New Modes and Orders: The Difficulties of a Jus Post Bellum of Constitutional Transformation

Abstract

This paper asks two questions: Does international law currently contain rules or norms which regulate constitutional transformation of territories under various forms of administration or occupation, and; if the answer is no, should international law develop such norms? The author also answers the second question in the negative, arguing that the international law's silence in this area is productive and that attempting to fill the gap may diminish the "inter-public" nature of international law. The author also questions the theoretical understanding of state-building that permeates current discussions of the role of international law in post-conflict state-building.

Keywords: Constitution-Making, International Law, Law of Occupation, State-Building