-making to the colonial civilizing mission.127 Zaum, with a view to considering how three Territorial Units (Kosovo, East-Timor, and Bosnia) morphed into ‘States’, focuses only on their internationally imposed responsibilities for promoting democracy, rule-of-law (economic liberalization), and human rights. Zaum asserts that these responsibilities constitute a ‘standard of civilization’,128 which international administrations use, both to justify denying these Units the right to self-governance, and to serve as a blueprint for their activities.129

Post-1989 Rule of Law Assistance’s Parent Goes Unrecognized: UNCA

What about Stephen Humphrey’s doctrinaire study of the rule of law as a Western concept? Logically, it briefly covers post-1989 rule of law promotion and finds colonial continuities therein.130 Humphrey skips rule of law promotion’s parent: the Constitution’s internationalized making by the UN.

Works on ITA

Technically appraising constitution-making and missing ITA’s parent: UNCA/the Constitution’s making

Works on ITA evidence the second way in which UNCA escapes attention. They do so in two ways, the first of which Carsten Stahn’s book illustrates (discussed in this para). Stahn’s book devotes 10 pages to describing and technically appraising internationalized constitution-making, but overlooks the actors that internationalize constitution-making, namely the UN and the BWIs, and the context for such internationalization; and the model they promote, namely the Constitution.131 Stahn fails to note that the UN was able to administer Kosovo, Congo, and East-Timor because the Constitution was internationalized there. Consequently, UNCA-ITA projects in these and other relevant territorial units are identified as ITA only.

Meanwhile, tellingly, once again, the IMF affirms my point: the Constitution’s salience: It provides the basis for, and guides and governs ITA (for instance, law-making or law-reform). For example, take the IMF’s submission that it co-commenced (with the UN), ITA (law-making) in East-Timor, guided all along by the latter’s (East-Timor’s) impending [2002] Constitution:

Again, this innocent lack of attention to constitutional matters leads Stahn to conclude, (based on Lakhder Brahimi’s misleading statement) that the UN left a ‘light-foot print’ in Afghanistan,133 thereby implying that Afghans were free to choose their own constitutional model (see chapter 6). As a result, Stahn simultaneously shrouds the Constitution’s salience which is precisely why it is being internationalized via UNCA and, thereby contradicts the UN itself. Nonetheless, Stahn suggests that we must interrogate constitution-making’s internationalization because it violates the 1960 anti-colonial resolution.134 I do precisely that.

‘Purposive simplification’ implicitly distorts the purposes for internationalizing the Constitution, that is, using UNCA and so, ITA

A second way that ITA works have indirectly distorted our understanding of UNCA is through what Ralph Wilde calls ‘purposive simplification’.135 That is, how commentators who have chosen to affix the ‘post-conflict’ label to ITA projects, particularly the well-known ones in Kosovo and East-Timor, thereby imply that ITA:

Wilde has invalidated the aforementioned implications.137 In so implying, commentators are implicitly explaining the Constitution’s purposes simplistically. Thus, they mislead. I join Wilde in invalidating these implications by showing that UNCA-ITA projects in Congo (see Chapter 4), and Kosovo and East-Timor (see Chapter 6), were in fact mounted in the wake of conflict. However, in all three territorial units, the UN displaced local actors from the allied activities of constitution-making and territorial administration (that is, law-making), in response to their perceived inability and/or unwillingness to constitutionalize the market economy and other conditionalities. In short, the three UNCA-ITA projects were conceived to fill an internationally created vacuum.

Works Bypassing Internationalized Constitutional Moments

Sinclair’s Essay (about a book devoted to Hammarskjöld), and his own 2017 book on state-formation, and Charles Call, an international relations scholar’s policy paper on UNCA, illustrate the third way that UNCA has been overlooked.138 Regarding his Essay, it helps to note that Sinclair’s comments about my chapter on UNCA—which makes these three points—alone are relevant: (1) Hammarskjöld pioneered UNCA/International Executive Rule (IER), in Congo; at his behest, the UN Operation in Congo, though deployed to repel Belgium’s invasion, abandoned its neutrality to pursue his capitalist vision, which clashed with that held by Patrice Lumumba, Congo’s socialist Prime Minister; and (2) UN experts displaced local Congolese to draft Congo’s Constitution and laws (for example, mining) to promote free markets.139

Regarding this chapter, Sinclair states: ‘Sripati examines the practice of (UN) constitutional assistance, tracing its origins to the Congo peacekeeping operation.’140 Yet, in conclusion, Sinclair laments that the book under review neglects to ‘discuss Hammarskjöld’s signal contribution to the evolution of UN technical assistance’ [IER], which according to him, Hammarskjöld took still further in Congo, this way:

In this way, Sinclair refers to Hammarskjöld’s IER, minus its constitutional context.

Moving onto his own book, what might Sinclair examine, with a view to establish that IOs shaped post-colonial states on a broadly Western model? Indeed, he considers none other than Hammarskjöld’s IER in Congo, and the BWIs’ conditionalities, but of course, minus their constitutional contexts.142 But, then again, Sinclair notes UNCA’s emergence as a post-1989 UN activity, in fact, citing to my article, ‘United Nations Constitutional Assistance Projects in Comprehensive Peace Missions: An Inventory 1989–2011’ (hereafter UNCA inventory) published in 2012.143 How might Sinclair conclude? Interestingly, he states: IOs’ interventions resonate of imperialism.144

Given section 1.1–1.3’s revelations, what conceptual confusions do Sinclair’s works create and reflect? Which of them can we trace to the 1990s’ parallel evolution of international law and constitutional law, which I call Point X? Indeed, the answer is: all of them. In fact, Point X is why, Sinclair missed the Constitution, which is central to the territorial State, a Western paradigm. Conceptually (i) examining IOs’ role in modelling post-colonial states, along Western lines, requires starting from the latter’s constitutional events; (ii) Hammarskjöld brought in UN experts (in ways that Sinclair himself notes), who sculpted the Constitution (for example., of UNCA) and revised Congo’s mining laws to meet the Constitution (for example., of ITA), to divert the Congo engine from the socialist track; (iii) Hammarskjöld’s IER equals UNCA, and its use in 1960 is ‘signal’ because then, Congo enjoyed the right to create its own constitution, and laws below it, without international assistance; and (iv) the 1999 conditionalities are significant because they launch the Constitution, which UNCA produces. My chapter in the book devoted to Hammarskjöld, and my UNCA inventory discussed points i–iii, and iv respectively, both contributions whose salience to state-formation, Sinclair misses.

