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War Powers Clauses: A Globally Comparative Perspective Based on 191 Constitutions

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DOI: 10.4236/blr.2018.95035    122 Downloads   225 Views  
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ABSTRACT

The restriction of war powers is one of the core functions of model constitutions. War powers clauses, relating to the distribution of the powers to decide on, declare and lead war, are basic constitutional instruments for control over war. Through a global survey of war powers clauses based on a comprehensive review of 191 constitutions in force, the article found that, although war powers clauses vary, some common techniques, models and logics can be found. Three models are built to describe the relationship between the power to decide whether to go to war and the power to declare war. The article also provided a statistical view on the commonalities of the functional distribution of war powers in making the proposal of war, approving the bill of war, and deciding whether to go to war in the absence of the legislative branch. In addition, given that in most nations, the head of state doubles as commander-in-chief, the abuse of war powers by commanders-in-chief, following the example of some western nations since World War II, may result in unrestricted undeclared wars, which implies a return to authoritarianism in war-making and poses a growing challenge to the constitutional restriction of contemporary war powers.

1. Introduction

Wars result from a complex set of calculations by domestic actors in two or more different states (Fearon, 1995) . One of the overall goals of a constitution is to prevent government officials from needlessly disturbing the peace. Thus, the restriction of war powers is one of the core functions of model constitutions. Historically, the power to make war was a monarchical prerogative. Only the individuals in the most powerful positions, such as the emperor, Khalifa, king, or queen, had the power to decide whether to go to war and declare war. Many arguments of legal controlling war powers occurred throughout the history of political and legal theory. Niccolò Machiavelli, John Locke, Montesquieu and de Tocqueville all argued that the executive should be able to decide autonomously over the deployment of armed forces (Owens & Pelizzo, 2009) . Given that only a civilian legislative could assure civil supremacy and political accountability, American framers such as James Madison tried to establish a better system of war powers aiming to “chain the dogs of war” by shifting the powers from a monarchical prerogative to a constitutional authority (Wormuth & Firmage, 1989) . Most current constitutionalists concur that war powers are constitutional powers that must be exercised consistently with limits and with prudence (Franklin, 2010) . The constitutional provisions on making war are often called war powers clauses that authorize the head of state, the executive branch or the legislative branch to decide whether to go to war, declare war and lead the military.

Many comparative studies of war powers show constitutional assignment of war powers notably affects their war making processes. Damrosh (1995) argued that the body of experience of the mature democracies in their war-and-peace decisions reflects a common core of commitment to democratic accountability. Martinez (2006) argued that the power to wage war is intrinsically “executive” in nature by a comparative study of British and German parliamentary systems, the semi-presidential French system, and the presidential Mexican and South Korean system. Wagner, Peters and Glahn (2010) described the decision-making power that parliaments possess before troops can be deployed by their governments in 49 country studies. Dieterich, Hummel and Marschall (2010) present a survey of parliamentary “war powers” based on a comprehensive and detailed review of the degrees and institutional forms of parliamentary involvement in military security policy-making. Ginsburg (2014) argued that constitutions continue to allocate the power of declaring war, even though such declarations have become meaningless in international law and showed a trend toward specifying legislative involvement in approving the actions of commanders-in-chief. Those researches have pioneered this form of comparative study of constitutional control of war powers.

This article examines that the internal structure of constitutional war-making power leads to war selection. A cross-national analysis of constitutional control over war and a comparative understanding of war powers clauses can help us explore the constitutional role in the exercise of war powers and find that some nations share certain basic models that distinguish them from other nations in the decision-making processes of peace and war. By searching the keywords “war/military/armed/defense/invasion” and later manually screening the results, the article analysed the war powers clauses of all 185 codified constitutions1 and 6 uncodified constitutions2 in force. Partially recognized regimes and dependent territories such as Samoa, Aruba and Virgin Islands are not in the scope of the analysis. All constitution texts are downloaded from the website “constituteproject.org”. In thinking about the optimal Peace-oriented constitutional design, the article tries to explain whether constitutional assignment of war powers may effect the propensity of states to enter into conflict.

In the following sections, the article first introduces the three basic models of the powers to decide on and declare war: the democratic model, the semi-democratic model and the dictatorship model. It then engages in a descriptive exercise demonstrating the allocation of war powers by providing a comparative analysis to show who makes the proposal of war, who approves the bill of war, and who decides whether to go to war in the absence of a legislative branch. Finally, based on the example of the United States, the article argues that the abuse of war powers by commanders-in-chief may result in unrestricted undeclared wars, implying a return to authoritarianism in war-making.

Nevertheless, it should be mentioned that the article only analysed war powers clauses in a comparative study of constitution texts. However, in those nations with nominal and semantic constitutions3, contents of constitution are not always corresponding to the reality, and the exercising of war powers in those nations are beyond the scope of this research. Of course, these analyses based on statistical data may not be comprehensive and self-explanatory in describing the major constitutional factors in war-making. In addition to the powers to decide whether to go to war, declare war and lead war, there are other clauses that restrict war, such as the budget process, the audit and oversight mechanisms, the chain of the military command system, and the relationship between civil and military authorities (Ginsburg, 2014) . What’s more, a few constitutions have banned war. Japan outlaws war as a means to settle international disputes. Algeria4, Azerbaijan5, Bahrain6, Germany, Italy7, the Republic of Korea8, Kuwait9, Qatar10 and United Arab Emirates11 definitely prohibit aggressive war.

