Constitutional Limitations of Sovereignty Imposed by Foreign Powers after the Second World War

Mikić, Vladimir (2024) Constitutional Limitations of Sovereignty Imposed by Foreign Powers after the Second World War. In: Thematic conference proceedings International Scientific Conference The dynamics of modern legal order (2024 ; Kosovska Mitrovica). University of Priština, Faculty of law : Institute of criminolоgical and sociological research : Institute of comparative law, Kosovska Mitrovica : Belgrade, pp. 133-145. ISBN 978-86-6083-096-0

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Abstract

Modern-day states adopt constitutions in accordance with free political will of their citizens and their representatives, and within their more or less autonomous constitutionaladopting capacities. However, several actual constitutions do not fit into the pattern. Two of them are truly comparatively notable – the constitutions of Germany and Japan –and the other three represent a peace-seeking reflection of foreign powers’ political interests included in the fundamental legal basis of post-conflict states. They contain somewhat unique, though not that replicable and reusable institutional frameworks. This is the case with constitutions of Bosnia and Herzegovina, Afghanistan, and Iraq. All of the five analyzed constitutions share one historically original similarity: they were not freely drafted by relevant domestic political representatives. Rather, they were inspired, conceived, or, in fact, written by foreign political or military forces – some legal scholars would say: occupying powers. The paper aims at discovering the truly foreign (imposed) nature of the analyzed constitutions, and intends to search whether these acts were conceived to serve as long-term normative projects, or merely as a temporary basis for enabling more stable, permanent state-building legal documents. Although there are numerous proofs that these states’ sovereignty is made to appear limited, some of the components of the analyzed countries’ constitutions indicate that those countries, at least nominally, are sovereign, which opens up space for assessing the ‘honesty’ of the constitution-drafters. Whether the examined constitutions do leave place for national sovereignty to be expressed in practice remains the central point of interest of the paper.

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