Next comes Call’s work which considers how the UN has dealt with cases of unconstitutional changes of government in Kenya, Guinea, Kyrgyzstan, and Madagascar.145 Regrettably, Call fails to discuss the key way in which the UN restored constitutional order. For instance, regarding Guinea, Call mentions that the UN helped broker the crucial Ougadougou Accord of January 15, 2010, which would guide Guinea’s return to constitutional order.146 But in his discussion, he omits the Accord’s key provision –good governance, including that which provides its constitutional dimension: the Constitution. Therefore, he leapfrogs straight to the UN’s assistance in the electoral and security sectors to show how the UN helped to restore constitutional order.147 Alas, in this way, owing to point X, Call and many other scholars have omitted what is central (Constitution-making), and foregrounded what is peripheral (elections). Here, it is worth revealing at this early stage, some of my key findings regarding Guinea:

Indeed, UNCA equals the promotion of the market economy, privatization, anti-corruption, and so on (see Table 6.3), key purposes that Call’s analysis obscures. Accordingly, (and as I will discuss in Chapter 6), in Guinea and elsewhere, the UN has interpreted the breakdown of constitutional order (in the wake of conflict) in economic terms, and therefore, has set market-oriented criteria for its restoration. This makes Call’s focus on the UN’s electoral assistance, and security sector reforms, misplaced. The internationally supported security sector reforms that he alludes to require for their full implementation a Constitution (see Figure 1.6).

UNCA’s Use is Questioned but its Use to Produce the Constitution (A Conditionality) Remains Unknown

Ratuva’s field-work based article is welcome, for it reveals how UNCA works in practice, in Nauru.148 (Although Ratuva is understandably unaware of UNCA’s birth and post-1989 rise to produce the Constitution, he is the first to join me in questioning UNCA’s use, which I discuss in chapter 10.) According to Ratuva, while there was consensus that the Government of Nauru had to speed up constitutional (fiscal) reforms, differences arose about what the reforms had to be, and how they were to be implemented. Those differences, says Ratuva, arose because two major development discourses obtained:

Accordingly, experts hired by the UNDP offered policy advice, designed public consultation programs, and drafted Nauru’s constitution along good governance lines.150 In this way, ‘consent was manufactured’, says Ratuva, but there was ‘little, if any, explicit provision for improving community livelihood’, an issue that the local Nauruans reportedly raised with him.151 In conclusion, Ratuva laments that:

It helps to note here that, those Reforms flowed from the Asian Development Bank’s PRSPs, which the Nauru government had consented to implement, only to secure debt-relief. Accordingly, those differences eventually became irrelevant, and the above rationale underpins UNCA (see Chapter 6). Meanwhile, some who do not know that the Constitution is a conditionality, argue that international assistance stems from local actors’ demands for accountable governance. Ratuva’s findings, coupled with mine (see Chapters 5–6) affirm the UN’s own admission (see pages 8–9), reiterate and so invalidate that claim.

Given section 1.1–1.3’s revelations and the aforesaid review, how might we say, have point X and the UN and the BWIs’ frameworks (for example, rule of law), distorted the discourse? Indeed, while point X triggered the Constitution-ignoring trend, the frameworks effectively turned international law scholars’ attention toward law-making, a peripheral activity. Consider. The aforesaid first eight international law works ignore the Constitution, including its parentage of rule of law and ITA. They instead, focus on what it underpins (the Western state), gives rise to (ITA, that is, legislative activity), promotes (ROL), and enables (state-formation, holding free and fair elections and/or achieving economic liberalization). In these ways, scholars focussed on, and built the post-1989 international developments’ legislative dimension. This, in turn, triggered numerous writings on the Security Council’s law-making role, (instead of its role in promoting the Constitution by mandating UNCA).153

Why is international constitutional law (ICL) analysis important? ‘To appraise the legitimacy of international interventions’

What other effects might the Constitution-ignoring-trend have produced? Indeed, that trend created a knowledge-gap about the Constitution’s internationalization that in turn, diminished its salience, and made constitutional issues to appear inconsequential. Accordingly, a 2018 book on Transitional Governance/UN Peace-building persists in conceptualizing UNCA-ITA as plenary ITA only, and adds to the confusion by considering “plenary ITA Kosovo Style” as the UN’s most intrusive form of intervention.154 We know where ITA arises from and what enabled the UN to achieve its ambitious post-Cold War agenda in Kosovo: the Constitution. However, two encouraging aspects regarding ICL analysis deserve mention. First is that, this very 2018 book, in addition to calling for an ICL analysis, reminds its international law audience that ‘constitutional moments’ and ‘the period preceding and succeeding them deserves an analysis in its own right’155 (see section 1.0).

