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International Role in State-Making in Ukraine: The Promise of a Two-Stage Constituent Process

  • Andrew Arato

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The conflict in the Ukraine—barely placated by a fragile truce that temporarily froze its territorial fault lines—remains one of the gravest threats to both regional and international peace since the end of the Cold War. The present de facto territorial arrangements in Ukraine remain highly unstable—as well as entirely unacceptable—to at least one of the parties to the conflict. With the fate of the second Minsk Agreement in question, neither the parties involved in the conflict nor the powers that support them have been able to propose mutually-acceptable, comprehensive solutions that would significantly diminish the danger of a renewed violent confrontation. In such a situation, the wider international community could play a helpful role in achieving a lasting political settlement.

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1 Krisch, Nico, Pouvoir Constituant and Pouvoir Irritant in the Post-National Order, Soc. Sci. Res. Network, http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2431266_code812324.pdf?abstractid=2430128&mirid=1. For Krisch, in an post-national world, constituent power “operates merely as an ‘irritant’ of an order which, in its normal operation, leaves little room for popular sovereignty, or even political agency.” Id. at 2. However, the constituent power that acts “as an irritant may still be an important role. It may help to disturb the institutionalization of the world along merely technocratic, power-driven lines, and it may also help to keep the idea of agency present in the postnational space.” Id. at 19. In going beyond understanding external powers as (co-)constituent, this article goes beyond their “irritating” role, this article seeks to capture one important way in which external actors can, and generally should, influence domestic constitutional developments. But it does not capture either the variety of factual forms, nor the possible justification of forms of intervention that legitimately rely on power, as well as influence.

2 In this article, I consider the external as international, though legal and legitimate only when there is international law authorization, or at least principle, supporting it, and when the intervening actor has been suitably, generally pluralistically constituted by a legitimate international authority. On this, see, infra.

3 Dann, Philip & Al-Ali, Zaid, The Internationalized Pouvoir Constituant—Constitution-Making Under External influence In Iraq, Sudan and East Timor, in 10 Max Planck Yearbook of United Nations Law 423 (2006).

4 See generally Oklopcic, Zoran, The Idea of Early-Conflict Constitution-Making: The Conflict in Ukraine Beyond Territorial Rights and Constitutional Paradoxes, 16 German L.J. 658 (2015). Oklopcic applies the argument to the case of the Ukraine in this issue of GLJ.

5 For an argument in favor of a more engaged role of the international actors in preventing democratic backsliding in Hungary, see Jenne, Erin & Mudde, Cass, Can Outsiders Help?, 23 J. Democracy 147, 153 (2012). For claims that the weakening of the EU conditionality weakened Turkish constitutional reform process, see Cengiz, Firat, The Future of Democratic Reform in Turkey: Constitutional Moment or Constitutional Process ? 49 Gov't & Opposition 682, 697-98 (2014).

6 See Dann & Al-Ali supra note 3, whose analysis features a case between “domestic” and “international” constituent power among their case-studies.

7 Though I go beyond oversimplified invocations of constituent power in the sphere of international involvement in constitution-making, I also disagree with the attempts to abandon this concept for the sake of concerns of liberal legal theory. For that approach, see generally David Dyzenhaus, Constitutionalism in an Old Key: Legality and the Constituent Power, Global Constitutionalism 1, 2 (2012). His argument ultimately rests on the belief that only the constitutional result matters, not the process of making. I disagree with this assessment on both normative and empirical grounds. For another critique of Dyzenhaus’ approach, see also Zoran Oklopcic, Three Arenas of Struggle: A Contextual Approach to the Constituent Power of “The People,” in 2 Global Constitutionalism 200 (2014). See also Andrew Arato, Post Sovereign Constitution Making (forthcoming); Andrew Arato, Adventures in the Constituent Power (forthcoming).

8 The best examples of this ambiguity are in Carl Schmitt, Verfassungslehre (1928). On this problem in Schmitt's work, see the first chapter of my forthcoming Post-Sovereign Constituent Power. Andrew Arato, Post-Sovereign Constituent Power (forthcoming). In Sieyès, the problem never came up, but undoubtedly he thought of the people or the nation as an entity that had the factual ability as well as the normative authority to enact and establish a constitution. Since such an agency has never been found, it is unsurprising that the two dimensions came to be unstuck. Schmitt's ambivalence is based on the derivation of the concept from Sieyès, and his implicit realization that the claim to speak on behalf of the people must be independently justified.

9 Arendt, Hannah, On Violence 44 (1969).

10 Arendt, Hannah, On Revolution 141 (1963).

11 See Weber, Max, Economy and Society 16 (1978); Jürgen Habermas, Hannah Arendt's Communications Concept of Power, 44 Soc. Res. 3 (1977).

