根据联合国安理会第 2245 号决议组建的叙利亚宪法委员会的法律调整

Ayman Mohamed Afify, Sam Dalla, Hamoud Tannar
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引用次数: 0

摘要

背景:可以推测,制宪是一个体现国家主权和人民意志的民族过程。叙利亚冲突的严重性及其危险促使国际社会进行干预,2015年,安理会发布了第2254号决议来解决冲突。该决议项目4要求开始为叙利亚起草一部新宪法的进程;为此,经冲突各方、政府和反对派同意,并得到以联合国为代表的国际社会的同意,于2019年在日内瓦成立了宪法委员会。本研究探讨了联合国对叙利亚宪法委员会在日内瓦的组建和工作的干预在多大程度上影响了宪法的民族主义和国家主权原则。该研究还讨论了授予该委员会的权力的合法性,无论是在起草叙利亚国家新宪法还是修改现行的2012年宪法,以及它们在考虑宪法原则时是否与国家主权原则相冲突。方法:采用分析方法对根据安理会第2254号决议成立的叙利亚宪法委员会的法律适应性进行研究。联合国对叙利亚宪法委员会的干预所产生的影响以及是否与国家主权原则相冲突,取决于澄清联合国在组建该委员会方面所发挥的作用及其对该委员会施加有约束力决定的能力。要实现这一目标,就需要根据宪法的原则和规则分析宪法委员会的权力。这就需要确定该委员会是否拥有原始组成权力的全部权力,可以不向人民征求意见而为国家制定新宪法,或者它的管辖权是否仅限于起草宪法。通过这种分析方法,我们将知道宪法委员会的组成和授予的管辖权是否与国家主权原则相矛盾,因为国家主权原则假定宪法是一种民族产业。结果和结论:经联合国安理会第2254号决议授权成立的叙利亚宪法委员会既不减损叙利亚的国家主权,也不与宪法民族主义原则相冲突。首先,负责制定宪法的组成当局的组建不是一个法律问题,而是从现实中产生的,叙利亚宪法委员会也是如此,它的存在源于叙利亚的现实冲突,并得到了各党派、政府和反对派的同意。因此,不能说这个委员会的组成是非法的或不符合宪法原则,因为无论是在叙利亚宪法还是比较宪法中都没有规定组成组成当局的机制的法律框架。《宪法》是伴随其产生并决定其制定方法的各种情况和局势的结果。第二,宪法委员会不是一个完全的组成当局,因为它没有权力独自斟酌批准新宪法或对现行宪法的修正案。它可以调整为一个技术协商一致委员会,其作用仅限于制定需要普遍同意的建议。第三,可以说,安全理事会第2254号决议和成立叙利亚宪法委员会的决定构成了该委员会合法性和工作的法律框架。因此,我们可以说,组成叙利亚宪法委员会及其工作的问题已成为一个受国际法律框架管辖的法律问题,标志着其与以往根据国家宪法的法外地位的不同。
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Legal Adaptation for the Syrian Constitutional Committee Formed Based on UN Security Council Resolution 2245
Background: Presumably, constitution-making is a national process reflecting the state’s sovereignty and people's will. The severity of the conflict in Syria and its danger led the international community to intervene, and in 2015, the Security Council issued Resolution 2254 to settle the conflict. This resolution, in item 4, called for the start of the drafting process of a new Constitution for Syria; hereby, the Constitutional Committee was formed in Geneva in 2019 with the agreement of the conflict parties, the government and the opposition, and the consent of the international community represented by the United Nations. This research discusses the extent to which the intervention of the United Nations in the Syrian Constitutional Committee's formation and work in Geneva affects the principle of the Constitution's nationalism and state sovereignty. The research also discusses the legitimacy of the powers granted to this committee, whether in drafting a new constitution for the Syrian state or amending the current 2012 Constitution, and whether they conflict with the national sovereignty principle in considering the constitutional law principles. Methods: We relied on the analytical method to study the legal adaptation of the Syrian Constitutional Committee formed based on Security Council Resolution 2254. The impact of the United Nations intervention in the Syrian Constitutional Committee and whether it conflicts with the principle of national sovereignty depends on clarifying the role played by the United Nations in forming the committee and its ability to impose binding decisions on it. Achieving this objective requires analysing the powers of the Constitutional Committee in light of the principles and rules of constitutional law. This entails determining whether the committee possesses the full authority of the original constituent power to establish a new constitution for the state without referring to the people or if its jurisdiction is limited to drafting. Through this analytical method, we shall know whether the formation of the Constitutional Committee and the jurisdiction granted contradicts the principle of national sovereignty, which assumes that the Constitution is a national industry. Results and Conclusions: The formation of the Syrian Constitutional Committee, authorised by the United Nations through the Security Council Resolution 2254, does not detract from Syrian national sovereignty nor conflict with the principle of constitutional nationalism. Firstly, the formation of the constituent authority responsible for establishing the Constitution is not a legal issue but rather derives its existence from reality, and this applies to the Syrian Constitutional Committee, which derived its existence from the Syrian reality conflict and with the agreement of its parties, government and opposition. Therefore, one cannot say that the formation of this committee is illegitimate or inconsistent with the principles of constitutional law, given the absence of a legal framework governing the mechanism for forming the constituent authority, whether in Syrian constitutional law or comparative constitutional law. The Constitution is a result of the circumstances and situations that have accompanied its emergence and determined the method of its establishment. Secondly, the Constitutional Committee is not a full constituent authority because it does not have the power to approve a new constitution or an amendment to the current Constitution in its sole discretion. It might adapt as a technical consensus committee whose role is limited to formulating proposals that require popular consent. Thirdly, It is arguable that Security Council Resolution 2254 and the decision to form the Syrian Constitutional Committee constitute the legal framework from which this committee derives its legitimacy and work. Therefore, we can say that the issue of forming the Syrian Constitutional Committee and its work has become a legal issue governed by an international legal framework, marking a departure from its previous extrajudicial status under national constitutional law.
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50.00%
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