The second is that, ICL was endorsed, almost a decade ago, by the American Society of International Law’s 2009 Merit Prize Award Committee. Indeed, this Committee, which most probably consisted of international law scholars, affirmed that international law analysis of relevant developments requires starting from, and taking into account, constitutional and legislative issues. This Committee found Wilde’s analysis of ITA, with its Western liberal constitutional parentage (see a. and b. below), ‘critical to appraising the legitimacy of international interventions’.156 The Committee therefore commended Wilde’s ‘policy institution’ concept and ‘purposive analysis’ method,157 whereby Wilde and I analyse:

Put negatively, the Committee did not downgrade Wilde’s coverage of legislative activities (that spring from the Constitution) and his consideration of IOs’ purposes (for example, his Chapter 6 and my Chapter 7) for internationalizing those activities. Accordingly, the Committee did not say that Wilde’s book has no analysis and no theory. My point is the same. Presenting the facts is often an essential part of analysis; it most certainly does not preclude analysis. Indeed, the Committee underscored that, starting from developing states’ constitutional and legislative moments, and considering why they are internationalized, is enduringly important to international law analysis (for example., my Chapters 4–9). Here is the second reason, why I chose Wilde’s research method: It recognizes the Constitution’s salience and enables me to offer an ICL analysis and appraise the legitimacy of internationalized constitution-making by the UN.

Here lies my second caveat. In so focusing on the relevant international developments’ legislative dimension, scholars have implicitly acknowledged its parent constitutional dimension. Which is precisely what my international constitutional law (ICL) analysis offers, and here our arguments unite! (I will revisit this point in section 1.8). For instance, international relations expert Tony Lang suggests that the global constitutionalism discourse views the Constitution as its epitome.160 Although this strongly suggests that discourse should start with the Council’s Constitution-promoting role that has not happened.161 Nevertheless, this book makes that case.

Next, Editor-in-Chief Pugh, who commended Paris in 2003 for revealing peace-building’s Western liberal ideology, published in 2011 my UNCA inventory, which reveals what lends peace-building that ideology. How might the UN achieve economic liberalization (identified by Paris as its key peace-building goal)? By helping post-conflict states adopt what it prescribes: the Constitution that the BWIs clearly suggest (see sections 1.1.1–1.2) and Figure 5.3 and Chapters 5 and 6 offer as evidence. Put more directly, helping post-conflict states constitutionalize relevant rights, in ways noted in section 1.2, my Chapter 6 and Table 6.3 provide additional evidence. Consider how might the Units fulfill the three Civilized Standards, including rule of law (identified by Zaum) to become States? Again, why do Paris, Humphreys and Sinclair find colonial continuities in UN peace-building, post-1989 UN-rule of law assistance and the UN’s-state-formation-role respectively? These two questions have the same answer. Indeed, the Constitution produced by UNCA is a key Civilized Standard that underpins the State. Finally, Ratuva’s field-based study confirms my argument that is based on the UN’s official explanations.

How then did I arrive at UNCA? As noted in the preface, my childhood passion to learn about constitutions and international human rights, (in this order) led me to UNCA. Since I was schooled in a former British colony, this passion meant being intuitively conversant with the legal trinity, and so, wanting to learn about the Constitution—and how it intersects with international human rights. Two scholars helped me to arrive at UNCA.162

Eminent constitutional law scholars such as Baxi, Henkin, Ran Hirschl, Howard, Ludwikowski, Osiatynski, and Stephen Gill, a political economist, apparently missed post-1989 UNCA. However, they perceptively saw in the BWIs’ rule of law assistance to promote economic liberalization, a legislative assistance required by the Constitution’s promotion. For instance, Baxi alludes to this point in his 2015 critique of the post-1989’s global rule of law regime, where he cites my UNCA inventory.163 In Chapter 5 of this book, my findings that debtor-states aided by the UN constitutionalize the BWIs’ conditionalities (for example, judicial independence) would hardly surprise Baxi, Gill, Gerrit Gong, and Hirschl.

As a result, when I began to explore UNCA, I found UN documents that shrouded the Constitution (by using other terms for ‘constitution’ and constitution-making), and commentary that ignored it. I gradually realized that UNCA-ITA projects were erroneously cast as ITA only. However, that was not enough. I still had to find the missing piece in the jigsaw puzzle. Here lies the third caveat. Given the Constitution’s famed feature (property rights),164 and my own previous findings about how the BWIs’ conditionalities were re-shaping Indian (Western liberal) constitutionalism along neo-liberal lines,165 I turned to the international political economy discourse. There, I found the non-UNCA writings of distinguished scholars like Baxi, Yash Ghai, Stephen Gill, Issa Shivji, Gerrit Gong, Hirschl, and Jim Tully. Put differently, this small group of non-UNCA scholars recognized the Constitution’s politico-economic significance and focused on the Constitution’s internationalization. For this reason, they logically became my immediate conversationalists and helped me find the jigsaw piece. Gill, Shivji, and Gong focused on the BWIs, and helped me to connect the BWIs’ purposes with those of UNCA’s. Indeed, in virtually all instances, IMF documents provided me with key details about these states’ constitution-making, including their time-lines.

Gill’s following observations resonated with me:

I took Gill’s call seriously, and I engage with Shivji and Gong elsewhere in this book. Shivji showed me why, and how, international financial institutions influenced constitutional design – another under-researched area – in Africa from the 1960s to the late 1980s.167 Tellingly, after Shivji’s 2001 piece, the next short piece on the BWIs’ promotion of the Constitution (by J. Couso) appeared.168 This book starts from 1949, and my submissions dovetail with Shivji’s and Couso’s. Finally, Gong and Tully’s works introduced me to the international “standards of civilization”169 in the eighteenth century, and Western liberal constitutional democracy’s (and by extension, the Constitution’s) imperial role respectively. Gong, Tully, and Baxi (see section 1.8) thus offered me innovative ways of viewing the West’s interventions to remedy developing states’ governance.