12 See generally 2 Bruce Ackerman, We the People: Transformations 11 (1998). Here, Ackerman juxtaposes constituent authority with constituent power, whereas I would like to speak of power and authority. See also Kay, Richard, Constituent Authority, 59 Am. J. Comp. L. 715, 743-55 (2011).

13 See generally, Shoichi, Koseki, The Birth of Japan's Post War Constitution (1997).

14 Vattel, Emer de, The Law of Nations, Or, Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns, in Three Early Essays on the Origin and Nature of Natural Law and on Luxury ch. 1, sec. 1 (2008).

15 Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land, Oct. 18, 1907, art. 43, https://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=3741EAB8E36E9274C125 63CD00516894. This stance was further reaffirmed by the more detailed provisions of the Fourth Geneva convention in 1949. See Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 47, http://webcache.googleusercontent.com/search?q=cache:ILi_x7Z4Rm0J:https://www.icrc.org/applic/ihl/ihl.nsf/xsp/.ibmmodres/domino/OpenAttachment/applic/ihl/ihl.nsf/AE2D398352C5B028C12563CD002D6B5C/FULLTEXT/ATTXSYRB.pdf+&cd=1&hl=en&ct=clnk&gl=us&client=safari (“Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory.”).

16 See generally Arendt, Hannah, Origins of Totalitarianism (1951).

17 See, supra note 13.

18 Thus it is strongly claimed in many situations where an external power did play a significant role, e.g. India. See Kenneth C. Wheare, The Constitutional Structure of the Commonwealth ch. 4 (1960). In India this made sense, since the constituent assembly, though elected under British rule, could no longer be influenced and dissolved by the old colonial power. Id.

19 See Anghie, Antony, Imperialism, Sovereignty and the Making of International Law 280-91 (2004).

20 See generally, Darwin, John, British Decolonization Since 1945: A Pattern or a Puzzle? 12 J. Imperial & Commonwealth History(1984).

21 The text of the Palestine Mandate speaks of full powers of legislation, Art 1., in The Arab-Israeli Reader 31 (Walter Laqueur & Barry Rubin eds., 2008). Given the supposed purpose of the Mandate, the implication had to be only for the period of the mandate itself, that was understood as preparation for full self-government. For an example of such constitution making by the Mandatory Power, see The White Paper of 1939, in The Arab-Isralei Reader 45 (Walter Laqueur & Barry Rubin eds., 2008).

22 For the role of UN in resolving early conflicts over self-determination in the 1950s, see generally Harold S. Johnson, Self-Determination Within the Community of Nations (1967).

23 Id.

24 There the mandate was ended by successive UN decisions, not recognized by the mandatory, namely South Africa. See, supra note 20.

25 See Wiechers, Marinus, Namibia's Long Walk to Freedom, in Framing the State: Case Studies in Constitution Making (Laurel E. Miller & Louis Aucoin eds., 2010). See also S.C. Res. 435, U.N. Doc. S/RES/435 (establishing UNTAG) (Namibia). For other examples see also S.C. Res. 745, U.N. Doc. S/RES/745 (establishing UNTAC) (Cambodia); S.C. Res. 1272, U.N. Doc. S/RES/1272 (establishing UNTAET) (East Timor); S.C. Res. 1378, U.N Doc. S/RES/1378, S.C. Res. 1483, U.N. Doc. S/RES/1483 (the latter establishing UNAMA), S.C. Res. 1483, U.N. Doc. S/RES/1483 (Afghanistan); S.C. Res. 1500, U.N. Doc. S/RES/1500 (the latter establishing UNAMI); S.C. Res. 1511, U.N. Doc. S/RES/1511, S.C. Res. 1546, U.N. Doc. S/RES/1546 (Iraq). The various UN organizations under these monotonous acronyms played different roles, ranging from the active in East Timor (with respect to establishing procedures) to the rather passive in Iraq.

26 See Kelsen, Hans, The Law of the United Nations: a Critical Analysis of its Fundamental Problems 37 (1950).

27 Id.

28 Arato, Julian, Constitutionality and Constitutionalism Beyond the State: Two Perspectives on the Material Constitution of the United Nations, 10 Int'l J. Const. L 627 (2012).

29 See the contrary arguments in Andrew Arato, Constitution Making under Occupation (2009) and Eyal Benvenisti, The International Law of Occupation (1993). Julian Arato argues that it is important to look at the kind of treaty we are presumably derogating from in order to determine how strongly we should resist lex posterior when there is a problem of lex specialis. Treaties like the Hague convention are integral, absolute obligations—very different from merely reciprocal agreements like trade treaties. See generally Arato, Julian, Accounting for Difference in Treaty Interpretation over Time, in Interpretation in Int'l Law (D.C. Peat et al. eds., 2015).

