Comments on: The Honduran Crisis and the Turn to Constitutional Legitimism, Part II: The Pitfalls of Constitutional Legitimism http://www.ejiltalk.org/the-honduran-crisis-and-the-turn-to-constitutional-legitimism-part-ii-the-pitfalls-of-constitutional-legitimism/ Blog of the European Journal of International Law Tue, 27 Jul 2010 20:07:35 +0000 http://wordpress.org/?v=2.9.2 hourly 1 By: Matthias http://www.ejiltalk.org/the-honduran-crisis-and-the-turn-to-constitutional-legitimism-part-ii-the-pitfalls-of-constitutional-legitimism/comment-page-1/#comment-466 Matthias Tue, 06 Oct 2009 10:27:49 +0000 http://www.ejiltalk.org/?p=1589#comment-466 Thanks for this follow-up on your previous, and very enlightening, post. I can agree that there is something problematic in the concept of ‘constitutional legitimism’ as a justification for coercion. On the other hand, it has been used to justify interventions in more recent episodes, although these might perhaps have been somewhat forgotten. Security Council Resolution 940(1994) comes to mind: authorization of the use of force to reinstate a <i>de jure</i> leader (Jean Bertrand Aristide) against a <i>de facto</i> regime that had not been recognized internationally. The difference with Honduras is that the <i>de facto</i> regime claims to have applied the Constitution, whereas the military coup in Haiti, if my memory doesn’t betray me, made no such claims. The point seems to me, in the end, whether a claim of ‘following constitutional rules’ should automatically disqualify any attempt by the international community to scrutinize the process. From an international human rights law perspective the answer is no – as the IACHR and other regional courts regularly scrutinizes rights violations that are allegedly in compliance with constitutional precepts –, and from a UN SC perspective it would seem that Resolution 940 (1994) gives at least some support to the notion that ‘effective control’ does not exclude the possibility of the international community intervening to restore ‘democratic order’. There are obvious problems with foreign intervention based on constitutional legitimism, as exemplified in international reactions to Venezuela’s 2002 coup (where the OAS requested a return to democratic normality via elections, but not a return of Chavez to power), or the mediation of the OAS in the Bolivian Gas conflict of 2002 (where foreign political pressure was not on the Sanchez de Losada regime, which had killed 57 protesters, but rather directed against popular protests, with demands for ‘respecting the constitutional establishment’). Just to add to the debate I thought I'd bring to your attention the recent criticism of Guatemala, regarding the manner in which it has elected Supreme Court Justices, an appraisal based essentially on the apparent circumvention of domestic law, and its potential impact on impunity: http://www.un.org/apps/news/story.asp?NewsID=32422&Cr=Guatemala&Cr1= Thanks for this follow-up on your previous, and very enlightening, post. I can agree that there is something problematic in the concept of ‘constitutional legitimism’ as a justification for coercion. On the other hand, it has been used to justify interventions in more recent episodes, although these might perhaps have been somewhat forgotten.

Security Council Resolution 940(1994) comes to mind: authorization of the use of force to reinstate a de jure leader (Jean Bertrand Aristide) against a de facto regime that had not been recognized internationally. The difference with Honduras is that the de facto regime claims to have applied the Constitution, whereas the military coup in Haiti, if my memory doesn’t betray me, made no such claims.

The point seems to me, in the end, whether a claim of ‘following constitutional rules’ should automatically disqualify any attempt by the international community to scrutinize the process. From an international human rights law perspective the answer is no – as the IACHR and other regional courts regularly scrutinizes rights violations that are allegedly in compliance with constitutional precepts –, and from a UN SC perspective it would seem that Resolution 940 (1994) gives at least some support to the notion that ‘effective control’ does not exclude the possibility of the international community intervening to restore ‘democratic order’.

There are obvious problems with foreign intervention based on constitutional legitimism, as exemplified in international reactions to Venezuela’s 2002 coup (where the OAS requested a return to democratic normality via elections, but not a return of Chavez to power), or the mediation of the OAS in the Bolivian Gas conflict of 2002 (where foreign political pressure was not on the Sanchez de Losada regime, which had killed 57 protesters, but rather directed against popular protests, with demands for ‘respecting the constitutional establishment’).

Just to add to the debate I thought I’d bring to your attention the recent criticism of Guatemala, regarding the manner in which it has elected Supreme Court Justices, an appraisal based essentially on the apparent circumvention of domestic law, and its potential impact on impunity:

http://www.un.org/apps/news/story.asp?NewsID=32422&Cr=Guatemala&Cr1=

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