2. Three Basic Models of Powers to Decide and Declare War

By a comparative study of the 185 codified and 6 uncodified constitutions in force, the article has found that 127 (66.49% of 191) constitutions have clauses on the decision or declaration of war, and these can be classified into three basic models: Democratic model: A legislative body such as parliament, congress, or national assembly makes the decision whether to go to war and the declaration of war. Semi-democratic model: A public person such as the head of state or an organ of the executive branch declares war with the endorsement decided by a collective such as the congress. Dictatorship model: The head of state can decide whether to go to war and declare war on his/her own. Given that some constitutions do not mention the power to decide whether to go to war but only the power to declare war, if the constitution does not authorize other organs the power to decide whether to go to war, the article presumes that whoever can declare war also has the power to decide whether to go to war. However, a few nations cannot be described by these three models. In Israel12, Lebanon13 and Papua New Guinea14, the state may only begin a war pursuant to a government decision. In the United Arab Emirates15, the Supreme Council, the highest legislative and executive body, approves war.

2.1. Democratic Model

The democratic model is a model in which the legislative branch has the power to decide whether to go to and declare war. As Table 1 shows below, 26 (20.47% of 127) nations follow the democratic model:

The War Powers Clause of the United States Constitution is the first and most typical clause of this model. As James Wilson explained, “It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large” (Elliot,

Table 1. Nations following the democratic model.

A semi-democratic model is a model in which the legislative branch can decide whether to go to war, and the head of state or the executive branch can declare war with the endorsement of the legislative branch. It differs from the democratic model in that both the legislative branch and the executive branch/head of state are responsible for waging war. In many nations, although the legislative branch can approve the decree deciding whether to go to war, the president or the council has the power to reject (the bill of) the declaration of war. As Table 2 shows below, 68 (53.54% of 127) nations are classified under the semi-democratic model.

Table 2. Nations following the semi-democratic model.

In most of these countries, the head of state, such as the king or president, declares war according to the constitutional procedure based on the authorization of the legislative branch. Although the United Kingdom does not have one specific constitutional document named as such, the prime minister alone has the authority to send troops to war using royal prerogative powers that are decided by the parliament and declared by the queen (Haddon, 2013) . What is worth mentioning is that in Armenia and Sweden, it is not the head of state but the government that declares war based upon the legislature’s decision. In addition, the Netherlands declares war by a royal decree signed by the king and by one or more ministers or state secretaries.

The article also finds that the constitutions of 11 nations have statutes about who decides whether to go to war but do not mention who declares it. These countries are Bangladesh109, Georgia110, Ireland111, Kazakhstan112, the Lao People’s Democratic Republic113, Macedonia114, Mali115, Mauritania116, Senegal117, Slovenia118, and Venezuela119. However, in these nations, the declaration of war is in the form of decrees or ordinances that are signed and pronounced by the head of state or the leader of government. Thus, they could be seen as a special category of the semi-democratic model. In all, this model includes 26 African nations, 16 Asian nations, 22 European nations, 5 North American nations, 8 South American nations, 1 Oceanian nation and 1 transcontinental nation, 79 (62.2% of 127) in total.

In the semi-democratic model, making war requires the head of state/executive branch and the legislative branch to cooperate and come to a consensus. Otherwise, as shown below, in 63 (79.75% of 79) nations, the head of state or the executive branch could exercise veto power to reject what the legislative branch has approved and return the bill to the legislature: Afghanistan120, Armenia121, Argentina122, Azerbaijan123, Bangladesh124, Brazil125, Bulgaria126, Burkina Faso127, Cape Verde128, Chad129, Chile130, Colombia131, Costa Rica132, Côte d’Ivoire133, the Democratic Republic of the Congo134, Croatia135, Cyprus136, Djibouti137, Egypt138, El Salvador139, Finland140, France141, Gabon142, Gambia143, Guinea144,

Guinea-Bissau145, Haiti146, Honduras147, Italy148, Kenya149, the Republic of Korea150, Kyrgyzstan151, Latvia152, Lithuania153, Maldives154, Mexico155, Myanmar156, Netherlands157, Niger158, Nigeria159, Portugal160, Rwanda161, Sao Tome and Principe162, Sierra Leone163, Slovakia164, Sudan165, Tanzania166, Thailand167, Timor-Leste168, Togo169, Tonga170, Tunisia171, Uganda172, Ukraine173, Uzbekistan174, Georgia175, Ireland176, Kazakhstan177, the Lao People’s Democratic Republic178, Macedonia179, Mali180, Mauritania181, and Venezuela182. In many of these countries, despite rejection by the head of state, if the bill or draft referring to war-making can be approved again by a supermajority of two-thirds of the legislature such as the parliament, congress, or national assembly, the bill is considered endorsed and enforceable. In addition, in some nations such as Ireland, the exercising of veto can put a bill or draft law by the legislative branch to a vote by referendum. These provisions, of course, further increase the prudence and deliberation of war-making.

2.3. Dictatorship Model and Nations without Clauses of Deciding and Declaring War

As the name suggests, in the dictatorship model, a single person (usually the executive head of state) has nearly unlimited power to initiate war, while the legislative and executive branches can usually pose very limited restrictions on him/her. As Table 3 shows below, 18 (14.17% of 127) nations follow the dictatorship model (listed in alphabetical order).