30 As an example, the BIA of 1935 was, at best, only partially instituted in India because of the resistance of the princely states. See Austin, Granville, The Indian Constitution (1966). See generally Go, Julian, Globalizing Constitutionalism: View from the Post-Colony 1945–2000, in Constitutionalism and Political Reconstruction (Samir A. Arjomand ed., 2007).

31 U.N. Charter art. 39.

32 See Arato, supra note 29 and accompanying text.

33 See Schmitt, supra note 8, at 21–22; 6: II: 2–3, 47–49.

34 Feldman, See Noah, What We Owe Iraq: War and the Ethics of Nation Building 66 (2009).

35 See Merkl, Peter, the Origin of the West German Republic (1963). The commanders preferred a constituent assembly and a final constitution; the German actors preferred the reduced status of a Parliamentary council, and a supposedly interim “basic law.”

36 Oklopcic, too, uses the idea of “early” against “late” intervention that has the advantage of applicability to one stage processes, or those where the distinction among stages is less than clear cut. But he seems to be less demanding in terms of the restriction of the power to only certain topics. See generally, Zoran Oklopcic, Introduction: The Crisis in Ukraine Between Law, Power, and Principle, 16 German l.j. 350 (2015); Oklopcic, supra note 4.

36 Here, another aspect of intervention comes into play—recognition. States can intervene in the negative—at least during state creation —by refraining from recognizing the existence of the putative state until certain concopditions are met. This is a legal and normal part of the state formation process.

38 See, for example, the so-called Copenhagen Criteria, Presidency Conclusions, Copenhagen European Council (Jun. 21–22, 1993), http://www.europarl.europa.eu/enlargement/ec/pdf/cop_en.pdf (last visited Jun. 5, 2015). See also Statute of the Council of Europe, May 5, 1949, 1949 O.J. art. 3.

39 See Statute of the Council of Europe, May 5, 1949, 1949 O.J. art. 8.; see also Treaty on European Union, Feb. 7, 1992, 1992 O.J. art. 7.1.

40 Elden, Stuart, Territorial Integrity and the War on Terror, 37 Environment and Planning A 2083, 2084 passim (2005).

41 The federalization of Iraq would have—and indeed has—occurred by devolution as in “holding together” variants, rather than by a contract of pre-existing “states” as in “coming together federations.” For this distinction, see Stepan, Alfred, Arguing Comparative Politics 320 (2001).

42 Choudhry, Sujit, Old Imperial Dilemmas and the New Nation Building: Constitutive Constitutional Politics in Multinational Polities, 37 Conn. L. Rev. 933, 941 (2005).

43 Arato, See, supra note 29.

44 In terms of other criteria argued here, there was also no limitation of the intervention to procedure, beyond the question of rights, and it was mainly unilateral under a very vague enabling SC Resolution (1483).

45 For one such approach, see generally, Amandine Catala, Secession and Annexation: The Case of Crimea, 16 German L.J 581 (2015).

46 See Orentlicher, Diane, International Responses to Separatist Claims: Are Democratic Principles Relevant?, in Secession and Self Determination 19 (Allen Buchanan & Stephen Macedo eds., 2004); Allen Buchanan, The Quebec Secession Issue: Democracy, Minority Rights and the Right to Secede, in Secession and Self Determination 238 (Allen Buchanan & Stephen Macedo eds., 2004). For the exception in this volume, see Horowitz, Donald, A Right to Secede?, in Secession and Self Determination 50 (Allen Buchanan & Stephen Macedo eds., 2004), who provides strong political arguments that implicitly explain and even justify the bias against secession in international law.

47 See Oklopcic, supra note 4.

48 See Reference Re Secession of Quebec, [1998] 2 S.C.R. 217 (Can.).

49 See id. The condition being a clear vote of the province on a clear question. The purpose of clarity was subsequently highly disputed. David Haljan has recently argued that clear majority only triggers the negating process the direction of which remains subject to negotiations themselves. See Haljan, David, Constitutionalising Secession 343 (2014). For a critique of this position, emphasizing that the clear majority must logically the duty of the government to enter into negotiations towards the satisfaction of the demand to secede see Oklopcic, Zoran, The Anxieties of Consent: Theorizing Secession between Constitutionalism and Self-Determination, 22 Int'l J. on Minority & Grp. Rts. 259, 268 (2015).

