Though constitutional drafting is a national affair, it is not isolated from the international legal setting in which it is embedded. Sometimes, the process of drafting itself may be directly governed by international law (for example, a United Nations mandate). On other occasions, constitutional design may be influenced by incentives generated by international law (such as EU membership). Either way, the creation of a new constitution invariably requires reflection upon the status and role of international law in the normative hierarchy of a country. Using Sudan as a case study, this chapter explores the significant role played by international law in the drafting of the Comprehensive Peace Agreement and the Interim National Constitution of 2005.

This chapter begins by surveying the current literature on constitutional design constitutions for divided societies and constitutional approaches to power sharing. It pays particular attention to the view that constitutions are best understood not as contracts, but rather as coordination devices. An implication of this view for constitutional design is that, in deeply divided societies, successful coordination (and thus successful constitution-writing) may be easier to achieve if the constitution deliberately leaves certain divisive constitutional questions unresolved, with the understanding that those questions will be resolved incrementally over time. Against this theoretical background, the chapter uses the history and constitutional history of Afghanistan to illuminate the challenges of developing a constitution that can coordinate politics in a deeply divided society, and it evaluates the pros and cons of different approaches to constitutional design in such contexts.