jueves, julio 9, 2020

The Honduran Crisis and the Turn to Constitutional Legitimism, Part II: The Pitfalls of Constitutional Legitimism

The Honduran Crisis and the Turn to Constitutional Legitimism, Part II: The Pitfalls of Constitutional Legitimism

In my previous post on this topic, I argued that the international reaction to the Honduran coup potentially augurs a shift in foundational norms governing the relationship between international and domestic legal authority.  I also hinted that I regard such a shift as ill-advised, and noted that some of those in the forefront of the reaction appear to have given little thought to the long-term implications.

As, Doug Cassel’s ASIL Insights analysis notes, “Ordinarily international law imposes its own, autonomous norms for the permissible conduct of a government.  Questions of domestic law – including constitutionality – are left to domestic authorities, both as a matter of their sovereign entitlements, and because they are presumed better able to interpret their own constitution.”  The two reasons that Cassel cites are distinct:  the latter is a matter of respect for a foreign pouvoir constitué, on the ground that standards of legal interpretation are themselves a matter of local law; the former is a matter of respect for a foreign pouvoir constituant, on the ground that where permanently effective, breaches of constitutional order (whether by insurrection or by an existing regime’s pattern of practice) beget their own legality.  For foreign courts, both of these are ordinarily rationales, not for a mere “margin of appreciation,” but for judicial abstention.

However, it is not unknown for international legal questions to turn on a finding about compliance with domestic law, such as where treaty provisions provide that exceptions to specified human rights must be, inter alia, “non-arbitrary” and delineated in domestic law.  In such circumstances, assessing a claim of  violation requires an independent basis for ascertaining the requirements of domestic law.   The criteria for establishing a violation might be relatively deferential, yielding to plausible claims of local expertise in interpreting local norms; interpretation of legal (including especially constitutional) norms depends on all manner of historical, ideological, political, linguistic, and jurisprudential idiosyncracies, and a high court’s authority to say what is lawful counts for much, even in the face of text apparently to the contrary.  Still, one cannot exclude a second-guessing of local judicial authorities on the merits, especially in cases where courts are suspected of participating in a sham.

As Cassel points out, “In order to create a collective regional safeguard for democracy in each country, [the Inter-American Democratic Charter] sets international standards which demand (among other things) that each nation comply with its own constitution.”  This much is established:  a state’s compliance with the IADC, and thus, at minimum, with OAS terms for participation, turns on a determination about compliance with domestic law.  Compliance with the IADC and domestic law may also bear on the state’s fulfillment of the requirements of the right to political participation under Article 23 of the American Convention on Human Rights.

But default in these respects, without more, would not have the legal consequence of making Honduras susceptible to coercive measures that would otherwise constitute unlawful intervention (putting aside, for the moment, the question of what might count as a legally appropriate countermeasure).  The crucial question is whether a de jure government could “consent” on the state’s behalf to such coercive measures directed against the de facto government.  This would be the upshot of a finding, not only that the constitution has been breached, but that the breaching act is consequently null and void, and that the displaced government remains the state’s agent for purposes of international law.  When states proclaim that they continue to “recognize” the Zelaya government, is this what they are saying?

Here, I contend, the case has not been well made, as a matter of either lex lata or lex ferenda.  Apart from the lack of a clear basis for this outcome in the IADC and the OAS Charter, Articles 2(1), 2(4), and 2(7) of the UN Charter, in conjunction with Article 103, may constrain an existing government’s capacity to render advance consent to otherwise-unlawful foreign interference in internal affairs, at the expense even of a future government that breaches the state’s international legal obligations.  The one well-discussed example of such an agreement, the Treaty of Guarantee that attended Cypriot independence, has always been controversial in this regard (quite apart from Turkey’s invocation of the treaty in 1974 to rationalize acts incompatible with the treaty’s terms).  Furthermore, there would be little question about the invalidity of a pact among authoritarian states to take coercive action to restore authoritarian rule wherever it might be ousted (essentially, the Brezhnev Doctrine).  Only a full-fledged international “right to democratic governance” could validate an agreement licensing intervention, and it is hard to believe that the unanimous assent to UNGA Resolution 63/301 (2009) represents the opinio juris to this effect of Cuba – one of the resolution’s sponsors – let alone of Russia, China, Saudi Arabia, Myanmar, and so on.  (The resolution calls on states to “recognize no Government other than that of the Constitutional President,” which might refer to the withholding of political affirmation, as distinguished from a legal determination that Zelaya’s government, and no other, has standing to assert Honduras’s sovereign rights in the international order.)