In such nations, the legislature can participate in the process of deciding whether to go to war only by providing advice to the head of state, such as through an advisory committee. For example, in Mozambique, the Council of State shall compulsorily advise the President of the Republic on war and peace affairs whenever the President requests such advice. Correspondingly, the duty of the executive head of state is to notify and inform the legislature with clarifications

Table 3. Nations following the dictatorship model.

whenever the interest and the security of the nation thus allow. In this model, there are usually very limited restrictions on those with the powers of making war. In some nations, such as Algeria, Angola, and Burundi, before declaring war, the president should consult with the legislature. For example, in Algeria, before declaring war, the president has to convene the Council of Ministers, hear the High Council of Security and consult with the President of the Council of the Nation and the President of the People’s National Assembly. In Zimbabwe, although the president has the power to declare war, there is a rejection process by which the Senate and the National Assembly, by a joint resolution passed by at least two-thirds of the total membership of Parliament, can resolve that the declaration of war should be revoked. In short, this model insists that an individual judgement would be superior to a collective judgement, which may cause the nation to go to war without a political consensus. Moreover, without a required bargaining process, the head of the state would have no obligation to explain why war was necessary to the public, who would ultimately bear its cost. An empirical study shows that democracies are highly effective and indeed more successful than those dictatorship nations in similar circumstances (Schultz, 2001) .

Meanwhile, as Table 4 shows below, there are 63 (32.98% of 191) nations whose powers to decide whether to go to and declare war have not been regulated by their constitutions.

In brief, in 63 nations, including powerful military nations such as Russia, India, and Pakistan, waging a war may not require constitutional authorization by a widely preventive collective.

3. A Global Comparative Study of the Assignment of War Powers

In the nations following the democratic and semi-democratic models, waging a

Table 4. Nations without clauses of deciding whether to go to war and declaring war.

war requires specific constitutional procedures that would prevent the nation from entering into conflict without a full deliberative process in which the justice, necessity, facts, and aims of the war could be fully reviewed before each member of the legislative branch solemnly stepped forward and cast their vote on the matter. In the comparative analysis of the descriptive data from the 26nations of the democratic model and the 79 nations of the semi-democratic model, the article tries to find common characteristics among those who make the proposal of war, those who approve the bill of war, and whose who decide to go to war in the absence of the legislative branch.

3.1. Comparative Study of Making the Proposal to Wage a War

Statistical data show that 23 (21.9% of 105) nations have special procedural requirements for making the proposal to wage a war. As Table 5 shows below, there are 3 major categories: proposal by the president, proposal by the government and proposal with mandatory consultation requirements. In the first category, the president’s proposal to make war is the prerequisite before the legislature makes the declaration of war. In the second category, the legislative branch declares war following a government proposal. In the third category, consultation with specific executive organs such as the council of ministers or the national defence council or relevant reports by executive organs is the prerequisite for a decision of war made by the legislative branch.

Table 5. Distribution of powers to propose a war bill.

Four nations cannot be classified as above. In Morocco220, the declaration of war takes place after communication of the king to the parliament. InIraq221, a joint request from the President of the Republic and the prime minister is the prerequisite of the declaration of war by the Council of Representatives. In Sudan222, the proposal of making war is made by the president with the consent of the first vice president. In Macedonia223, either the president or the government or at least 30 representatives can make such a proposal. In Cape Verde224, the government’s request and consultation with the council are required before a decision of war is made.

3.2. Comparative Study of the Distribution of the Power to Approve War

The next question is who has the power to approve the war bill/decree. Before going to war, nations typically engage in what is known in the literature as crisis bargaining, a communicative process of signalling about capabilities and resolve (Reiter, 2003) . As Table 6 below shows, with the exceptions of the 18 nations of

Table 6. Distribution of legislative powers to decide whether to go to war.

the dictatorship model and the 64 nations without constitutional provisions on the powers to decide whether to go to war and declare war, most of the remaining 109 nations can be divided into 5 major types according to the distribution of the power to decide whether to go to war. Type 1 could be labelled “both houses jointly”, in which the adoption of a war bill/resolution requires the two chambers/houses of a nation with a bicameral legislature to meet as the congress/parliament in a joint public session and all members of the legislature to vote. Type 2 could be labelled “the lower house” in which the lower house of a bicameral legislature has the power to decide whether to go to war. Type 3 could be labelled “the upper house” in which the upper house of a bicameral legislature can decide whether to go to war. Type 4 could be labelled “the single house” in which the single body of a unicameral legislature has the power to decide whether to go to war. Type 5 could be labelled “the government” in which the government can decide whether to go to war.

Nevertheless, two nations cannot be classified into a certain type above. In the United Arab Emirates331, a war bill is approved by the Supreme Council, which is the highest legislative and executive body. In Côte d’Ivoire332, the Parliament has the power to decide whether to go to war; however, in case of disagreement between the two houses, the decision is made by the National Assembly (the lower chamber).

In addition, in 17 (15.6% of 109) nations, declaration of war requires a stricter voting basis333 than other legislative processes. In Luxembourg334, Uganda335, Egypt336, Mali337, and Guinea338, a two-thirds majority vote of the all members of the only house of the legislature is required. In Hungary339, such a decision requires the vote of two-thirds of the present members of the only house. In Slovakia340 and Tunisia341, the decision of war demands a three-fifths majority vote of all members of the single house. In Philippines342, Czech Republic343, Georgia344, Uruguay345, Madagascar346, Thailand347, and South Sudan348, such decisions are approved by a vote of two-thirds of both houses assembled in a joint session. In Iraq349, such a decision requires a two-thirds majority vote of the lower house. In Lebanon350, such a decision requires the vote of two-thirds of the government members. Supermajority rules can “prevent the government from becoming an engine for producing private interest goods” (McGinnis & Rappaport, 1999) , including political ambitions, thus providing an effective contemporary mechanism for controlling the war powers.

