United Nations Constitutional Assistance

This chapter draws on the purposive analysis from the previous chapter to consider how UNCA with, and without its child, UN Territorial Administration (ITA) serves to implement certain areas of international law and public policy. It considers how the Constitution and its four ends (e.g., free markets; good governance; women’s rights) fit within the UN Charter framework. The Constitution which underpins the territorial state and confers territorial status, became in 1993, the UN’s core conflict-prevention tool. Moreover, from 1993 onwards, UNCA operated without plenary ITA in sovereign states. Given this, UNCA’s role covers four areas: (1) Right to self-determination (external and internal dimensions); (2) Conflict-Prevention; and (3) achieving public policy ends (e.g., ‘saving failed states’ and achieving good internal governance); and (4) the promotion of international policy in the area of peace and security, including peacemaking, peacebuilding, and peacekeeping. This Chapter underscores the Security Council’s key role in mandating UNCA and establishes UNCA’s salience vis-à-vis ITA. It concludes that UNCA amounts to the UN’s most intrusive form of intervention.

The Western Liberal Constitution’s Internationalized Making

This chapter chronologically traces the Western liberal Constitution’s internationalization from 1919-1960 to establish UNCA’s birth in 1949, rejection in 1960 and revival in 1960. This chapter comprises three sections. Section 1 traces a rise in the Constitution’s internationalization from 1919 to 1960. Section two covers the United Nations’ role from 1949-1952 in assisting Libya, a former Italian colony, adopt the Constitution and emerge independent. UNCA was rejected in 1960 because the right to self-determination morphed into an absolute right for all colonies, whereby they henceforth enjoyed a right to sculpt constitutions of their choice. At this juncture, UNCA serves a limited purpose: to implement decolonization. Section 3 outlines former UN Secretary-General, Dag Hammarskjold’s economic philosophy and his efforts at reviving united nations constitutional assistance to ensure Congo morphs into a market democracy. A discussion of the UN’s constitutional assistance from 1960-64 reveals that its use had nothing to do with perceived local incapacities for governance and how it spawned and guided UN or International territorial administration (e.g., law-making) there.

The Western Liberal Constitution’s Rise post 1989

This chapter analyses United Nations Constitutional Assistance’s post-1989 rise, setting the stage for Chapter 6. It traces the Constitution’s internationalization from 1950, focussing on its conceptualization after 1989, as a rule of law strategy, and from 1999 onwards, as a ‘development’ understood as a ‘market-oriented poverty reduction’ strategy. It establishes that the Constitution, so conceptualized by the UN and the Bretton Woods Institutions was promoted in two contexts: post-conflict and development assistance. It was promoted ostensibly to achieve international law and policy ends: free markets, good governance, the rule of law and women’s rights. How the UN Development Programme melds constitutional assistance with development assistance to achieve international law and policy ends, receives focal attention. This chapter concludes that the good governance story is not about the promotion of the ‘rule of law’ or ‘development.’ Rather, it is about the internationalization of the Constitution subsumed under the ‘rule of law.’

United Nations Constitutional Assistance

This chapter establishes United Nations Constitutional Assistance (UNCA) as a significant but uncharted international and constitutional law topic. UNCA is defined as a set of activities undertaken to produce/internationalize the Western liberal constitution. The Constitution’s salience is outlined to show that UNCA: sires UN/International Territorial Administration; is salient vis-à-vis the UN’s assistance in all other sectors (e.g., electoral, judicial, rule of law); and underpins UN peacebuilding/UN Statebuilding. This backdrop sets the stage for the book’s mission: to analyze UNCA through the concept of ‘Policy Institution’ and Purposive Analysis (analysis of the UN’s official statements). Which is: to investigate and identify the Constitution’s internationalization by international organizations (e.g., the League of Nations and the United Nations); to analyse how the Constitution and its purposes fit into international law and public policy; to consider how states internationalized the Constitution to achieve colonial trusteeship; and to explain how the legitimacy of UNCA with, and without ITA might be appraised in the light of this analysis.

United Nations Constitutional Assistance

This chapter conceptualizes UNCA as an ‘institution’ or ‘established practice.’ Towards this end, it maps out UNCA’s use to produce the Western liberal constitution, conceptualized as a rule of law/development strategy (discussed in Chapter 5) from 1989-2018 in Asia, Asia-Pacific, Africa, Eastern Europe, the Caribbean and Indian Ocean regions and Latin America. In this way, UNCA’s use in the post-conflict and development assistance contexts is covered. This chapter also covers the five UNCA-ITA projects, explaining how UNCA gave rise to and governed ITA’s role. The role of UN Family members such as the Bretton Woods Institutions and the United Nations Development Programme in shaping constitutional content is underscored. This chapter tabulates the constitutional commonalities produced by UNCA: the common constitutional provisions in all UNCA-recipients-states (e.g., constitutional supremacy; foreign investor protections, and anti-corruption commissions). On this basis it concludes that the UN promotes a one-size-fits-all model in all states, conflict-torn and stable.