In conclusion, I suggest that scholars can hardly be faulted for ignoring the Constitution’s internationalization. On the contrary, the literature has so developed in this way, for four intertwined reasons. First, during the 1990s, fewer scholars had expertise in international constitutional law and avoided this subject.170 Second, international law scholars failed to see the making of the Constitution in the rule of law promotion. These factors explain why Chetail’s Peace-building Lexicon was so formatted. Meanwhile, even if scholars did notice the Constitution’s influence, and its promotion by the UN, hardly anyone questioned the UN’s commitment to produce it in independent states.

Third, as a result, much of the peace-building literature (including what little exists about constitution-making) offers a technocratic appraisal of the projects, where the focus is on whether they have met their goals, and how to improve them. Here, it is useful to note that excellent scholarship coalesced around constitution-drafting (as a technical activity), federalism, power-sharing, and decentralization. These are topics on which many leading Constitutional law scholars—including Baxi, David Cameron (political scientist), Rajeev Dhawan, David Claire Williams, Jill Cottrell, Yash Ghai, Christina Murray, Muna Ndulo, Peter Russell, and Cheryl Saunders –advised constitution-makers across the globe.171 Still, UNCA escaped attention.172 In fact, some of these UN experts and others have themselves drawn from my UNCA inventory.173 For not all constitutional law scholars including comparatists focus on international political economy issues.

A caveat is due here. Professors Ghai and Baxi are two senior scholars who have long noted the Constitution’s politico-economic significance for colonial powers and the BWIs.174 For instance, Ghai notes that Fiji adopted a new Constitution in 1997 to implement the BWIs’ conditionalities.175 I start from where he ends. Meanwhile and understandably, their respective students (for example, Shivji and Celine Tan, see section 1.8) also focussed on the BWIs, thus making not only their own non-UNCA writings but also, their students’ useful for my analysis. Since this is the first work to explore UNCA, I have chosen to unfold its story gradually. Chapter 5 will reveal why fiscal federalism and so on, acquired importance, and conversely, a demand for expertise in them grew.

Finally, ITA, rule of law, UN peacemaking, and state-formation have evolved into huge stand-alone topics. And so, just as it took me a whole book to explore UNCA, ITA, ROL, and UN peacemaking scholars were perhaps similarly constrained. For instance, although UN peacemaking equates with the Constitution’s making, Jeremy Levitt’s analysis of peacemaking and power-sharing in Liberia, Guinea-Bissau, and Sierra Leone misses this aspect. However, Levitt provides constitutional details leading up to UNCA’s use, information otherwise hard to find and valuable.176 (My findings dovetail with Levitt’s, showing that the BWIs shape transitional governments’ power-sharing’s responsibilities; see Chapter 6.)

A Lone Voice in the Field

This brings me to my fourth caveat. In the post-1989 era, scholars of international law, international political economy and constitutional law scholars rarely conversed with each other. This pattern is suggested by the title of a forthcoming peace-building book: Investment and human rights: charting the elusive intersection.177 It helps to look at Figure 1.8. As a result of this lack of cross-communication, the constitutional dimensions of the following post-1989 fields and sub-fields remained un-sketched: international trusteeship; UN peace-building; UN state-building; UN peacemaking; UN rule of law promotion; ITA; global restructuring; and law and development.178 My unique pursuit, exploring how the Constitution intersects with international law, helps to fill in those missing dimensions. Here lies my contribution.

Indeed, virtually nothing existed when I began my research in 2006. Therefore, I initially defined the steps in an internationalized constitution-making process, based on fragmentary sources.

My earlier publication, the first to explore UNCA, questioned its revival in sovereign states. I established UNCA’s use, outside the context of implementing decolonization, in two aspects: post-conflict and development assistance. In the process, I uncovered hidden UNCA projects in many post-conflict as well as stable states such as the DRC, Bhutan, Rwanda, Malawi, Maldives, Zambia, Côte d’Ivoire, and Zimbabwe.179 The UNDP’s 2014 constitutional assistance guidance note cites my work.180

To spur a discussion about UNCA requires revealing its revival and mushrooming in the post-1989 era, in independent states. I did just that in 2012. At David Chandler’s invitation, I contributed a chapter on UNCA to his edited handbook on State-Building.181 I also published the first inventory of UNCA projects in comprehensive peace missions from 1989–2011, concentrating on the making of new constitutions. I showed that for this purpose, from 1989–2011, the Security Council had mandated UNCA in 14 states.182 This book builds on my previous publications to offer the first comprehensive inventory of UNCA projects from 1949–2019. As in my previous publications, here too, the UNCA projects will be so described as to counter the limitations discussed in 1.3. In tracing the events that have led to UNCA’s use, it will identify the BWIs’ role and conditions, besides recognizing the UN Security Council’s promotion of UNCA. (Indeed, in most cases, the Security Council itself calls for the BWIs’ participation in laying good governance’s cornerstone.) Finally, it will map out all the UNCA activities, identifying UNCA’s process-based and content-based activities (see section 1.6), and tabulate the constitutional commonalities produced by UNCA. This will make evident how the UN helped shape both the constitution-making process and the constitutional content.

