There was a time when international law played little role in the way in which a sovereign nation-state ordered its constitutional system, and then applied that ordering internally. That was especially the case with respect to the application of the process rules of a nation’s constitution, and the division of authority between the two principal elected branches of state—the executive and legislature—and the judicial power to oversee that division. To some extent that idea is still true—the United States Congress would have found it incomprehensible had its proceedings against President Clinton in 199 been interpreted as in violation of either some supra-constitutional norm or a set of international norms and treaties with paramount authority over the matter.
But times have changed. I have argued that since the end of the Second World War, a new transnational legal order has been seeking both authority and legitimacy with respect to control over the normative framework and limitations within which nation-states may elaborate their national constitutional systems. See (Backer 2009). Modern transnational constitutionalism posits the development of a set of norms and expectations about process and substantive rules applicable to all constitutional orders, or at least those that are to be understood as legitimate. These are based on consensus among the community of nations as articulated either in a variety of international instruments or in some form or another of customary international law in general and jus cogens in particular. (Backer 2008).
Constitutionalism has, for the last century or so, sought to provide a basis in theory for legitimating certain forms of state organization within territorially based political communities. (Backer, 2009). Constitutionalism serves as a basis for classifying the form of state systems of governance. (Henkin 1993). Its object is twofold—to develop an ideal of governance forms and to judge the legitimacy of a constitutional system against this ideal. (Okoth-Ogendo 1993) Constitutionalism is grounded on the fundamental postulate of rule of law—that states ought to be organized to avoid tyranny or despotism by grounding state action in law and by limiting the reach of such lawful state action on the basis of values reflecting the values of the political collective. (Coomaraswamy 2993).) Beyond this institutionalizing and legitimating objective, constitutionalism can be grounded on any number of legitimating value systems—each competing with the others for the allegiance of the greatest number of states. (Backer 2008). When the source of values is the transcendent genius of the nation itself, it is understood as nationalist constitutionalism. (Rubenfeld 2004). When the values are sourced in the consensus of the community of nations, understood as common constitutional traditions of the community of nations or as the expression of international consensus in international conventional law or customary international law (Herschl 2004), it is understood as transnational constitutionalism. (Backer 2008).
By the time of his removal, it was clear that the legitimately elected legislative branch, and the judicial branch, had determined that there were serious breaches of the Honduran Constitution by Mr. Zelaya that rendered him unfit for office. It is also true that the methods leading to his removal and exile were, at best, constitutionally imperfect. (Backer July 4, 2009). But reaction to the removal displayed no measure of restraint or consideration of the internal issues specific to Honduras and its internal structuring. And little thought was given to idea that this was an internal matter to be left to Honduras. Rather, the external reaction was almost immediate, uniformly negative, and specifically bent to projecting foreign power into Honduras. Many states were quick to condemn the actions as a military coup, and virtually all of Latin America, led by Venezuela and Cuba, among the strongest of Mr. Zelaya’s friends in Latin America and members, with Honduras in ALBA, the socialist regional trade association, also condemned the “coup”. As reported by the Chinese press, “ALBA’s position and characterization of the events in Honduras quickly became the standard version of reality. “The regional bloc of the Bolivarian Alternative for the Americas (ALBA) condemned the coup in Honduras that ousted President Manuel Zelaya Sunday. A statement issued after a special meeting of foreign ministers urged the reinstatement of Zelaya, and said the ALBA member countries will not recognize any government or person rising from the coup.” (Backer July 21, 2009; citing ALBA Condemns Honduran Coup, June 29, 2009). Condemnations by the U.N. (U.N. July 1, 2009), the Organization of American States (OAS July 1, 2009), and the European Union (EU Suspends $90 Million Aid to Honduras, Jul 13, 2009)) quickly followed. Thus, the mechanics of a transnational constitutionalism—something that my students have sometimes suggested does not exist, were quite in evidence in the efforts of the community of nations to require Honduras to conform to their aggregate ideas of how their internal situation ought to be resolved in this dispute among the three branches of its government.
