GoJIL Vol. 2, No. 3 (2010)
The Two Faces of the Internationalized pouvoir constituant: Independence and Constitution-Making Under External Influence in Kosovo
This article discusses the concept of the internationalized pouvoir constituant with regard to the ICJ’s Advisory Opinion on Kosovo. It argues that independence and constitution-making under external influence in Kosovo represent two faces of the same internationalized constituent power aspiring for self-determination. It is submitted here that the ICJ’s Opinion implicitly recognizes the constitutional law concept of pouvoir constituant and its relevance in international law. While the Court’s reasoning is limited to the legality of the declaration of independence, international involvement in constitution-making in Kosovo equally raises questions of legality and legitimacy under international law. The paper discusses some of these questions by drawing from constitutional law and theory. In order to do so, the article briefly sets out the historical and political context, before describing how the two faces of the internationalized pouvoir constituant evolved during the period of international administration in Kosovo. In the next step, it analyzes the treatment of the constituent power in the ICJ’s Advisory Opinion, and then attempts to assess the legality of international involvement in constitution-making in Kosovo. Finally, it discusses some potential standards of legitimacy for the internationalized pouvoir constituant.
Download the full text as a PDF