Meanwhile, few noticed UNCA’s revival, that is, first used in an independent state, during the Cold War, in Congo. Still fewer know that UNCA was revived by the late Dag Hammarskjöld. At the invitation of Carsten Stahn and Henning Melber, I contributed a chapter on just this topic to their edited book, dedicated to this former UN Secretary-General.183 At their behest, I analyzed UNCA’s revival, using the TWAIL theoretical framework. I made three points, of which the first two occur on page 31, and the third is presented here: Hammarskjöld revived UNCA as International Executive Rule ostensibly, in response to Congo, a newly decolonized country’s supposed governance incapacities and to promote free markets there.184 Indeed, as this book will demonstrate, at a deeper level, UNCA’s revival is the story of internationalizing the Third World’s constitution-making to advance the interests, not of the new countries but those of powerful Western states. Most recently, Steven Ratuva and Emmanuel de Groof invited me to contribute a chapter on UNCA to their edited books on ethnic conflict and transitional governance, respectively. De Groof’s book, an outcome of a state-building conference, recognizes that peace-building/transitional governance is a topic requiring an ICL analysis, and calls upon his contributors to provide just that.185

To conclude, I have authored all the peer-reviewed work that exists on UNCA as a distinct theme. I trust that I have created a sturdy foundation that others will build upon.186 Meanwhile, now that UN peace-building has been talked about for 30 years, stand-alone case studies (for example, are Afghanistan; Colombia; Bolivia and neoliberalism) are coming out, which have still not noticed the Constitution’s promotion by the UN, despite its centrality to peace-building/neoliberalism.187 But the case studies affirm my findings.188 For instance, they argue that the UN’s neoliberal policies have favored foreign investors to the detriment of local interests.189 Meanwhile, even where exploring the law’s role in the neoliberal project is the explicit goal, the “supreme law,” the Western liberal Constitution, fails to receive full attention.190 For instance, Brabazon asserts that neoliberalism is a “juridical, political and economic” phenomenon.191 But my book which pays full attention to the Constitution reveals that neoliberalism is first, an international constitutional law phenomenon, and only then, a juridical one, as is argued.192

Here comes my final caveat. My book may be the magnet that pulls together relevant international law and international political economy strands, thus weaving a fuller picture of post-1989 developments. I will revisit this point in section 1.8. It should turn the international law discourse in the right direction, starting a conversation long-overdue, between policymakers and scholars, and between constitutional law scholars and their counterparts in international law and political economy. Figures 1.8 and 1.9 illustrate the state of the discourse, before and after my book’s publication.

1.4 Sources

My sources comprise a wide range of materials. The UN materials cover: Primary and secondary documents including the resolutions of the Security Council and General Assembly, reports of the Secretary-General, peace agreements, UN Guidance Notes and documents from such international financial institutions [IFIs] as the World Bank, the IMF, the African Development Bank [AfrDB], and the Asian Development Bank [ADB]. As “members of the UN family”193 as well as financiers of post-conflict reconstruction and development aid, the BWIs have deeply influenced UNCA, and for that reason their reports, factsheets, and policy papers (and letters of intent submitted to them by states) form a significant part of my sources. The UNDP, UN Environment Programme [UNEP], UN Women (hitherto, UNIFEM), Office of the High Commissioner for Human Rights [OHCHR], UN Office on Drugs and Crimes (UNODC), and UN Children’s Emergency Fund [UNICEF] perform key UNCA functions. I therefore, draw from these agencies’ slides, primers, reports, websites, newsletters, job postings, policy papers, and guidance notes. Reports and other documents shared with me by UN officials, and posted on the websites of peace operations, the Department of Political Affairs [DPA], the Department of Peacekeeping Operations [DPKO], and the UN Department of Economic and Social Affairs [UNDESA] come next.194 Secondary commentary from the fields of law, history, economics, and political science and the constitutions of UNCA-recipients states and other member states complete the list.

From 2006 to 2014, I conducted qualitative interviews and informal conversations with a sample of politicians, UN officials, and other stakeholders involved in some of the relevant constitution-making processes. These interviews have supplemented, expanded upon, or clarified data drawn from the previously mentioned literature.

1.5 The Subject Matter: UN Constitutional Assistance

Defining UNCA requires starting from the Constitution. According to the UN:

The UN clarifies that the constitution defined in 1 above, must be based on the ROL, which is so defined:

The UN obviously recommends and promotes a written constitution. My book is concerned with UNCA’s use in enabling states adopt the (written) constitution as defined in this section, or in reforming their existing constitutions along the lines set out in the Framework. Whether the constitution is obeyed or implemented, lies outside the scope of my enquiry. I am concerned with the bare document (and its provisions), that the UN helps to produce.

1.6 The UN Defines the Constitution’s Making

How does the UN enable a state or a territorial unit’s local actors make, and adopt the Constitution, defined in section 1.5? Before proceeding, it is useful to note three points. First, as previously noted in section 1.0, I use “local actors” to refer to “nationals” (of a state or territorial unit)—the term used by the UN.197 Second, local actors covers those nationals who, owing to conflict, reside outside their respective countries (for example, Afghan refugees in Pakistan). (The UN too, uses nationals in this broad sense). Third, for operational purposes, the UN discusses UNCA under two broad headings: (1) Constitution-making process; and (2) Constitutional content.198 Given this, to consider UNCA’s definition requires knowing the steps in a constitution-making process, and the creation of constitutional content.

According to the UN, a constitution-making process and creating constitutional content comprise the following steps (inclusive list) respectively:199

Constitution-making process: Steps

Crafting constitutional content: Steps

The UN posits that the aforesaid steps (regarding process and content), and the corresponding UNCA activities (mapped out in the tables below), render constitution-making ‘transparent, inclusive and participatory’.200

UNCA Activities

The UN ‘assists’ local actors in conducting the constitution-making process and creating constitutional content, whose steps are listed in section 1.6. The UN either displaces local actors and/or tutors them in carrying out the steps, relating to process and content, outlined in sections 1.6. Accordingly, the UN discusses UNCA in terms of process-related and content-related activities, mapped out below.201

UNCA Actors

According to the UN, providing UNCA mapped out in section 1.6, and Tables 1.2–1.3, entails drawing upon a ‘combination of expertise that resides across various departments and agencies, as well as outside the UN System’202 (see Table 1.4).

UNCA’s Salience

In conclusion, four points about UNCA’s salience deserve mention.

