One of the major concerns of preventive diplomacy, especially as exercised by the United Nations, is the question of whether, in situations where the constitutional order of a state is violated, there is any link with the maintenance of peace and international security justifying the attention or intervention of the Security Council. Experience has shown that this issue has often influenced the direction and even the results of the processes towards preventing or ending crises. The question almost always arises with more or less urgency according to the distinctive character of the situations involving violations of the provisions of a state constitution, for example, the overthrow of a democratically elected government.
Thus, the Security Council was not originally conceived as an organ to ensure the respect for legality in general, but solely as a body with the responsibility
for maintaining world peace.
In this context - the absence of specific guidance from the Charter - when
there is an agreement between its members, the Council has a discretionary power to decide
whether this situation represents a
threat to peace in the world or not.
The current trend towards a widening of the concept of collective security has also
led the members of the Council, in a joint statement on January 31, 1992,
which was adopted at the level of Heads of State and Government, to define the concept of “threat”
in a preventive context,
recognizing that: “International peace
and security are not the result of the absence of war and military conflicts
alone. Other, non-military threats originate in the instability prevailing in
the economic, social, humanitarian and ecological fields.” In other words, there is a variety of threats
with the potential to endanger “international peace and
security,” among them, those pertaining to governments
with weak or contested authority.
Therefore, since the definition of what constitutes a “threat to the
peace” in
Article 39 does not necessarily hinge
on the existence of a violation of
international law – the threat could be a natural disaster, for
example – the measures adopted by the Security Council
under Chapter VII would not necessarily
have to be taken in reaction to wrongful
acts. For
example, when the Council warns about the dangers to international peace
and security resulting from inaction regarding HIV/AIDS, climate change, or
the proliferation of weapons, the danger to peace is not related, in any direct fashion, to a violation
of international law. In the same way,
it appears that one cannot find a direct relationship between
a violation of a state constitution, on the one hand, and a threat to
international peace and security,
on the other. This is especially true
because, according to the famous formula developed by the Permanent Court of
International Justice, also formulated in 1991 by the Badinter
Commission with regard to the
Yugoslav constitution, a state’s constitutional provisions or legislative enactments are
“merely facts” to international law, and that any intervening in a state’s constitutional functioning or controversies
could be considered by the latter as an intolerable interference in its domestic affairs.
However, if a violation of the internal law of a country should not be automatically considered
by the Security Council as a threat against peace, there are situations in
which it could. Indeed, the Council
has exclusive competence to decide whether a situation, related or not to a
violation of the internal law of a state, is indeed a threat against
international peace and security. It is therefore interesting to study the fate
reserved by the Council to the situations of violation of the constitutional
order.
In reality, for the most part, the Security Council has rarely concerned itself about violations of constitutional order. Indeed, the Council repeatedly declined to intervene when such violations were deemed not serious enough to threaten international peace (I). A recent trend seems to be emerging, however, both at the world and regional levels (especially in Africa), in which compliance with state constitutions and the maintenance of international peace are perceived as being more closely related; this is accompanied by a growing understanding that state constitutions should be the guarantors of respect for human rights, including the right to live in peace (II).
In reality, for the most part, the Security Council has rarely concerned itself about violations of constitutional order. Indeed, the Council repeatedly declined to intervene when such violations were deemed not serious enough to threaten international peace (I). A recent trend seems to be emerging, however, both at the world and regional levels (especially in Africa), in which compliance with state constitutions and the maintenance of international peace are perceived as being more closely related; this is accompanied by a growing understanding that state constitutions should be the guarantors of respect for human rights, including the right to live in peace (II).
Catherine MAIA, Anatole AYISSI, « Peace
Through Constitution: The Importance
of Constitutional Order for International Peace and Security » (extract)
of Constitutional Order for International Peace and Security » (extract)
TABLE OF CONTENTS / TABLE DES MATIERES
SPECIAL THEME: CONFERENCE ON INTERNATIONAL LAW IN AFRICA: Maputo 5-6 October 2012 / THEME SPÉCIAL: CONFERENCE SUR LE DROIT INTERNATIONAL EN AFRIQUE: Maputo 5-6 octobre 2012
Maputo Conference: Revitalizing the African Association of International Law (AAIL) - Abdulqawi A. Yusuf & Roland Adjovi
Les droits de l’homme dans la médiation du Secrétaire Général des Nations Unies dans le conflit de Bakassi entre le Cameroun et le Nigeria (2002-2006) - Mutoy Mubiala
The African Peer-Review Mechanism at Ten: From Lofty Goals to Practical Implementation - Adejoké Babington-Ashaye
A Role for the African Court of Justice and Human Rights in Developing a Binding Regional Framework for Refugee Protection - Christian PangilinanGENERAL ARTICLES / ARTICLES GENERAUX
The Changing Pattern and Future of Foreign Investment Law and Policy in Ghana: The Role of International Investment Treaties - Dominic N. Dagbanja
Adjudicating Transnational Corporate Crimes in Foreign Courts: Imperialism or Assertion of Functional Jurisdiction? - Chilenye Nwapi
Peace Through Constitution: The Importance of Constitutional Order for International Peace and Security - Catherine Maia & Anatole Ayissi
The Role of the Chairperson in Multilateral Treaty-Making Negotiations: The UNESCO Convention on Cultural Diversity - Abdulqawi A. Yusuf & Yuki DaijoNOTES AND COMMENTS / NOTES ET COMMENTAIRES
The Emergence of Judicial Insitutions for Inter-State Dispute Settlement in Africa: A Brief Survey - Abdulqawi A. Yusuf
Les atteintes à l’ autonomie juridique de l’enfant africain dans la guerre - Sayeman Bula-Bula
The Use of Unmanned Aerial Vehicles and United Nations Peacekeeping: The Case of MONUSCO in the Democratic Republic of the Congo - Kasaija Phillip Apuuli
Prosecuting Hissène Habré: A Historical Background - Bridget Rhinehart
Une saga judiciaire autour d’un (ex-) chef d’Etat africain, Hissène Habré - Roland Adjovi
Trois propositions de réforme du système de justice pénale internationale - Jérôme de HemptinneDOCUMENTS
Accord entre le Gouvernement de la République du Sénégal et l’Union africaine sur la création de chambres africaines extraordinaires au sein des juridictions sénégalaises
Statut des chambres africaines extraordinaires au sein des juridictions sénégalaises pour la poursuite des crimes internationaux commis au Tchad durant la période du 7 juin 1982 au 1er décembre 1990
Association Africaine de Droit International, Rapport de la Réunion de l’Assemblée Générale du 5 octobre 2012 à Maputo (Mozambique)
Communiqué final de l’Assemblée Générale de l’Association Africaine de Droit International, Réunion du 5 octobre 2012 à Maputo (Mozambique)
Agreement between the Government of the Republic of Sénégal and the African Union on the Establishment of the Extraordinary African Chambers within the Courts of Sénégal
Statute of the Extraordinary African Chambers within the Courts of Sénégal created to prosecute international crimes committed in Chad between 7 June 1982 and 1 December 1990
Statute of the African Association of International Law
Press Release, African Association of International Law, 6 October 2012
African Association of International Law, Registration Form
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