The Honduran Crisis and the Turn to Constitutional Legitimism, Part I: The Place of Domestic Constitutional Orders in the International Legal Framework

The Honduran Crisis and the Turn to Constitutional Legitimism, Part I: The Place of Domestic Constitutional Orders in the International Legal Framework

Who is the current President of Honduras?  Far from the stuff of quiz shows, this question bears on the very foundations of international law.  The international reaction to the June 28, 2009 ouster of President Manuel Zelaya, though superficially similar to earlier repudiations of coups, is in important respects unprecedented.  Its implications have a profundity that few international actors – least of all, President Zelaya’s strongest international political allies – seem to have considered.

A decade ago, I explored at length the question of Governmental Illegitimacy in International Law.  The title was initially intended as a provocation, since the legitimacy of governments had ordinarily not been considered a proper object of international law.  It had largely been taken as a given that a ruling apparatus exercising “effective control through internal processes” – whether or not formally “recognized” – would be acknowledged to have legal standing to assert rights, incur obligations, exercise powers, and confer immunities on behalf of the underlying sovereign entity that enjoyed membership in the international legal order.

The primary inspiration for my mid-to-late 1990s book project was the international repudiation of the 1991 overthrow of Haitian President Jean-Bertrand Aristide, followed by a similar reaction to the 1997 ouster of Sierra Leonean President Ahmad Tejan Kabbah.  These international responses went far beyond a denial of “recognition,” in the diplomatic sense in which that term was ordinarily understood.  Rather, the authority of the de facto regime was asserted to be null and void for purposes of international law, including for purposes of asserting the state’s theretofore supposedly “inalienable” right against forcible intervention.  These events were accompanied by a growing scholarly literature, pioneered by Thomas M. Franck and Gregory H. Fox, on an “emerging right to democratic governance” in international law, as well as bolder suggestions by others, such as W.  Michael Reisman, that pro-democratic armed intervention could be reconciled with emergent understandings of the international peace and security order.

The mission of my book was largely to resist an overreading of events of the 1990s:  to assert that while much had changed, even more had thus far remained the same, and that the reactions to the Haitian and Sierra Leonean crises, dramatic though they were, represented incremental rather than radical change.  “Effective control through internal processes” remained the presumptive criterion of the legal standing of a governmental apparatus, by virtue of being the presumptive application of the principle of popular sovereignty in the absence of objective indicators and processes for associating a deposed government with popular will.  Exceptions arose where the vast diversity of international actors, cutting across the international system’s plurality of interests and values, could perceive in common a population’s manifest will to restore an ousted government.  The circumstances surrounding the Haiti and Sierra Leone coups – including but not limited to landslide victories of the ousted Presidents in very recent, internationally-monitored elections – suggested little ambiguity in this respect.  Other coups may be disfavored politically, or even regarded as breaches of binding international commitments, but it would not follow that they would be ineffective in establishing a regime’s standing to exercise the state’s sovereign rights in the international order.  Reactions to other coups in the mean time (including, ironically, the 2004 ouster of Haiti’s Aristide) have not given cause to revise this conclusion.

The Honduran situation, however, is much harder to contain within this framework. While the position that the international community uniformly taken toward the crisis might be rationalized as an unusually robust interpretation of the rule against “premature” recognition of an internally-contested change of government — a rule predicated on the non-intervention norm – the accompanying rhetoric of the international community, including a unanimous UN General Assembly demand for Zelaya’s restoration, contradicts that interpretation.  Meanwhile, the case for continued recognition of Zelaya, as well summarized in Doug Cassel’s ASIL Insight, rests exclusively on an interpretation of the Honduran Constitution that, however well grounded in the text, has been overwhelmingly rejected by established Honduran judicial and legislative institutions.  Far from being manifestly the people’s choice, Zelaya is a narrowly elected President nearing the end of his term, disowned by his own political party, and increasingly given to polarizing and apparently unconstitutional measures (whether for worse or, as I happen to think, for better); Honduran society is manifestly divided, with a CID-Gallup poll showing, not implausibly, 46% opposed to the coup versus 41% in favor.

There has been a substantial amount of debate among commentators about whether the Honduran Supreme Court and Congress have the authority that they have claimed under the Honduran Constitution (raggedly translated to English here) to provide an imprimatur for the Honduran military’s action against Zelaya.  While it would seem strange for outsiders to second-guess even a counterintuitive Supreme Court constitutional interpretation (Bush v. Gore cannot but come to mind), let alone a unanimous one, it is certainly not implausible here to regard the court as both a partisan political player and a malefactor.  (Larry Birns, director of the Washington-based Council on Hemispheric Affairs, has characterized the Honduran Supreme Court as “one of the most corrupt institutions in Latin America.”)