First, the steps in the constitution-making process indicate that elections, (whether to a constituent assembly, or any other representative constituent body) are key milestones. Accordingly, electoral assistance is integral to UNCA (see Table 1.2). However, it is very important to note that, not all UN electoral assistance projects involve the making of a constitution or the reform of an existing one. Put simply, not all UN electoral assistance includes UNCA. A key way the UN shrouded UNCA, was to use the term electoral assistance to cover for it. Since my book is the first to explore UNCA, for my readers and future researchers’ benefit, I distinguish between UN constitutional electoral assistance (UNCEA) and UN electoral assistance. Throughout this book, I focus on, and am concerned only with UNCEA, which covers creating an independent electoral commission that is essential for organizing presidential/parliamentary elections (see Angola, Chapter 6), and so, sequence-wise, precedes UN electoral assistance.

Second, when does UNCA start and end? As the UN itself, clearly indicates, UNCA begins at the negotiating stage, and ends when a new constitution is adopted or an existing constitution has been reformed along stated lines (see section 1.6).203 Where the state is a conflict-torn, and/or post-conflict one, the negotiations, among warring parties typically occur in the context of an internationalized peace process (with constitutional dimensions). In the case of a stable state, the stakeholders’ negotiations occur, for instance in the context of implementing the Millennium Development Goals (MDGs) via a new constitution, or reforming an existing one (for example., development assistance context). Importantly, in both instances, the negotiations cover the state’s implementation of the Conditionalities. In some instances, UNCA may continue even after the adoption of a new constitution, when that constitution is subjected to a review, as occurred in Iraq.204

Finally, the UN affirms that:

1.7 Methodology

As previously noted, this book examines the purposes served by UNCA through Wilde’s Method (Ralph Wilde’s concept of ‘policy institution’ and purposive analysis method).206

According to Wilde, Policy institution’ combines an “institution” (“established practice”) with a focus on “policy”’, that is, the purposes for which the practice is associated or ‘the ends to which the practice is put’.207 Thus, under Wilde’s Method, policy implementation and not policy definition or formulation receives focal attention.208 Further, the word ‘institution’ in Wilde’s ‘policy institution’ stands for a more common meaning of the term as is set out in the Oxford Dictionary: ‘…established law, custom, usage, practice, organization, or other element in the political or social life of a people’.209 Wilde clarifies that although ‘institution’ in his ‘policy institution’ lacks normative value, his adoption of a more common meaning of the term ‘institution’ is, “without prejudice to the question of whether any normativity persists.”210

What does purposive analysis do? According to Wilde, ‘purposive analysis’, analyses:

According to Justice Aharon Barack, the essence of purposive analysis is just what Wilde underscores in the above passage: It is “analysis of the text, not psychoanalysis of its author.”212 I embrace Wilde’s Method, as so explained, for my enquiry about the purposes served by the Constitution’s internationalization by states and/or IOs (including the UN).

1.8 Theoretical Perspectives: Third World Approaches to International Law (TWAIL)

The TWAIL perspective provides an effective means for understanding why in this post-colonial era, poor, debtor, sovereign Third World states are either displaced from, or tutored in the activities of constitution-making. This is so, even though TWAIL scholars have overlooked UNCA, for more or less the same reasons, as their mainstream counterparts in international law. Still, TWAILERS such as Tony Anghie, Upendra Baxi, B.S. Chimni, Sundhya Pahuja, Celine Tan, and Ralph Wilde, (listed in alphabetical order), have provided valuable insights that illuminate some aspects surrounding UNCA.

Barring Baxi, the remainder TWAILERS are noted international law scholars who focussed on international law topics of their choice: Colonialism (Anghie); FTA/ITA (Wilde); the UN’s neoliberal agenda (Chimni); and the BWIs’ conditionalities: PRSPs (Tan) and rule of law (Pahuja) which as previously noted, have become huge stand-alone ones whose constitutional dimension (Dimension), they therefore, legitimately overlooked. (Regarding ITA, as previously noted, Wilde has rightly recognized its constitutional parentage.) But, that is the Dimension I provide, only because I am fascinated with the Constitution and its intersection with international law. Accordingly, I undertake an ICL analysis, which reveals that it: sires FTA; is central to colonialism/international trusteeship; is key to achieving the BWIs’ neoliberal policies which is precisely why they are internationalizing it, after 1989, as a development strategy, subsumed under the ‘rule of law’ label; and from 1999, as a market-oriented poverty reduction strategy by the PRSPs. For this reason, my argument unites with these international law scholars’ as well, and with whom I will engage with at appropriate places, throughout this book, starting from this section. It helps to revisit Figures 1.8–1.9.

I will start with noting TWAIL’s principal tenets here. Indeed, Maria Santos who has surveyed TWAIL literature, has very lucidly summarized them as follows.213 I make additions (see italicized points) to them at appropriate places, based on the insights that I offer in the following chapters.

As a prelude to the next chapter, where I consider the origins of internationalized constitution-making, I engage with Upendra Baxi and Celine Tan here. Indeed, Baxi states that:

In fact, colonial powers used this very rationale to justify imposing the Constitution, whose property rights were key to exploiting the Third World’s resources for furthering their own colonial economic interests. This means that the Constitution’s imposition by foreign states and/or IOs, can also be framed as the internationalization of (domestic) economic decision-making.

Indeed, Tan has framed PRSPs in just these ways.215 Besides this author, Tan is one of the few international law scholars to have noted that, PRSPs mandate constitutional reforms:

However, Tan fails to connect the Constitution (explicitly integral to international law since the eighteenth century) with its launching pad, the PRSPs. She nonetheless, rightly situates the PRSPs within post-colonial international law, by tracing their origins to colonialism, that is, international law’s historical context. Building on Baxi and Anghie, Tan argues that international law has long created, and rested on the ‘dynamic of difference’ between the West (‘civilized’), and the Third World (‘barbaric’).217 Moreover, through their conditionalities, the BWIs coerce Third World states, helping to model and rebuild them along preferred lines. And indeed, the imperial character of international law has both, facilitated and legitimized the PRSPs’ interventions (see above quote).218

I concur wholeheartedly with Tan. I assert: PRSPs reconfigure debtor states’ political landscapes along good governance lines in this way: they launch the Constitution.