Professor Cassel starts with a succinct summary of the events leading to the removal and expulsion of then President Zelaya. (Cassel 2009, at 1-2). He notes the messiness of the situation at the time of the events—Mr. Zelaya’s insistence on thwarting the will of the Honduran Supreme Court in a way that might well have resulted in his lawful impeachment and removal under American Constitutional law principles under similar circumstances. He also notes the conformity of the succession to Honduran constitutional law. Likewise he notes that irrespective of the legitimacy of the removal, that the expulsion contravened the black letter fo the Honduran Constitution. (Id., at note 1). He also notes the unorthodox and ex post ham handedness of the removal itself. But then he makes a leap of faith:
“In short, after being forced out of the country in breach of the Constitution, President Zelaya was formally deposed by a Congress with no clear constitutional power to remove him in the circumstances at hand, let alone summarily, without so much as a hint of due process of law. This was indeed a coup d’état (even if the relative degrees of responsibility of the civilian and military authorities for the coup remain unclear).”
Why a leap?: because the conclusions and judgments with which those statements are laced were not the product of deliberations by the Honduran Supreme Court, and thus definite within the framework of Honduran Constitutionalism. Instead, at best, it represents the extra judicial determination of an outsider made without the benefit of the protections and framework for resolving such disputes within the Honduran Constitutional system. This is judgment without authority or legitimacy (in law). This is not to fault Professor Cassel; he engages in the sort of judgment that is at the core of the academic project. But it interposes a person (or in the case of the United Nations or the OAS) whose pronouncements, and actions thereon, are treated as if they constituted the definitive judgment of the duly constituted organs of the Honduran state acting within the legitimate scope of their authority. It is on this judgment that the international law arguments, thereafter elaborated, are based. But such arguments, in the absence of authoritative action by the duly constituted authority charged with that task, renders that argument less legitimate as a matter of law, and ironically, might serve to subvert the internal democratic order in Honduras even as it seeks to vindicate it. So I start where I will end—no action grounded in purported attempts to preserve the democratic order in Honduras can be legitimate unless based on judgments by the duly constituted organs of that order with respect to the operation of Honduran constitutionalism. The great problem of transnational constitutionalism in Honduras is the problem of avoiding international enforcement of the constitution that that actors think Honduras ought to have rather than the one that the sovereign people of Honduras have adopted. To act otherwise, perversely enough, is to advance the constitutional project that was the catalyst to Mr. Zelaya’s ouster in the first place.
Starting from the judgment that the actions of the Honduran legislature and court amounted to a coup d’etat, Professor Cassel constructs an argument for the legitimate intervention of the international community to determine the way in which the internal constitutional dispute in Honduras ought to be resolved. (Cassel 2009, 3-5). The argument is both elegant and instructive. He starts with a set of basic premises that are grounded in the core premises of transnational constitutionalism as applied in the context of Honduras: The Interamerican Democratic Charter, though neither law nor transposed into the domestic legal order of Honduras by other means, is nonetheless an authoritative interpretation of the OAS Charter and therefore binding on all of its members (including presumably the United States). Combining the two one arrives at what Professor Cassel suggests is an appropriate standard for reviewing the legitimacy of the actions of the Honduran legislative and judicial branches—though Article 9 of the OAS Charter permits suspension if a democratically constituted government is overthrown by force, the Democratic Charter extends that power to what it terms “unconstitutional alteration of the constitutional regime.” (Id., at 3). This presents a dilemma that Professor Cassel nicely captures:
This poses a challenge for international lawyers. 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. (Id.).
But rather than suggest that, in the face of this constraint, the appropriate action might have been to seek an authoritative interpretation of the Honduran Constitution, Professor Cassel suggests that the internal constitutional standards of the Member States count for little in this matter. All states, including the United States it would seem, are instead subject to a higher legal standard through which their compliance with their own constitutional framework is legitimate and authoritative (at least with respect to the application of OAS Charter art. 9: rather than domestic standards, international standards apply to a determination of national compliance with their own constitutional norms. “this requires international lawyers – and other OAS member states – to consider whether domestic authorities have breached their own constitution, in order to evaluate whether they meet their international commitments.”
We now have the answer to the initial question of the constitutionality of the actions by the Honduran courts and legislature—that is an issue that may be determined by others, outside of Honduras, on the basis of international standards now written into the fabric of Honduran constitutionalism and imposed on them by virtue of their membership in the OAS community of nations. In effect, Professor Cassel argues, once outsiders determine that they do not trust a duly constituted branch of a Member States’ government, it is free, in intervening, to make its own determination of the proper answer to domestic constitutional questions, “lest de facto regimes be given carte blanche to fabricate their constitutionality.” (Id., at 3). But here, the regime is not “de facto” in the sense that the government has been overthrown and replaced by another. Instead, the President has been removed and the legislative and judicial branches continue to function uninterrupted. To suggest the profound effects of this removal in this context is to void a judgment for imposition of improper remedy. That, also, might be understood as both undemocratic and illegitimate.