Internationalizing the Western Liberal Constitution

This chapter traces United Nations Constitutional Assistance’s historical origins non-chronologically through Ralph Wilde’s family of Foreign Territorial Administration (FTA) policy institutions. It reveals that the following entities internationalized the Western liberal constitution: States, groups of state groups of state representatives, and the League of Nations (including the Permanent Mandates Commission. These predecessors of the UN did so to achieve four common ends: free markets, the rule of law, good governance (including natural resources’ exploitation), and civilized standards, aimed at emancipating women. This chapter establishes that the Constitution gives rise to, and works with each of Wilde’s FTA or international territorial administration, ITA institutions toward common ends. Wilde’s Family reflects the conceptual relations that Chapter 2 established. Wilde’s Family comprises symbiotic parent-child Policy Institutions: The Constitution’s internationalized making and FTA/ITA. On this basis, this chapter argues that Wilde’s Family must be reframed to admit the former: The Parent policy institution.

United Nations Constitutional Assistance

United Nations Constitutional Assistance (UNCA) was conceived as colonial/international trusteeship in 1949. This chapter considers how the United Nations (UN) revived UNCA in sovereign states but escaped the colonial tag. Based on the UN’s official explanations, it is argued that the UN has deployed ideas rooted in international law to legitimize tutoring local actors in order that they adopt the Western liberal constitution. The UN’s four arguments therefore concerns this Constitution. The first is this constitution’s universality; the second is the neutrality of the actor producing or internationalizing this constitution which makes such internationalization non-exploitative; the third is the lawful authorization of the constitution’s internationalization which provides a legitimate basis for producing it; and finally, the temporary nature of the UN’s constitutional assistance which makes the internationalization of constitution-making temporary and so, legitimate.

United Nations Constitutional Assistance Continues Its Civilizing Role

This book asks: Why has the UN empowered itself to offer constitutional assistance in sovereign Third World states? This Chapter, which draws from the UN’s official explanations completes the answer. It shows that since its birth in 1949, UNCA has: a) assisted colonies and/or sovereign states adopt what is central to colonial trusteeship: the Western liberal constitution; b) worked in response to perceived problems with their constitution-making process and the type of constitutional content they create; c) worked to achieve four ostensible ends: free markets, the rule of law, good governance (including natural resources exploitation), and civilized customs, and their modern equivalent: women’s rights; d) served ostensibly to civilize/ ‘modernize’ Third World peoples, in market-oriented ways, with a view to either manufacture their sovereignty, or ‘strengthen’ it. In these ways, since its birth, UNCA has acted as international trusteeship. Therefore, so does its child: UN/International Territorial Administration. This chapter concludes that UNCA has spawned a new civilized standard: participatory constitution-making.

How Does the UN Justify Offering ‘Constitutional Assistance’ in This Post-Colonial Era?

This chapter analyses the UN’s official explanations for assisting states in adopting the Western liberal constitution. It considers how the UN officially explains tutoring local actors in the conduct of, what it admits is inherently a ‘sovereign process,’ and in the creation of what it admits is inherently, a sovereign document. In this way, UNCA’s justificatory framework is established to explore (in the next chapter) its use to fulfil international law. UNCA projects ‘manifest commonality on a purposive level.’ UNCA has been conceived as a response to one or both of two types of a perceived constitution-making problem. First, UNCA works in response to a problem perceived with the conduct of constitution-making by local actors. Second, UNCA works in response to a problem perceived with the constitutional content created by them. This Chapter concludes that UNCA, a parent Policy Institution guides its child, UN or International Territorial Administration’s (ITA) policy role.

The Western Liberal Constitution’s Internationalized Making Sires Foreign Territorial Administration

This is the first and the shorter of two chapters that establishes United Nations Constitutional Assistance’s (UNCA) historical background. UNCA equates to the internationalization of the Western liberal Constitution which provides a blue print for territorial administration. This chapter, therefore, provides the historical context in which the Constitution’s conceptual ties with territorial administration were forged. It establishes that from 1700-1960, Western colonial powers imposed the Constitution to establish foreign territorial administration to achieve common ends: free markets, rule of law, good governance, and civilized practices. In this way, Colonial powers colonized Third World peoples, ostensibly acting as trustees to ‘civilize’ them. This sets the stage for tracing UNCA’s origins non-chronologically (in the next chapter) through Ralph Wilde’s Family of Foreign Territorial Administration (FTA) policy institutions, of which Colonialism is the first.