50 The case of East Timor, according to Dann & Zaid, supra note 3, indicates that such a distinction is possible. Alternative procedures can also have different substantive consequences. In East Timor, the procedures imposed had strongly majoritarian outcomes. See also Aucoin, Louis & Brandt, Michelle, East Timor's Constitutional Passage to Independence, in Framing the State: Case Studies in Constitution Making 265-68 (Laurel E. Miller & Louis Aucain eds., 2010).

51 Influencing electoral rules for the making of the final constitutions seems to be a legitimate area of external role. Indeed the fairest constituent assembly electoral rule is, other things equal, a highly proportional rule such as a single district rule with no thresholds. Under Iraqi conditions of civil war in Sunni areas such a rule was however disastrous. International inputs can be just as mistaken as domestic choices. Arato, supra note 29, at 208–210.

52 Id.

53 The selection of local participants should not rely on the formalistic understanding of domestic constitutional order. As Jennifer Widner argued, “Informal practices [in the process of constitution-making] may help promote a ‘long view’ too.” Jennifer Widner, Constitution Writing in Post-conflict Settings: An Overview, 49 Wm. & Mary L. Rev. 1513, 1518 (2008). For the importance of local political knowledge in endangering political order and stability, see generally Nehal Bhuta, New Modes and Orders: The Difficulties of a Jus Post Bellum of Constitutional Transformation, 60 U. Toronto L. J. 799 (2010).

54 Ginsburg, Tom, Elkins, Zachary & Melton, James, Baghdad, Tokyo, Kabul: Constitution Making in Occupied States, 49 Wm. & Mary L. Rev. 1139, 1161 (2007).

55 Government of India Act, 1935, 26 Geo. 5 & 1 Edw. 8 c. 2 (Eng).

56 As expressed in the (Motilal) Nehru Report (1928), https://sites.google.com/site/cabinetmissionplan/nehru-report-1928-full-text/doc1 (on file with author), proposing the dominion status for India and the Fourteen Points of Jinnah.

57 For a detailed description of the emergence of the Indian constitution, see Austin, supra note 30. For the political dynamic preceding and following the rejection of the Cabinet Mission Plan see Johnson, Robert, Britain's Decolonization of India and Pakistan, in At the End of Military Intervention: Historical, Theoretical and Applied Approaches to transition, Handover and Withdrawal 86, 95–98 (Robert Jackson & Timothy Clack eds., 2015).

58 Arato, supra note 29, at 230.

69 The elective affinity of wide inclusion with constitutionalism has been demonstrated by Tom Ginsburg with his insurance model. See generally, Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (2003).

60 See, supra note 21, at 65, 69, for the majority and minority proposals, and resolution itself.

61 According to the article 47 of the Fourth Geneva Convention (1949), “Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention … by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory”. According to the UN General Assembly Resolution 2625 (XXV) (24 October 1970) (also known as the Declaration on Friendly Relations), “territory of a state shall not be the object of acquisition by another state resulting from the threat or use of force”.

62 General Assembly Adopts Resolution Calling Upon States Not to Recognize Changes in Status of Crimea Region, (2014), http://www.un.org/press/en/2014/ga11493.doc.htm (last visited June 18, 2015).

63 Id.

64 Presidential Decree No. 119/2015 on the Constitutional Commission, http://www.constitutionnet.org/vl/item/presidential-decree-constitutional-commission-ukraine-no-1192015.

65 See Luhansk Regional Council Head: Ukraine Needs Federalization, Decentralization not enough, Kyiv Post, May 17, 2014, http://www.kyivpost.com/content/ukraine/luhansk-regional-cauncil-head-ukraine-needs-federalization-decentralization-not-enough-348254.html; see also Socor, Vladimir, Donetsk, Luhansk Propose Amendments to Ukraine's Constitution, Eurasia Daily Monitor, May 19, 2015, http://www.jamestown.org/programs/edm/single/?tx_ttnews%5Btt_news%5D=43927&cHash=8662cb51504458 29740407118af00284#.VXSrFWRVikp.

66 Sasse, Gwendolin & Hughes, James, Building a federal Ukraine?, Washington Post, Mar. 19, 2014. For an argument in favor of federalism in Ukraine, see Post, Kyiv, http://www.kyivpost.com/opinion/op-ed/ukraine-should-consider-federalism-11141.html. For an argument against federalism, claiming that a confederation would be a superior constitutional form for Ukraine, see Insider, Russian, http://russia-insider.com/en/2015/02/04/3133.

* Dorothy Hart Hirshon Professor of Political and Social Theory, The New School. Email: . I want to thank Zoran Oklopcic for encouraging me to write this article, as well as for his helpful comments on the penultimate draft. I also want to thank Julian Arato for correcting at least some of my mistakes regarding international law. I alone remain responsible for the final product.

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