3.3. Comparative Study of “Exceptional Clause”

Deciding on and declaring war constitutionally and prudently requires chiefly that the legislature consistently perform its constitutional duty to decide whether to initiate war. In total, 32 (29.36% of 109) constitutions have designed so-called “exceptional clauses” in case of the absence of the legislature and urgent cases351. If the legislature or its permanent/standing committee is prevented from taking decisions or an urgent case arises, according to the exceptional clauses, war powers may be vested in a particular political person or body of the executive branch. As Table 7 below shows, such clauses can be divided into 4 categories:

Table 7. Categories of exceptional clauses.

in the first category, if the legislature is not able to meet, the head of state such as the king or the president may decide whether to declare war and take steps for the protection of the nation without the authorization of the legislature. The second category is the same as the first, except that the head of state must submit these decisions for approval in the next sitting of the legislature. In the third category, if the legislature is not able to meet, the government or a special department may decide whether to go to war and take steps for the protection of the nation without the authorization of the legislature.

Three nations, however, cannot be classified into one of these categories. In Croatia381, in case of an immediate threat, the president with the counter signature of the prime minister may order the employment of the armed forces. In Czech Republic382, the Senate shall declare war when the Assembly of Deputies is dissolved. In Serbia383, the decision of war shall be passed by the president together with the President of the National Assembly and the prime minister when the National Assembly cannot be convened.

4. Designation of Commander-in-Chief and the Return to Authoritarianism in War-Making

In most nations, the head of state doubles as commander-in-chief. Following the example of some Western nations such as the United Kingdom and the United States, the presidents of modern presidential nations tend to abuse their powers to make undeclared wars that need not be approved by the legislative branch. This trend can be seen as a return to authoritarianism in war-making that is redefining war powers as a monarchical prerogative. This return, however, is posing a challenge to constitutional instruments control over war analysed in the section II and III.

4.1. Global Comparative Study of the Designation of Commander-in-Chief

By keyword analysis of the 191 constitutions in force, 160 constitutions were found that have clauses on the designation of a commander-in-chief.384 In 154 nations (96.25% of 160 constitutions), the power of the commander-in-chief of the armed forces is vested in the head of state including executive and non-executive persons, such as the president, the prime minister, or the queen. It is worth mentioning that in Bosnia and Herzegovina, the three-member presidency385 is the chief, and each member of the presidency shall have civilian command authority over the armed forces. As Table 8 below shows, 6constitutionsdo not vest the head of state but others with the power of commander-in-chief.

As the statistical data show, most of the modern constitutions have reached a consensus that a single person as commander-in-chief, not a collective or group, shall make all expeditious and coordinated tactical decisions necessary to wage war successfully (Turner, 1984) . Thus, in most nations, the constitution authorizes the commander-in-chief to identify and respond to foreign threats, using such force as he/she deems necessary. However, the abuse of the powers of the commander-in-chief since World War II, to some extent, has promoted a return to authoritarianism in making war and resulted in modern undeclared wars.

4.2. The Return to Authoritarianism in War-Making: The United States as an Example

With the return to authoritarianism in war-making, in the process of making war, the legislature is eclipsed by the commander-in-chief who often doubles as the head of state. Recognizing that war is the most serious decision a leader can take, such a return would allow what the framers of the United States and later constitutionalists tried to guard against: a single person making the war decision even when there has been no real attack on the nation and there is ample time for a collective, deliberative, and accountable decision by the legislature.

The return in the United States is typical. A review of history can show how the return has come about. Historically, the United States Congress has declared war only five times392. Nevertheless, Since World War II, the United States has been involved in almost one hundred military conflicts393 without the declaration of war, of which the Korean War was the first. In 1947, as the Cold War began, the

Table 8. Others designated as commander-in-chief.

United States created the office of the Secretary of Defense, the Joint Chiefs of Staff, the National Security Council, and the CIA. Each of these reported to the president, greatly enlarging his authority over national security. Later presidents, however, contended that they did not need congressional authorization to use force (Garcia, 2012) . The legitimacy of such unauthorized wars has spurred debate in the United States and around the world. Congress tried to settle these disputes by passing the War Powers Resolution in 1973, which was intended to check the president’s power to commit the United States to an armed conflict without the consent of Congress. It stipulates that president can send United States Armed Forces into action abroad only by declaration of war by Congress, “statutory authorization”, or in case of “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” Since then, however, presidents and some researchers have consistently maintained that parts of the resolution intrude unconstitutionally on the president’s war powers (Turner, 2012) . It is widely believed that the War Powers Resolution has been violated several times since its entry into force (The Constitution Project, 2005) . Many congressional leaders have argued that the executive branch has failed to abide by either the constitutional limitations on presidential authority or the provisions of the resolution (Goldstein, 1988) .

The return in the United States has had worldwide influence. Since World War II, more commanders-in-chief in presidential democracies have emulated the United States by winning more independent powers to initiate war in struggles with the legislature by waging undeclared wars, which severely challenge the legitimacy of the war powers clauses.

4.3. The Challenge of Undeclared War

The large number of undeclared wars since World War II, as a result of the return mentioned above, have challenged the traditional constitutional control over war. A declaration of war is a formal document that promises war against another nation or proclaims that a state of war already exists. Article 1 of the Hague Convention (III) demands that states shall issue a declaration of war before the commencement of hostilities. The declaration of war had legal effects such as changing the rights of neutral parties or the relationships between states.

However, since World War II, the legal obligation of a declaration of war has been mostly ignored. The “Malayan Emergency” set by the United Kingdom was the first modern war without a formal declaration. As mentioned above, since 1941, the United States has not formally declared war. Moreover, a number of nations have followed these examples and characterized limited warfare and pre-emptive or preventive military actions as a “military action” or “armed operation”. The most recent undeclared war was the Russian military intervention in Ukraine. In addition, the rapid growth and spread of terrorist crimes around the world poses a serious threat to the peace and security of the international community. However, according to the traditional definition, a war is fought between sovereign states, and most terrorist attacks are committed by international terrorists and criminal groups that are non-state actors. Theoretically, there may be no need for a traditional declaration of war on terrorism.

