L'élaboration extranationale des constitutions des etats en crise : les exemples Irakien et Tunisien

الملخص EN

However, in this case the role of international actors becomes more relevant to intervene in the drafting of a new constitution to promote the democratic transition, by intervening in the internal legal system of states in crisis, with the purpose of a unification of constitutional law for the benefit of citizens, essentially in human rights.

The international foreign intervention on the drafting of a constitution will lead to the deprivation of the constituent power of its legal competence to draw up their own constitution, through the transfer of this power to an international organisation or a coalition.

Which will not result in a democratic constitution, as is the case for Iraq when the American interference in the political and constitutional process prevent in the final the Iraqi people to take control of its own political future, that makes this process an example to not follow in the field of drafting a constitution.

Tunisia as the counter example has overcome its crisis by elaborating a constitution in which all actors participated under the control of the civil society proving it success in the democratic transition.

Before these two experiences, it must be recognised that constitutional consensus in time of conflict and crisis is extremely difficult, and it is an idea that many Arabic countries gained its advantages.

Unfortunately, not for drafting a more democratic constitution but rather to avoid the popular anger or to end it.