On this basis, Professor Cassel makes out his case for the constitutional illegitimacy of Mr. Zelaya’s removal and exile. (Id., at 3-5). He makes excellent points, and strong arguments about the constitutional infirmity of the actions of the Honduran courts and legislature. But those arguments are authoritative only because of the initial presumption that these determinations may no longer be put to the highest interpretive authority of the Honduran Constitution. More interestingly, though, is the use of international standards to reach into the Honduran Constitution itself to void, as a matter of international law, a black letter provision of the constitution (at least as to one of its possible legitimate interpretations). For Mr. Cassel, Art. 239 of the Honduran Constitution is problematic at best (id., at 4-5) or at worst, “is inconsistent with Honduras’ treaty obligations, violative of due process of law, and anti-democratic.” (Id., at 5). Again, Professor Cassel suggests one of the interesting consequences of transnational constitutionalism—the ceding of a power over interpretation from the state to the community of states, which can serve to limit the possible permissible interpretations of a national constitution by its Supreme Court. As an aside, and somewhat perversely, for Professor Cassel’s arguments to work, one would have to believe Mr. Zelaya, before his ouster, that only the President was the legitimate nexus of constitutional authority within Honduras. But that, itself, suggests an unconstitutional alteration of the Honduran State that might be subject to OAS sanction.
But the government of a state is not incarnated in the body of its president. To suggest that is to move us closer to notions of monarchical organization that many states have labored hard over the last several centuries to abandon. Mr. Zelaya was one, but only one part of a democratically elected government in which power was divided among the legislature, the executive and the judiciary. Contests among those three branches, and their outcomes, however messy, do not raise the same issues as those raised by the projection of power from within—in the form of military or other outside actors, to usurp power for themselves—or from without. Honduras has not changed its form of government, nor are outsiders now in control of the apparatus of state. That the current government was likely formed in a manner that is constitutionally illegitimate raises internal questions of constitutional law. The OAS might have better spent its time seeking agreement by the Honduran state to put those questions to its Supreme Court. The conduct of that Court and its deliberations might well have served as an indication of the continued adherence of the Honduran State to the rule of law and its own democratic values. But that approach was never in the cards. And that is a shame.
Still, on this basis, Professor Cassel would put the threshold legal questions to rest:
the purported removal and replacement of President Zelaya were, in the words of the Inter-American Democratic Charter, an “unconstitutional interruption of the democratic order.” Whatever one’s views of the president and his prior conduct, the June 28 coup was an assault on constitutional order. If allowed to stand, it will become a menacing precedent for democracy, not only in Honduras, but throughout the hemisphere. (Id., at 5).
Professor Cassel reminds us that this is no longer the case, at least for small states. Transnational constitutionalism is now becoming better established. For the good, it represents an orderly means through which a great single normative framework may be developed and applied to all states seeking membership in the community of legitimately constituted democratic states. It brings into play the great ideals of the American government which grounded its approach to the constitutions that emerged in Germany and Japan after the Second World War. But the implications of a more robust transnational constitutional system, nicely expressed by Professor Cassel, might be more than Americans have bargained for, especially if applied to them. On the other hand, whatever sort of transnational constitutionalism Americans put the weight of their authority behind, ought to be one that Americans are willing to apply to themselves. It is unlikely that this will be the case. (Medellin v. Texas 2008).
Whatever the result, it appears that “In the end, there is very little that may be Honduran about the ultimate result of those Revolutions. That question will be decoded by forces outside of the state and serving the geo-political, ideological and strategic interests of others. Post modern sensitivity developing nations has produced a variety of post colonialisms form the left and the right and from the developing and developed centers of power.” (Backer July 4, 2009). Even for defenders of transnational constitutionalism, and there are many reasons for defending the construction of a more robust system of transnational constitutionalism, it might be wise to cultivate not only a consensus about the outer boundaries of legitimate constitutionalism but also a greater sensitivity to allowing the people of a state to make those determinations for themselves in the first instance.
ALBA condemns Honduran coup, Zelaya participates meeting, People’s Daily Online, June 29, 2009.
----------, From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems, Penn State Law Review, Vol. 113(3):671-732, (2009). Available at SSRN: http://ssrn.com/abstract=1272264.
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Organization of American States, General Assembly, AG/RES. 1 (XXXVII-E/09) (July 1, 2009), 37th Sess., OEA/Ser.P/XXXVII-E/09 (2009), ¶1.
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