Today, declarations of war have become so meaningless that, while the legislature can authorize war, a collective, deliberative, and accountable decision by the legislature is not necessary for a commander-in-chief to wage an undeclared war. By undeclared war, the commander-in-chief can bypass the constitution and wage a real war instead of taking up only the legal duty to make day-to-day tactical decisions. Complementarily, the undeclared wars in recent years have given the commander-in-chief more room to make decisions with the lack of collective supervision. As Lori FislerDamrosh argued, “Presidents who are weak in their domestic political posture, but who believe themselves to possess very potent and essentially unchecked war powers, are the most dangerous of all.” (Damrosh, 1995) . The return of authoritarianism in war-making and undeclared wars are creating opportunities for those leaders while eroding the legitimacy of the legislative branch in war-making.

5. Conclusion

The global comparative study of war powers clauses based on 191 constitutions contributes a new dimension of the relationship between constitutions and war and generates new insight for the ongoing argument about the roles of the constitution in war-making.

The article found that, although war powers clauses vary, some common techniques, models and logics can be found. In total, 127 (66.49% of 191) constitutions have clauses on the decision to wage war or the declaration of war and can be classified into three basic models. Of these nations, 26 (20.47% of 127) follow the democratic model, and 79 (62.2% of 127) follow the semi-democratic model, and 18 (14.17% of 127) follow the dictatorship model, and notably, some of them have very limited restrictions on the powers of the commander-in-chief. In addition, 4 constitutions with clauses on the decision on or declaration of war cannot be described by those three models. Furthermore, there are 63 (32.98% of 191) nations whose powers to decide and declare war have not been regulated by their constitutions.

The article also provided a statistical view on the assignment of war powers. In the nations following the democratic and semi-democratic models, the article seeks to find commonalities of the functional distribution of war powers in making the proposal of war, approving the bill of war, and deciding whether to go to war in the absence of the legislative branch. There are 23 (21.9% of 105) nations that have special procedural requirements for making a proposal to wage a war. In addition, 109 nations of the democratic model and semi-democratic model can be divided into 5 major types according to the distribution of the power to decide war: in 32 bicameral nations, both houses jointly approve war; in 7 bicameral nations, the lower house approves war; in 1 bicameral nation, the upper house approves war; in 63 unicameral nations, the single house approves war; in 4 nations, the government approves war; and 2 nations cannot be classified into a certain type above. Considering the possibility of the absence of the legislature, 32 (29.36% of 109) constitutions have designed so-called “exceptional clauses” by which war powers may be vested to a particular political person or body of the executive branch in urgent cases.

Moreover, the article revealed that in 154 nations, the powers of the commander-in-chief of the armed forces are vested in the head of state. Learning from the debate over war powers in the United States, the abuse of war powers by the commander-in-chief may result in unrestricted undeclared wars. To gain more room in war-making and bypass the collective decision of the legislature, commanders-in-chief of modern presidential democracy nations tend to make undeclared wars, which violate the Hague Convention (III). This trend can be seen as a return to authoritarianism in war-making that would allow a single person to reacquire war powers. The resurrection of the monarchical prerogative in the 21st century is posing a growing challenge to world peace.

Constitutionalists never give up the aim to “chain the dogs of war”, and currently 179 (93.72% of 191) constitutions proclaim the intention to safeguard the value of peace. However, as the statistical data and regularities above imply, the ideal of constitutional control over war powers is not achieved in reality. In many nations, it is necessary to optimize the design of contemporary war powers clauses by further increasing the extent of the legislature involvement in war-making and constraining the executive branch, especially ambitious commanders-in-chief.

NOTES

1Listed in alphabetical order: Afghanistan, Albania, Algeria, Andorra, Angola, Antigua and Barbuda, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belgium, Belize, Benin, Bhutan, Bolivia, Bosnia and Herzegovina, Botswana, Brazil, Brunei Darussalam, Bulgaria, Burkina Faso, Burundi, Cambodia, Cameroon, Canada, Cape Verde, Chad, Chile, China, Colombia, Comoros, The Democratic Republic of the Congo, Costa Rica, Côte d’Ivoire, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Djibouti, Dominica, Dominican Republic, Ecuador, Egypt, El Salvador, Equatorial Guinea, Eritrea, Estonia, Ethiopia, Fiji, Finland, France, Gabon, Gambia, Georgia, Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guinea-Bissau, Guyana, Haiti, Honduras, Hungary, Iceland, India, Indonesia, Iran, Iraq, Ireland, Israel, Italy, Jamaica, Japan, Jordan, Kazakhstan, Kenya, Kiribati, The Democratic People’s Republic of Korea, The Republic of Korea, Kosovo, Kuwait, Kyrgyzstan, the Lao People’s Democratic Republic, Latvia, Lebanon, Lesotho, Liberia, Libya, Liechtenstein, Lithuania, Luxembourg, Macedonia, Madagascar, Malawi, Malaysia, Maldives, Mali, Malta, Marshall Islands, Mauritania, Mauritius, Mexico, Micronesia, Moldova, Monaco, Mongolia, Montenegro, Morocco, Mozambique, Myanmar, Namibia, Nauru, Nepal, Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Oman, Pakistan, Palau, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Poland, Portugal, Qatar, Romania, Russian Federation, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Samoa, Sao Tome and Principe, Saudi Arabia, Senega, Serbia, Seychelles, Sierra Leone, Singapore, Slovakia, Slovenia, Solomon Islands, Somalia, South Africa, South Sudan, Spain, Sri Lanka, Sudan, Suriname, Swaziland, Sweden, Switzerland, Syrian Arab Republic, Tajikistan, Tanzania, Thailand, Timor-Leste, Togo, Tonga, Trinidad and Tobago, Tunisia, Turkey, Turkmenistan, Tuvalu, Uganda, Ukraine, United Arab Emirates, the United Kingdom, the United States of America, Uruguay, Uzbekistan, Vanuatu, Venezuela, Viet Nam, Yemen, Zambia, Zimbabwe.

