Linking the international legal framework to building the formal foundations of a "state at risk": constitution-making and international law in post-conflict Afghanistan.

• Author: Schoiswohl, Michael

Abstract

This Article describes and critically assesses the recent constitution-making process in Afghanistan in relation to the international legal framework. The Article provides an account of that process within the larger context of the state-building efforts as envisioned in the 2001 Bonn Agreement. Focusing on the interaction between national state-building and international normative benchmarks, the Article evaluates the extent to which the recently adopted Constitution links to the international legal framework. While paying lip service to the adherence of international law, including international human rights law, the Constitution does not adequately address the relationship between international legal obligations and municipal law. This Article argues that the failure to adopt a specific mechanism as to how international law can be effectuated within the internal legal system provides ample leeway for an application of the Constitution which may challenge Afghanistan's commitment to abide by its international obligations.

TABLE OF CONTENTS I. INTRODUCTION II. THE INTERNATIONAL LEGAL FRAMEWORK FOR THE REBUILDING OF AFGHANISTAN (THE "BONN PROCESS") III. OVERVIEW OF THE CONSTITUTION-MAKING PROCESS IN AFGHANISTAN UNDER THE INTERNATIONAL LEGAL FRAMEWORK IV. THE MAIN FEATURES OF THE 2004 CONSTITUTION A. Background B. The 2004 Constitution--A Brief Overview and Discussion of its Main Features 1. The Role of Islam and Constitutional Review 2. A Strong President 3. Centralism 4. Ethnic Diversity and Minority Rights 5. Fundamental Rights of Citizens and Non-Discrimination V. THE 2004 CONSTITUTION AND INTERNATIONAL LAW--A "LOVE AND HATE" RELATIONSHIP A. Brief Look at the Theory: International Law and Municipal Law B. Afghanistan's Constitution and International Law C. Legal Uncertainties and Missed Opportunities VI. CONCLUSION: ASSESSMENT, LESSONS LEARNED AND DILEMMAS INHERENT IN MULTILATERAL CONSTITUTION-MAKING AND STATE-BUILDING I. INTRODUCTION

In many ways, Afghanistan has served as a test case for the international community's ability to promote the establishment of democratic structures in a particular risk-state. As an extension of the discourse on "humanitarian intervention" and inspired by the assumption that non-democratic regimes and collapsed states pose a threat to international peace by providing a breeding ground for international terrorism, multilateral and even unilateral interventionism in the name of democracy is increasingly eroding the opacity of state sovereignty. (1) Regime-change through the use of force is becoming a legitimate, though not necessarily legally justified (2) means of ensuring that democratic principles are either upheld or introduced in a given state at risk. With regard to the latter, the assumption is that democratic structures will ultimately serve international peace and stability by fostering human development and conflict prevention. (3) Thus, peace-building has become a matter of state-building with international institutions, such as the United Nations and its various agencies promoting the establishment of democratic institutions as the basis for "good governance." (4) In either directly assuming functions of territorial administration or supporting transitional authorities in establishing participatory structures of governance, (5) the United Nations has become an "active participant in managing profound social and political transformations within sovereign states," (6) exposing itself to the risks of "social engineering" by transplanting "western models of social, political and economic organization into war shattered states." (7) Contrary to the cases of Kosovo and East Timor, however, the United Nations in Afghanistan has, under the charismatic leadership of the Special Representative of the Secretary General, Lakhdar Brahimi, (8) followed a "light footed" approach, limiting its mandate to providing assistance to the transitional authority. (9) This approach, though often criticized for being entirely rhetorical and inadequate, (10) builds on the assumption that the role of the United Nations should be limited to that of partner, rather than sovereign administrator, to facilitate state-building "owned" by the national authorities. (11) Inherently an exit strategy, the light footed approach seeks to limit the level of dependency created by the assumption of direct executive functions so the departure of the United Nations will not result in a reversal of reforms undertaken.