Ironically, President Zelaya’s own political agenda is incompatible with constitutional legitimism; many of the same external legal analysts who find his ouster to violate the Honduran Constitution condemn as unconstitutional his own efforts to revise the Constitution, and even find those efforts to be a basis for removing him (albeit in a more orderly manner) from office.  (Contrary to skewed accounts traceable to his opponents’ rationalizations of the coup, the planned poll on establishing a constitutional assembly would in no event have led to Zelaya’s continuation in office beyond his current term, and specific revision proposals focused on constitutionalizing labor rights and public control of the telecom and power industries.)  Even more ironically, Zelaya’s strongest international backers – Presidents Hugo Chavez of Venezuela and Daniel Ortega of Nicaragua – have repeatedly faced objections to the constitutional propriety of their modes of governance.  Venezuela’s 1999 constitutional revision, though accomplished with strong popular support, was accompanied by significant breaches of the then-existing constitutional order – whether for worse or, quite possibly, for better.

Cassel states, “To the extent that democracy depends on constitutionalism, this incorporation of domestic law into international law is unavoidable.” But constitutionalism depends on many things besides adherence to any particular constitutional norm or even whole constitution.  It is hard to see why particular constitutional orders that are plausibly flawed, whether as perceived from the left or from the right, should have a claim to international reinforcement (especially where, as in Honduras, they limit popular participation in the process of constitutional revision).

Moreover, democracy depends on many things besides constitutionalism.  While democratic practice cannot be sustained for any length of time without a constitutionalist ethos – a commitment to establish, maintain, and respect a broadly acknowledged framework for the legitimate exercise of power – it does not follow that all departures from that ethos are inimical to democracy.  From a left-wing perspective, in conditions of extreme economic disparity and social stratification, liberal-democratic constitutional forms are consistent with a substantive political inequality that belies the “democratic” imprimatur; in the face of concentrations of economic and social power, a concentration of political power may be necessary to change the game.  From a right-wing or even a centrist perspective, there are different conditions that may justify exceptional appropriations of power.  Where such assertions are facially plausible and are embraced by substantial constituencies, the words “essentially within the domestic jurisdiction” express the principle of sovereign equality so central to the international legal order that we have lately known.

Constitutional legitimism is not a new idea.  In 1907 and 1923, Central American countries concluded agreements embodying the so-called Tobar Doctrine, which called for collective non-recognition of the outcomes of unconstitutional seizures of power.  This doctrine served less to safeguard manifestations of popular will than to secure the power of a transnational club of ruling elites, backed by the regional hegemon; the outcome was to facilitate the demise of governments uncongenial to the U.S.  (A 1927 State Department memo put the point bluntly: “Until now Central America has always understood that governments which we recognize and support stay in power, while those we do not recognize and support fall.”)  By the early 1930s, the Montevideo Convention on the Rights and Duties of States had marked Latin America’s embrace of the non-intervention norm, and the Tobar Doctrine was supplanted by the effective control-oriented Estrada Doctrine.

Remarkably, the anti-interventionist impulse in Latin America – associated predominantly, of course, with left-wing politics – has here given way to the demand to restore a left-leaning populist head of state who has been ousted by the military with the support of the conservative political and legal establishment.  Politically speaking, this is less anomalous than it appears, as Latin Americans have often regarded military coups as indirect manifestations of U.S. domination.  Notwithstanding the Obama Administration’s stated opposition to the Honduran coup (in stark contrast to the Bush Administration’s initial embrace of the abortive 2002 Venezuelan putsch against Hugo Chavez), doubts about the depth of the U.S. commitment to Zelaya’s restoration remain.  The Honduran military has long enjoyed a close relationship with the U.S., most notoriously during its “dirty war” in the 1980s against insurgents and suspected subversives.  There is no political inconsistency in anti-imperialists calling for intervention against a regime that they associate, in political and ideological terms, with the ills of imperialism.

International legal norms, however, cannot be sensitive to such considerations.  Their political value stems precisely from their transcendence of partisanship in the individual case.  If one’s invocation of legal propriety is to be taken seriously – thereby to garner support from bearers of opposing interests and values who nonetheless share a stake in the international rule of law – one must be prepared to stand up for the legal rights of the “bad guys,” as well.

Of course, heads of state around the world likely recoil at the sight of their Honduran counterpart being rousted out of bed and dragged off to exile in his pajamas.  More seriously, there is much to be said for bringing external political pressure against militaries that intervene in political processes.  But the Honduran coup’s strongest opponents – those who support Zelaya on the political merits – should, on reflection, be precisely the ones to affirm limitations on the legally permissible extent of such pressure.  A response that licenses presumptively unlawful interferences in internal affairs threatens, in the longer run, to undermine the legal position of forces for social change.

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