2The United Kingdom, Canada, Germany, Israel, New Zealand, Saudi Arabia.

3Karl Loewenstein distinguishes constitutions in three typologies: normative, nominal, semantic. A nominal constitution is like a suit which “for the time being, hangs in the closet, to be worn when the national body politic has grown into it”; and in the case of a semantic constitution “the suit is not an honest suit at all; it is merely a cloak or a fancy dress”.

4Algeria Constitution, art 29.

5Azerbaijan Constitution, art 110.

6Bahrain Constitution, art 20.

7Italy Constitution, art 11.

8The Republic of Korea Constitution, art 5.

9Kuwait Constitution, art 68.

10Qatar Constitution, art 71.

11The United Arab Emirates Constitution, art 140.

12Israel Basic Law: the Knesset, art 40(A).

13Lebanon Constitution, art 65.

14Papua New Guinea Constitution, art 227.

15The United Arab Emirates Constitution, art 140.

16Ethiopia Constitution, art 77.

17Liberia Constitution, art 34.

18Madagascar Constitution, art 95.

19Morocco Constitution, art 49.

20Bahrain Constitution, art 36(A).

21Iraq Constitution, art 61.

22Mongolia Constitution, art 25(1).

23Philippines Constitution, art 5, sec 23(1).

24Albania Constitution, art 171.

25Austria Constitution, art 38.

26Belarus Constitution, art 97.

27Czech Republic Constitution, art 43.

28Estonia Constitution, art 65 and 78.

29Hungary Constitution, art 12.

30Moldova Constitution, art 66.

31Montenegro Constitution, art 132.

32Poland Constitution, art 116(1).

33Romania Constitution, art 65.

34Serbia Constitution, art 201.

35Cuba Constitution, art 75 and 90.

36Guatemala Constitution, art 171.

37Honduras Constitution, art 205.

38The United States of America Constitution, art 1, sec 8.

39Uruguay Constitution, art 85.

40Panama Constitution, art 159.

41Turkey Constitution, art 87 and 92.

42Benin Constitution, art 101.

2.2. Semi-Democratic Model

42Benin Constitution, art 101.

43Burkina Faso Constitution, art 106.

44Cape Verde Constitution, art 148 and 160.

45Chad Constitution, art 123.

46The Democratic Republic of the Congo Constitution, art 86.

47Côte d”Ivoire Constitution, art 104.

48Djibouti Constitution, art 61.

49Eritrea Constitution, art 27(1), art 32.

50Gabon Constitution, art 49.

51Gambia Constitution, ch 6, pt 3(79).

52Guinea Constitution, art 91.

53Guinea-Bissau Constitution, art 68, art 85.

54Kenya Constitution, ch 8, pt 1(95) and 2(132).

55Niger Constitution, art 104.

56Nigeria Constitution, ch 1, pt 2(5).

57Rwanda Constitution, art 134.

58Sao Tome and Principe Constitution, art 76 and 86.

59Sierra Leone Constitution, ch 5, pt 1(40)

60South Sudan Constitution, art 55 and 101.

61Tanzania Constitution, art 44.

62Togo Constitution, art 72 and 93.

63Tunisia Constitution, art 77.

64Uganda Constitution, art 124(1).

65Afghanistan Constitution, art 64.

66Azerbaijan Constitution, art 95 and 109.

67Cambodia Constitution, art 24.

68China Constitution, art 62 and 80.

69Indonesia Constitution, art 11(1).

70The Republic of Korea Constitution, art 60.

71Maldives Constitution, art 115.

72Myanmar Constitution, pt 3, art 213.

73Suriname Constitution, art 102.

74Thailand Constitution, sec 156 and 177.

75Timor-Leste Constitution, art 85 and 87.

76Uzbekistan Constitution, art 78 and 93.

77Vietnam Constitution, art 70, 74 and 88.

78Bulgaria Constitution, art 84.

79Croatia Constitution, art 100.

80Cyprus Constitution, art 50(1).

81Denmark Constitution, pt 3, art 19.

82Finland Constitution, sec 93.

83France Constitution, art 3.

84Italy Constitution, art 78 and 87.

85Kyrgyzstan, art 64.

86Latvia Constitution, art 43 and 44.

87Lithuania, art 84.

88Luxembourg Constitution, art 37.

89Netherlands Constitution, art 96.

90Portugal, art 161 and 179.

91Slovakia Constitution, art 86 and 102.

92Spain Constitution, sec 63(3).

93Sweden Constitution, ch 15, pt 12.

94Ukraine Constitution, art 85 and 106.

95Costa Rica Constitution, art 121 and 147.

96El Salvador Constitution, art 131 and 168.

97Haiti Constitution, art 140.

98Mexico Constitution, art 89 and 118.

99Tonga Constitution, art 36.

100Argentina Constitution, art 75.

101Brazil Constitution, art 49.

102Chile Constitution, art 32.

103Colombia Constitution, art 173 and 189.

104Peru Constitution, art 118.

105Sudan Constitution, art 58(1) and 91(2).

106Syrian Arab Republic Constitution, art 72 and 102.

107Armenia Constitution, art 118.

108Egypt Constitution, art 152.

109Bangladesh Constitution, art 63.

110Georgia Constitution, art 62.

