15 décembre 2014

REVUE : African Yearbook of International Law (vol. 19, 2014)

Catherine MAIA

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.  

It emerges from the wording of the United Nations Charter that there is no automatic connection between the respect for international law and the maintenance of international peace and security; nor does such a link seem to exist a priori with respect to compliance with internal law, including for its most fundamental norms with constitutional value. This is evident from the wording of Article 39 of the UN Charter, which states: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken ... to maintain or restore international peace and security.”

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).

Catherine MAIA, Anatole AYISSI, « Peace Through Constitution: The Importance
of Constitutional Order for International Peace and Security 
» (extract)



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 Pangilinan
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 Daijo
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 Hemptinne
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

image of African Yearbook of International Law Online / Annuaire Africain de droit international Online

Aucun commentaire :

Enregistrer un commentaire