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The Idea of Early-Conflict Constitution-Making: The Conflict in Ukraine Beyond Territorial Rights and Constitutional Paradoxes

Published online by Cambridge University Press:  06 March 2019

Zoran Oklopcic

Abstract

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Using the crisis in Ukraine and the annexation of Crimea as a foil, the aim of this article is three-fold. First, it offers an internal critique of the influential answers that normative theory and international jurisprudence provide to the paradox of constitutionalism. Second, building on critical engagement with these approaches, this article mobilizes constitutional theory to find a constructive response to the crisis in Ukraine that goes beyond the prescriptions offered either by normative theory or international jurisprudence. In doing so, it seeks to sketch a broad constitutional framework not for post but rather for early-conflict constitution-making. The final aim of this article is to contribute to a richer self-understanding of constitutional theory vis-à-vis its disciplinary neighbors.

Type
Research Article
Information
German Law Journal , Volume 16 , Issue 3: Special Issue - The Crisis in Ukraine , July 2015 , pp. 658 - 690
Copyright
Copyright © 2015 by German Law Journal GbR 

References

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There is indeed, to some extent, some circularity at play in the idea of self-determination and peoplehood, as several contributors to the present volume note in the context of international law and of constitutional theory, respectively: Self-determination presupposes the very self or people that is supposed to emerge from it; the constitution constitutes the people that constitutes it. But I am not sure that either logical or chronological priority is what ultimately matters here. Rather, the issue is ultimately a normative one: peoples rightfully exercising political self-determination. If what results from the mutually constituting interaction between self and determination (or between people and constitution) are institutions that track the interests of the people they are supposed to represent, then if there is any circularity, it is a virtuous rather than a vicious one. And the relevant self or people will speak up to break up the circle if it becomes vicious rather than virtuous: i.e., if it runs counter to, rather than serves, the rightful exercise of political self-determination.

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88 Improvement in the aggregate allegiances can also be discerned from some influential approaches to consociational democracy, however. The defense of “liberal consociationalism” in the Iraqi context, offered by John McGarry and Brendan O'Leary, insists on “ensur[ing] that the rights of individuals as well as groups are protected.” John McGarry & Brendan O'Leary, Iraq's Constitution of 2005: Liberal Consociation as Political Prescription, 5 Int'l J. Const. L. 670, 675-76 (2007). But the way in which liberal constitutionalism manifests itself institutionally, on the ground, is through the constitutionalized possibility of the territorial reconfiguration of Iraq's governorates, through referenda called triggered by popular initiative. The net result of such process would be the manifestation of the same ideal—improvement in the aggregate satisfaction of individual constituent attachments over the reconstituted territory—already offered in this article as a more compelling answer to the annexation objection.Google Scholar

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