111Ireland Constitution, art 28.

112Kazakhstan Constitution, art 53.

113The Lao People’s Democratic Republic Constitution, art 53.

114Macedonia Constitution, art 124.

115Mali Constitution, art 71.

116Mauritania Constitution, art 58.

117Senegal Constitution, art 70.

118Slovenia Constitution, art 92.

119The Bolivarian Republic of Venezuela Constitution, art 187.

120Afghanistan Constitution, art 94.

121Armenia Constitution, art 139.

122Argentina Constitution, art 83.

123Azerbaijan Constitution, art 110.

124Bangladesh Constitution, art 80.

125Brazil Constitution, art 66.

126Bulgaria Constitution, art 101.

127Burkina Faso Constitution, art 48.

128Cape Verde Constitution, art 149.

129Chad Constitution, art 81.

130Chile Constitution, art 73.

131Colombia Constitution, art 165.

132Costa Rica Constitution, art 125.

133Côte d'Ivoire Constitution, art 74.

134The Democratic Republic of the Congo Constitution, art 137.

135Croatia Constitution, art 89.

136Cyprus Constitution, art 48.

137Djibouti Constitution, art 34.

138Egypt Constitution, art 123.

139El Salvador Constitution, art 137.

140Finland Constitution, sec 77.

142France Constitution, art 10.

142Gabon Constitution, art 17.

143Gambia Constitution, art 100.

144Guinea Constitution, art 79.

145Guinea-Bissau Constitution, art 69.

146Haiti Constitution, art 144.

147Honduras Constitution, art 216.

148Italy constitution, art 74.

149Kenya Constitution, art 115.

150The Republic of Korea Constitution, art 53.

151Kyrgyzstan Constitution, art 64.

152Latvia Constitution, art 71.

153Lithuania Constitution, art 71.

154Maldives Constitution, art 91.

155Mexico Constitution, art 72.

156Myanmar Constitution, art 105.

157Netherlands Constitution, art 87.

158Niger Constitution, art 58.

159Nigeria Constitution, art 58.

160Portugal Constitution, art 136.

161Rwanda Constitution, art 106.

162Sao Tome and Principe Constitution, art 77.

163Sierra Leone Constitution, art 106.

164Slovakia Constitution, art 87.

165Sudan Constitution, art 91.

166The United Republic of Tanzania Constitution, art 97.

167Thailand Constitution, sec 146.

168Timor-Leste Constitution, art 88.

169Togo Constitution, art 67.

170Tonga Constitution, art 68.

171Tunisia Constitution, art 81.

172Uganda Constitution, art 91.

173Ukraine Constitution, art 94.

174Uzbekistan Constitution, art 84.

175Georgia Constitution, art 68.

176Ireland Constitution, art 27.

177Kazakhstan Constitution, art 44.

178The Lao People’s Democratic Republic Constitution, art 60.

179Macedonia Constitution, art 75.

180Mali Macedonia Constitution, art 40.

181Mauritania Constitution, art 70.

182Venezuela Constitution, art 214.

183Algeria Constitution, art 109.

184Angola Constitution, art 119.

185Burundi Constitution, art 110.

186Equatorial Guinea Constitution, art 41.

187Mozambique Constitution, art 161 and 166.

188Somalia Constitution, art 71 and 90.

189Zambia Constitution, art 29.

190Zimbabwe Constitution, art 111.

191The Islamic Republic of Iran Constitution, art 110.

192Jordan Constitution, art 33.

193The Democratic People’s Republic of Korea Constitution, art 103.

194Kuwait Constitution, art 68.

195Oman Constitution, art 42.

196Qatar Constitution, art 70 and 71.

197Basic Law of Saudi Arabia, art 61.

198Sri Lanka Constitution, art 33(2).

199Belgium Constitution, art 167(1).

200Greece Constitution, art 36.

201Azerbaijan Constitution, art 95.

202Albania Constitution, art 171.

203Chile Constitution, art 63.

204Estonia Constitution, art 65.

205Mexico Constitution, art 73.

206Rwanda Constitution, art 134.

207Sierra Leone Constitution, art 40.

208Tanzania Constitution, art 44.

209Ukraine Constitution, art 85.

210Armenia Constitution, art 118.

211Ethiopia Constitution, art 55.

212Portugal Constitution, art 135.

213Slovakia Constitution, art 119.

214Timor-Leste Constitution, art 85.

215Slovenia Constitution, art 92.

216The Democratic Republic of the Congo Constitution, art 86.

217Egypt Constitution, art 152.

218El Salvador Constitution, art 131.

219The Republic of Korea Constitution, art 89.

220Morocco Constitution, art 99.

221Iraq Constitution, art 61.

222Sudan Constitution, art 213.

223The Republic of Macedonia Constitution, art 124.

224Cape Verde Constitution, art 148.

225Argentina Constitution, art 75.

226Austria Constitution, art 38.

227Bahrain Constitution, art 36.

228Brazil Constitution, art 49.

229Cambodia Constitution, art 24.

230Chile Constitution, art 63.

231The Democratic Republic of the Congo Constitution, art 86.

232Czech Constitution, art 39.

233France Constitution, art 35.

234Gabon Constitution, art 49.

235Georgia Constitution, art 62.

236Haiti Constitution, art 93.

237Italy Constitution, art 78.

238Kazakhstan Constitution, art 53.

239Kenya Constitution, art 132.

240Liberia Constitution, art 34.

241Madagascar Constitution, art 95.

242Mauritania Constitution, art 58.

243Mexico Constitution, art 73.

244Myanmar Constitution, art 213.

245Netherlands Constitution, art 96.

246Nigeria Constitution, art 5.

