Democratic Accountability and the Use of Force in International Law

By Charlotte Ku; Harold K. Jacobson | Go to book overview

2 The interface of national constitutional
systems with international law and
institutions on using military forces:
changing trends in executive and
legislative powers

Lori Fisler Damrosch

The perplexities of the twenty-first century over national decision-making in support of international security are an outgrowth of centuries-long trends concerning subordination of military power to constitutional control. Civilian control over the military has been inextricably connected with the strengthening of domestic constitutionalism and safeguards for citizens' liberties in many different democracies.

Along with the establishment of constitutional structures for regulating national military power, national constitutions have contributed to the evolution of contemporary international law prohibiting the use or threat of force in international relations. Milestones along this path begin with the French Constitution of 17911–the first national constitution to renounce wars of conquest–and include the renunciation of war in the post-Second World War constitutions of Germany and Japan and other countries.2 Such constitutional provisions have helped consolidate the norm of international law against the use of force embodied in Article 2(4) of the UNCharter: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.” National constitutional law in

1 “Constitution du 3 septembre 1791, Titre VI” in Jacques Godechot, Les Constitutions de
la France depuis 1789 (Paris, Garnier-Flammarion, 1970), p. 65 (“La Nation française
renonce a' entreprendre aucune guerre dans la vue de faire des conquêtes, et n'emploiera
jamais ses forces contre la liberté d'aucun peuple”).

2 On Germany and Japan, see country chapters. See also Italian Constitution, Article 11,
in A. Blaustein and G. Flanz (eds.), Constitutions of the Countries of the World (Dobbs
Ferry, NY, Oceana Publishers, 1971) (“Italy repudiates [ripudia] war as an instrument of
aggression against the liberties of other peoples and as a means for settling international
controversies …”).

-39-

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