Since December 2001, the United Nations, in conjunction with bilateral initiatives, worked towards the establishment of democratic institutions in post-Taliban Afghanistan. Under the mandate of the "Bonn Agreement," (12) and the recently adopted Afghanistan Compact, (13) the United Nations has supported the implementation of the roadmap for the establishment of the interim administration and the introduction of constitutional as well as legislative reforms necessary for the functioning of a democratic state. As noted in the recently released National Human Development Report,

the process envisaged in Bonn was built on the international community's assumption that a democratic and representative state would allow Afghans to exit the vicious cycle fuelled by a history of internal armed conflict, natural disasters and underdevelopment, as well as foster stability in the region, which would cut the roots of terrorism. (14) To generate continuous donor support (i.e., bilateral and multilateral funding), references to the need to build a democratic Afghanistan in furtherance of international peace and stability are often made. (15) However, one should be cautious in viewing Afghanistan entirely through a realist security paradigm because there is a risk of focusing exclusively on specific security related issues, such as military campaigns against the remnants of the Taliban and the security sector reform, to the detriment of an overall human development agenda. (16)

While most would agree on the ultimate "vision" for Afghanistan, namely the existence of a democratic state in which human development can thrive, (17) the question of the means by which it can be attained remains subject to contention. It is inherent in the United Nations' mandate, particularly the requirement of consent by the affected state in cases falling short of any Chapter VII enforcement measures--that the international community adopt an institutional approach to state-building ("top-down")--in the hope that services provided by newly built or reformed institutions of governance will eventually trickle down and generate the level of acceptance required for a state structure to become effective. Such an approach, when preached and practiced exclusively, no doubt merits substantial criticism, particularly in the dimensions of the rule of law paradigm. (18) However, when it comes to laying the foundation of a democratic state in a post-conflict context, such as Afghanistan, it seems indispensable to focus first on re-creating an enabling political environment, i.e., basic state structures and their underlying legal framework (legislature, executive, and judiciary), for development and stability to evolve. (19) In a way, this institutional approach is premised on the assumption that feeding the chicken will ultimately generate the eggs. For these democratic institutions to evolve on the basis of certain democratic legal parameters, it is necessary to carve out a formal framework that would function as the conceptual foundation for all branches of government. (20)

The basic legal framework of a modern democratic state is promulgated by a constitution that serves as the basic law of the state. In the aftermath of non-democratic regimes, the process of constitution-making is as important as the product--the Constitution itself. A Constitution that does not adequately reflect the will of the majority and thus is not commonly accepted will suffer from a lack of effectiveness that threatens to undermine the emergence of a culture of constitutionalism. (21) Naturally, any attempt at constitution-making will grapple with the tension between adopting a revolutionary or evolutionary approach and always entails a considerable measure of imposition by a minority--the drafters--on the majority the constituents. (22) The democratic deficit inherent in the self-appointment of a transitional authority mandated to re-institute permanent state structures after civil war can only be overcome by designing a process that sufficiently allows for the emergence of a democratic dialogue and participation. Naturally, transitional authorities, particularly those emanating from the victorious party of an internal armed conflict, will be reluctant to cede powers and share governmental authority with representatives from the defeated camp. However, in circumstances such as the one prevailing in Afghanistan in late 2001, where the international community or a few exponents of "regime change" had effectuated the main thrust for the ousting of the non-democratic regime, (23) it was feasible to gradually introduce democratic processes to furnish the legitimacy of the future state and its administration. In inducing democratic--i.e., participatory--processes, the primary focus will be on the holding of presidential and parliamentary elections and not necessarily on processes envisaged for crafting a new constitutional framework which is to provide the legal terrain on which the elections can be held. However, public participation in the building of the foundations of a democratic state has been seen as a valid and effective means of furnishing an emerging culture of democracy. (24) In fact, numerous claims were made by national and international actors that the constitution-making process needed to be as participatory as possible to safeguard the legitimacy of the outcome, thus creating an environment for democracy to thrive. (25) This becomes...