1.9 Book outline

This book has two Parts. Part I (Chapters 1–4) provides UNCA’s historical background, and Part II (Chapters 5–10) sets UNCA’s post-1989 rise, center-stage. After establishing that UNCA has seldom been studied before, this first chapter has analysed the particulars of its operations.

Chapters 2 and 3 introduce UNCA’s colonial origins. Chapter 1 establishes that the Constitution provides a framework for the conduct of territorial administration. Accordingly, its internationalized making sired foreign/international territorial administration. Given this, Chapter 2 provides the historical context in which these conceptual ties were forged.

Chapter 3 traces UNCA’s origins through Ralph Wilde’s Family of FTA institutions:

Chapter 3 thus, follows a ‘cross-project’220 focus of analysis, rather than a chronological one. Specifically, I ask whether these institutions “operate in a practical manner in a common fashion, and also manifest important policy connections” regarding their ostensible policies, and purposes/ends.221 Chapters 7 and 9 ask this same question about UNCA, and make the same sequence of moves to answer it.

In my answer, I show that (1) the Constitution’s making is common to all these FTA institutions. Indeed, in each FTA institution, the relevant colonial power (Foreign Power, FP) imposed the Constitution, a Civilized Standard, that is central to trusteeship to achieve these four trusteeship goals or Civilized Standards: (a) free markets; (b) the rule of law; (c) good governance; and (d) civilized social practices. The Constitution provided the framework for (foreign) territorial administration which means, each of Wilde’s FTA institutions is undergirded in a colonially imposed constitution—the Constitution. Put simply, Wilde’s Family is based on, and results from constitutions siring and working together with FTA/ITA. On this basis, Chapter 3 concludes that international trusteeship comprises the Constitution’s (internationalized) making and FTA. So, Wilde’s ‘Family of FTA Policy Institutions’ must be reframed to include the parent policy institution: the Constitution’s internationalized making, particularly as a way to pursue trusteeship goals, that is, set perceived civilized standards. Table 9.1 illustrates Wilde’s family so reframed.

Chapter 4 introduces UNCA’s birth as international trusteeship in 1945, and its use in Libya in 1949, tracing its origins chronologically. To arrive at UNCA’s birth, (drawing partially from chapter 3), I trace the rise, rejection (in 1960), and revival of international trusteeship during the twentieth century. (I start conceptualizing UNCA as a ‘Policy Institution’ from this chapter.) In 1960, the self-determination principle morphed into an absolute right for colonies. Therefore, colonially imposed constitutions and their off-springs, foreign-state or IO-run territorial administrations (FTA/ITA), were automatically rejected. Nonetheless, UNCA and ITA were revived, but only for the limited purpose of realizing the right of self-determination. Put simply, UNCA was used to implement decolonization.

This juncture, the end of UNCA’s historical background, brings us to July 1960, when far from fading, UNCA was revived again, but this time in a sovereign state (the newly decolonized Congo). Chapter 4 analyses UNCA in Congo, showing how it sired and guided ITA there. This juncture, the end of Part 1, brings us to 1990, when UNCA projects, far from ending, began to mushroom in the world of sovereign states.

Chapter 5 analyses the Constitution’s re-appearance in the post-Cold War era as part of establishing UNCA as an ‘institution’. It helps to note that the Constitution’s internationalization in the Third World can also be framed as the internationalization of economic decision-making there. Given this, Chapter 5 considers the milestones marking the internationalization of economic decision-making in the Third World during the Cold War (1950–91), and after Cold War (1991–99). (I have started from 1950 for clarity and continuity instead of starting from 1989.) This chapter’s analysis reveals that this ‘established practic’” (internationalized economic decision-making) culminated with the Constitution’s promotion through two similar, consecutive but differently named conditionalities from 1983–99 and from 1999 till the present day. In order to be launched in 1999, the BWIs first conceptualized it as a rule of law or development (understood as market-oriented poverty reduction) or poverty reduction (so understood) strategy. This chapter aims to offer a macro view of developments, and so, it will cover those milestones in the proportion to which they concern the Constitution’s internationalization in 1999. To that end, it will elaborate on the 1999 milestone: the BWIs’ Conditionality/Poverty Reduction Strategy Papers (PRSPs): which prescribed a ROL or development (so understood) strategy to secure debt-relief: the Constitution.

Having so traced the Constitution’s internationalization to the BWIs’ Conditionalities, Chapter 5 shows how UNCA serves to produce that very constitution and thereby constitutionalize the BWIs’ lending conditions/standards: free markets, anti-corruption measures, and so on. The Constitution is thus, promoted in both “post-conflict,” and stable, but debtor LDCs. But what underpins its making is not the eighteenth century’s ‘civilized’/‘uncivilized’ paradigm, but a newer universal language of development, deployed by powerful western states: The developed countries vs. LDCs’ framework.

I argue that the broad way in which the UN defined ‘conflict prevention’ extended the Constitution, (a Conditionality), to the sphere of development, so understood. As a result, the UNDP was empowered to meld constitutional assistance with development assistance, ostensibly to erase bad economic governance in LDCs, and thereby reduce their poverty and speed their (market-oriented) development. In this way, Chapter 5 analyzes and establishes the two contexts, in which the Constitution is produced: post-conflict and development assistance. Next, it explores how the UNDP frames its constitutional assistance in terms of implementing Public International law and Policy goals (hereinafter Law & Policy goals). The question of how UNCA’s use in the post-conflict context promotes Law and Policy goals is postponed to Chapter 8. Chapter 5 concludes by showing how, although UNCA mushroomed after 1989, it was made public only in 2009, and so, normalized and consequently institutionalized.

