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Pressure on Honduras May Lead to Zelaya’s Return

The Obama administration has yet to reveal its legal rationale for not supporting the Honduran Constitution.

by
Dan Miller

Bio

October 20, 2009 - 12:13 am

The reports coming out of Honduras have been confusing and conflicting. There has been little media coverage in the United States, even though the U.S. Government has injected itself head over heels into the continuing crisis, and even though what happens in Honduras may well presage what happens elsewhere. The way the situation is developing, it seems very likely that the consequences will be adverse. There may be some small glimmers of hope, but the path is still very rocky.

It was reported earlier by Hondudiario, a newspaper in Honduras, that the Department of Political Affairs of the UN issued a report concluding the the ouster of former President Zelaya was consistent with the Honduran Constitution. The U.S. Library of Congress  produced an earlier study arriving at the same conclusion. A translation of the Hondudiario article is at la Gringa’s blog.

There was some question about the provenance of the Hondudiario article, and on October 14, the secretary general of the UN claimed that the report was only the view of one of many consultants from whom the UN hears frequently. It was also stated that, in the view of the UN, that the ouster of Zelaya was unlawful remains unchanged:

[T]he UN position on the legality of Mr. Zelaya’s removal was clearly articulated by General Assembly Resolution 63/301 adopted on 1 July, which “condemns the coup d’état in the Republic of Honduras that has interrupted the democratic and constitutional order and the legitimate exercise of power in Honduras.

One might wonder how much legal analysis was involved in the UN determination, made three days after the “coup.” Wondering is about all there is to do, since no such analysis has been made public even yet, more than three months after the “coup.”

As of October 17, the “negotiations” appeared to have little chance of success, although the parties are evidently continuing to talk. According to Zelaya, “the dialogue is in suspense … until the other side adopts a reasonable stance.”

As the negotiations recessed on October 17 several points of contention remained. President Micheletti was willing to have the question of Zelaya’s reinstatement, a constitutional issue, answered by the Supreme Court, which is charged with interpretation of the Honduran Constitution. Although rejected by Zelaya as “absurd,” that appears, to me at least, to be a “reasonable stance.”

Zelaya insisted that the question be answered by the Congress, apparently as a political matter. Although the Congress voted for Zelaya’s ouster 123 to 5, the continuing pressures on the country may cause some members of the Congress to have second thoughts. Zelaya has set several deadlines for the “negotiations” to bear fruit, the most recent deadline being Monday, October 19.

President Micheletti and his government have been negotiating under tremendous external pressure, which has hardened the position of Zelaya and his Chavista supporters. The United States and other Zelaya backers have already clamped down hard on Honduras with economic and diplomatic sanctions, and on October 17 Zelaya demanded more of the same from the OAS. He stated, “they can perfectly well establish tougher trade and economic measures, which the United States would comply with immediately.”

The six ALBA nations — Venezuela, Bolivia, Cuba, Ecuador, Nicaragua, Honduras, Dominica, Saint Vincent, and Antigua and Barbuda –  announced plans “to apply economic and commercial sanctions against the regime that came to power as a result of a coup.” They had already been applying such sanctions, and I don’t know whether additional sanctions are contemplated, what they might be or whether the announcement was merely intended as a reaffirmation of solidarity with Zelaya. Honduras has already been pretty much beaten down and might even be willing to accept the conditional reinstatement of Zelaya to have the sanctions lifted. Whether Zelaya would honor whatever commitments he may make or may have made is another question. An answer is presented by la Gringa here, and it is a sad one. Quoting briefly from the article:

Zelaya’s supporters continually threaten to disrupt the election campaign, not allow distribution of election materials, and block voting if their leader is not reinstated in the next few days.

Telesur reports that Zelaya has said that neither he nor the resistencia are going to recognize the November 29 elections. In the same article he states that he is a democrat and he supports elections.

An October 17 article by James A. Baker III, former U.S. Secretary of State (1989 – 1992) published in the Washington Post argued that the Honduran interpretation of the Honduran Constitution should prevail, that the November elections should be monitored, that assistance should be provided in ensuring that they are fair and in accordance with Honduran law, and that if they meet those conditions they should be recognized internationally. This position may be gaining some traction in Washington; how much is unclear. If the elections are fair and in accordance with Honduran law but are nevertheless not recognized, the crisis will continue indefinitely, as seems obvious.

It also seems obvious that if Zelaya remains in Honduras, and his supporters continue to be encouraged by outsiders who despise the Honduran Constitution and Honduran law, they are likely to become a sad farce. Pro-Zelaya demonstrators, already amply encouraged, can easily produce such a result despite the best and most honorable intentions of the Honduran Government.

The method by which constitutional interpretations and revisions are made is, and should be, an internal matter. Whether President Obama, President Chávez, or President Arias of Costa Rica like the Honduran Constitution or think it “the worst in the world” and in need of revision to suit their fancies, should be unimportant.

Unfortunately, they have the power to enforce their will — even though opposition to Zelaya is overwhelming in Honduras. According to an article in the Miami Herald, Zelaya’s backers “have yet to mobilize in the kind of numbers required to force change.”

Honduras is also becoming a left-right issue in the United States.

The crisis has become a challenge for the administration of President Barack Obama, who has faced vocal criticism from some Republicans in Congress for supporting Zelaya, a leader distrusted by conservatives because of his friendship with Venezuelan President Hugo Chávez.

The sole predicate for the Obama administration position on the unconstitutionality and illegality of the “coup” in Honduras appears to be set forth in a study by Harold Koh, chief legal counsel to the State Department. The administration has consistently refused to make a copy of Mr. Koh’s study available for analysis by others on the pretext that it is a “privileged communication.” After more than three months, it doesn’t seem too much to expect that the Obama administration might have come up with some public, and arguably cogent explanation for its position on Honduras. It has not tried or, if it has tried, has been unable to articulate one.

Here is an April 18, 2009 article from Newsweek urging the confirmation of Mr. Koh as chief legal counsel to the State Department. In closing, it opines:

[C]onservatives have a point that Koh and the other “transnationalists” are using their legal theories to advance a political agenda. The international legal norms they wish to inject into American law by and large reflect the values of Social Democratic Europe and liberal American academics. Koh is not suggesting, for instance, that American judges adapt Islamic law that discriminates against women. Koh’s writings — especially when exaggerated — will add to charges from the right that Obama is a closet socialist. The president may have to answer whether he agrees with Koh’s more provocative views.

Perhaps release of Mr. Koh’s study declaiming the unconstitutionality and illegality of Zelaya’s ouster would throw some light on the administration’s position, not only as to Honduras but as to other issues as well. Israel is another place where it is becoming clear that far from a “man of steel,” President Obama is a man of rubber. Without access to the Koh memo, one can only speculate about what “international legal norms,” as distinguished from the Constitution and laws of Honduras and other countries, may have illuminated his — and the Obama administration’s — thinking.

Such insights are not permitted for mere congresscritters or members of the public. Who knows what light they might throw on other Obama appointees? Or on the Obama administration itself? Aside from voting for President Obama, the people of the United States have provided no justification for being “mushroomed” — kept in the dark and fed a steady diet of manure.

Dan Miller graduated from Yale University in 1963 and from the University of Virginia School of Law in 1966. He retired from the practice of law in Washington, D.C., in 1996 and has lived in a rural area in Panama since 2002.
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