But the real question, from the standpoint of international law, is whether this controversy represents, at some level, a “matter essentially within the domestic jurisdiction” under Article 2(7) of the U.N. Charter and related norms of non-intervention in internal affairs.  Indeed, it is hardly an exaggeration to say that if internal actors do not retain the last word on such a matter, the whole idea of a “matter essentially within the domestic jurisdiction” is now a nullity (and, many would say, a good riddance).

Herein lies a subtle, but crucial, distinction:  States may undertake international legal obligations in respect of any subject matter whatever, but doing so does not, in itself, render breaching acts legally null and void.  To be sure, contrary domestic law is not a defense to a breach of international legal obligation, but it does not automatically follow that the international order can ignore all legal facts that the breaching act purports to establish, especially as they pertain to public order within the state’s territory.  (For example, foreign states generally lack jurisdiction to enforce even a binding and applicable international legal norm within the territory of a fellow sovereign state, even where the latter’s cooperation is unlawfully withheld, and state officials acting within national territory are ordinarily immune ratione materiae for their participation in acts of state that breach international obligations.)  International law contains no analogue to the U.S. Constitution’s Supremacy Clause; the relationship of Honduras to the international or the regional order cannot be analogized to that of Michigan to the U.S. federal government.

The basis for action against the Honduran de facto regime is the 2001 Inter-American Democratic Charter, a declaration that, as Cassel has pointed out, can be regarded under Article 31(3)(a) of the Vienna Convention on the Law of Treaties as an authoritative interpretation of the Charter of the Organization of American States (OAS).  The issue, though, is not the Charter’s authoritativeness, but its legal implications.

The only legal consequence that the IADC expressly specifies for “an unconstitutional alteration of the constitutional regime” is the suspension of a state’s right to participate in the Organization.  International law certainly poses no impediment to measures of this nature; international organizations have every right to establish themselves as exclusive clubs of similarly-governed countries. What is unclear from the IADC is what further measures might be contemplated as consistent with the OAS Charter and with general international law.  Interestingly, when the de facto regime sought to pre-empt suspension by withdrawing Honduras from the Organization, OAS Assistant Secretary General Albert R. Ramdin responded that “The current regime is not recognized as the legitimate government of Honduras.  And so only a legitimate government can withdraw from the organization.”  That approach hints at (though it is by no means conclusive of) a larger set of legal consequences.

It is one thing for the OAS to suspend “Honduras”; it is quite another thing for states and international organizations to acknowledge a government-in-exile as the authentic representative of Honduran sovereignty.  The OAS Charter, even read in light of the IADC and related declarations, contains no language that would seem to authorize this, and much language that represents a conflicting norm.

Brazil’s foreign minister, Celso Amorim, has been quoted as asking:. “If the OAS doesn’t work to give guarantees to a democratically elected government, in the case of a coup like this, then what is the OAS for?”  But such guarantees are, in many ways, quite foreign to the OAS scheme.  Under Article 3 of the OAS Charter, “International order consists essentially of respect for the personality, sovereignty, and independence of States, and the faithful fulfillment of obligations derived from treaties and other sources of international law”; “Every State has the right to choose, without external interference, its political, economic, and social system and to organize itself in the way best suited to it, and has the duty to abstain from intervening in the affairs of another State.” These points are reiterated elsewhere in the Charter to the point of redundancy.  Although the Charter anticipates “measures adopted for the maintenance of peace and security in accordance with existing treaties,” (art. 23), the non-intervention norm otherwise prevails in the face of “any reason whatever,” and applies “not only [to] armed force but also [to] any other form of interference or attempted threat against the personality of the State or against its political, economic, and cultural elements” (art. 19).  Of course, one can read such instruments creatively to identify the authentic will of the state with the juridically valid outcome of the state’s constitutional processes, and thus to regard external measures in support of that outcome as something other than “intervention” or “interference,” but that is hardly an intuitive reading, especially in light of Latin American history.

Constitutions do not constitute states, but rather presuppose them; what constitutions “constitute” are the governmental apparatuses that act in the name of states.  When, as frequently occurs, a state’s constitutional order is swept away, the state’s international legal personality remains unaltered, as do its existing international obligations.  The international legal order as we have known it – as reflected in the language of such documents as the OAS Charter, the 1970 UN Friendly Relations Declaration, and the ICJ Nicaragua decision – is properly understood, not as a legal order of legal orders, but as a legal order of sovereign political communities that each bear an “inalienable” pouvoir constituant.  That pouvoir constituant logically includes an authority (insofar as its exercise is deemed authentically attributable to its bearer) to overthrow any existing domestic order by any means.

Of course, there is nothing to prevent international law from developing in a different direction, and that development may indeed be at hand.  In a follow-up post, I will suggest that such a development is less appealing than at first it may appear – least of all, paradoxically, from the standpoint of the very forces most vociferously demanding international action to return President Zelaya to office.