With the factors that extended UNCA into sovereign states in hand, Chapter 6 proceeds to show that UNCA fulfills Wilde’s criteria for an ‘established practice’, and so, can be considered manifestations of a parent “institution.” This Chapter therefore catalogues the remainder UNCA projects (1989–2019), prefacing and ending their analytical description with four Tables, Table 6.1, 6.2, 6.3, 6.4, respectively. The first two connect the implementation of the Conditionalities with the Constitution’s (internationalized) making. The third identifies the consequent constitutional commonalities in PRSP/UNCA-recipients-states. The UNCA projects are described in the same order that they appear in Tables 6.1–6.2 and in a way that counters the drawbacks previously mentioned (see section 1.8). This comprehensive inventory, which also underscores the BWIs’ role, offers details never before put together, thus benefiting those who wish to explore individual UNCA projects in-depth. This chapter completes UNCA’s conceptualization as a ‘parent institution’ which began in Chapter 4.

Chapter 7 establishes UNCA as a ‘Policy Institution’. Chapter 7 therefore considers the explanations or justifications put forth by the UN for UNCA’s use in all territorial units, including independent states. Drawing partially on Chapters 4 and 6, this chapter demonstrates that UNCA ostensibly serves to raise the quality of local governance consonant with its (and ITA’s) wide range of standards, including free markets, and women’s rights. Importantly, it argues that UNCA was conceived in response to perceived challenges about the conduct of the constitution-making process by local actors, and the types of content created by them. On this basis, UNCA projects are classified collectively on a purposive level, thus establishing UNCA as a parent ‘Policy Institution’. (Note: I postpone considering until Chapter 9, whether UNCA, in so promoting the ends outlined in this and the previous chapter, pursues two allied policies: trusteeship and the civilizing mission).

Chapter 8 considers how the UN explains the standards promoted by UNCA that Chapter 7 outlines, in terms of implementing Law and Policy goals. This Chapter reveals that until 1993, UNCA-ITA projects were mounted ostensibly to serve as a dispute prevention and settlement mechanism, with a view to promote peace and security through the promotion of the rule of law, free markets, good governance, and modern practices to strengthen women’s emancipation. After 1993, only UNCA (without ITA) served explicitly as a ‘conflict preventive’ measure to promote peace and security. In both periods, (when UNCA-ITA and only UNCA were used), it was the Constitution that implemented these aspects of Law & Policy.

So far, my analysis has shown that colonially imposed constitutions, and the foreign territorial administrations they undergird are parent-child policy institutions. (This relationship can be framed as internationalized constitution-making tied with foreign territorial administrations.) So are UNCA (or internationalized constitution-making) and ITA, which work toward common purposes and ends.

Drawing on the analyses in Chapters 2–4 and 7–8, Chapter 9 establishes the continuation of international trusteeship in sovereign states: UNCA. This chapter answers the question, left unanswered in Chapter 7: Does UNCA, in promoting the purposes and Law and Policy ends, outlined in Chapters 7-8, pursue two allied policies: trusteeship and the civilizing mission? In answering this question, I fully conceptualize UNCA as a ‘Policy Institution’. It establishes that the Constitution (which the UN and the BWIs co-conceptualized as a development strategy), symbolizes financial modernity. This is precisely why the UN ostensibly helps sovereign Third World states, in response to their supposed incapacities, to produce this very constitution, and promote its Law and Policy ends, (outlined in chapters 7–8). In short, UNCA ostensibly serves to ‘modernize’ these states, and thereby ‘strengthen’ their sovereignty, supposedly weakened by their bad self-governance. In this way, this book shows that UNCA-ITA, and only UNCA, operate in a practical manner in a common fashion, and also manifest important ‘purposive connections’. For these reasons, UNCA with and without ITA, fulfills Wilde’s Policy Institution criteria.

Based on these commonalities and continuities, I will establish that the institutions I reframed in Chapter 2, (see list in paragraph three from top), and 2B) UNCA-ITA, and 2C) only UNCA (1993–2018), ‘act in the same fashion in an elemental sense’:222 Indeed, all of Wilde’s reframed institutions ‘are of a piece’.223 In fact, the Constitution heads Wilde’s Family. Its internationalized making, (whether by foreign states and/or IOs including the League/the UN), constitutes Wilde’s Family’s Parent Policy Institution. On this basis, I reframe Wilde’s Family, one last time, to admit UNCA-ITA and only UNCA. I specifically argue that the Constitution’s internationalization represents a continuation of external domination and control in constitution-making in the Third World. I modify Table 3.1 (see Chapter 3) and reproduce it here, illustrating Wilde’s fully reframed family with UNCA-ITA and only UNCA admitted therein.

I conclude the UNCA (international trusteeship) story in Chapter 10, considering how UNCA’s revival in sovereign states escaped the colonial tag. This chapter will show that the UN has invoked ideas rooted in international law to legitimize UNCA’s revival. It will foreground some aspects of UNCA, missed by the legitimizing discourse, to reveal its and therefore, ITA’s colonial continuities. It will show why UNCA’s revival in sovereign states entails deeper implications, and so merits attention: it promotes therein a Constitution that is conceptually a state’s highest law. In this way, I will close on the same theme with which I began this book: UNCA’s salience.

As the first exploration of UNCA, this book establishes the purposes of UNCA projects, engaging with the purpose or standards to which they have ostensibly been put, without addressing the question of whether UNCA projects have managed to meet those purposes or ends. Finally, this first exploration of UNCA does not encompass many of the complex legal issues raised by the activity, such as accountability.