247Philippines Constitution, art 5, sec 23.

248Romania Constitution, art 65.

249Rwanda Constitution, art 134.

250South Sudan Constitution, art 55.

251Sudan Constitution, art 213.

252Thailand Constitution, sec 156.

253The United States of America Constitution, art 1, sec 8.

254Uruguay Constitution, art 88.

255Uzbekistan Constitution, art 78.

256Afghanistan Constitution, art 64.

257Belarus Constitution, art 97.

258Ethiopia Constitution, art 77.

259Indonesia Constitution, art 11.

260Iraq Constitution, art 61.

261Ireland Constitution, art 28.

262Senegal Constitution, art 70.

253Colombia Constitution, art 173.

264Armenia Constitution, art 118.

265Azerbaijan Constitution, art 95.

266Bangladesh Constitution, art 63.

267Benin Constitution, art 101.

268Bulgaria Constitution, art 84.

269Burkina Faso Constitution, art 106.

270Cape Verde Constitution, art 148.

271Chad Constitution, art 123.

272China Constitution, art 62.

273Costa Rica Constitution, art 121.

274Croatia Constitution, art 80.

275Cuba Constitution, art 75.

276Cyprus Constitution, art 50.

277Denmark Constitution, art 19.

278Djibouti Constitution, art 61.

279Egypt Constitution, art 152.

280El Salvador Constitution, art 131.

281Eritrea Constitution, art 32.

282Estonia Constitution, art 65.

283Finland Constitution, sec 93.

284Gambia Constitution, art 79.

285Guatemala Constitution, art 171.

286Guinea Constitution, art 91.

287Guinea-Bissau Constitution, art 85.

288Honduras Constitution, art 205.

289Hungary Constitution, art 1.

290The Republic of Korea Constitution, art 60.

291Kyrgyzstan Constitution, art 74.

292The Lao People’s Democratic Republic Constitution, art 53.

293Latvia Constitution, art 43.

294Lithuania Constitution, art 142.

295Luxembourg Constitution, art 37.

296Macedonia Constitution, art 124.

297Maldives Constitution, art 115.

298Mali Constitution, art 71.

299Moldova Constitution, art 66.

300Mongolia Constitution, art 25.

301Montenegro Constitution, art 82.

302Niger Constitution, art 104.

303Panama Constitution, art 159.

304Peru Constitution, art 118.

305Poland Constitution, art 116.

306Portugal Constitution, art 135.

307Sao Tome and Principe Constitution, art 86.

308Serbia Constitution, art 99.

309Sierra Leone Constitution, art 40.

310Slovakia Constitution, art 84.

311Slovenia Constitution, art 92.

312Spain Constitution, sec 63.

313Suriname Constitution, art 102.

314Sweden Constitution, art 14.

315Syrian Arab Republic Constitution, art 102.

316Tanzania Constitution, art 44.

317Timor-Leste Constitution, art 85.

318Togo Constitution, art 72.

319Tonga Constitution, art 36.

320Tunisia Constitution, art 77.

321Turkey Constitution, art 92.

322Uganda Constitution, art 124.

323Ukraine Constitution, art 85.

324Venezuela Constitution, art 187.

325Vietnam Constitution, art 88.

326Zambia Constitution, art 37.

327Israel Basic Law: the Knesset, art 40.

328Lebanon Constitution, art 65.

329Morocco Constitution, art 99.

330Papua New Guinea Constitution, art 227.

331The United Arab Emirates Constitution, art 140.

332Côte d”Ivoire Constitution, art 104.

333According to Robert’s Rules of Order, a widely used guide to parliamentary procedure, the bases for determining the voting result consist of two elements: 1. the percentage of votes that are required for a proposal to be adopted or for a candidate to be elected; and 2. the set of members to which the proportion applies (Robert, 2011) .

334Luxembourg Constitution, art 37.

335Uganda Constitution, art 124.

336Egypt Constitution, art 152.

337Mali Constitution, art 71.

338Guinea Constitution 2010, art 91.

339Hungary Constitution, art 47.

340Slovakia Constitution, art 84.

341Tunisia Constitution, art 77.

342Philippines Constitution, art 6, sec 23.

343Czech Constitution, art 39.

344Georgia Constitution, art 62.

345Uruguay Constitution, art 88.

346Madagascar Constitution, art 95.

347Thailand Constitution, sec 156.

348South Sudan Constitution, art 55.

349Iraq Constitution, art 61.

350Lebanon Constitution, art 65.

351According to the comparative study of the “exceptional clauses”, the two below may be seen as urgent cases: 1. Actual, imminent or reasonably attack on the nation or its armed forces or its people abroad; 2. Urgent obedience of a common defense obligation derives from an international agreement.

352Denmark Constitution, art 19.

353Netherlands Constitution, art 96.

354Mexico Constitution, art 118.

355Benin Constitution, art 101.

356Brazil Constitution, art 84.

357Colombia Constitution, art 189.

358Egypt Constitution, art 152.

359Estonia Constitution, art 78.

360Honduras Constitution, art 245.

361Hungary Constitution, art 48.

362Niger Constitution, art 104.

363Poland Constitution, art 116.

364Suriname Constitution, art 102.

365Turkey Constitution, art 92.

366Ukraine Constitution, art 106.

367Albania Constitution, art 171.

368Bulgaria Constitution, art 100.

369Kyrgyzstan Constitution, art 64.

370Latvia Constitution, art 44.

371Lithuania Constitution, art 84.

372Macedonia Constitution, art 124.

373Moldova Constitution, art 87.

374Mongolia Constitution, art 33.

375Slovenia Constitution, art 92.

376Cuba Constitution, art 90.

377Sweden Constitution, art 14.

378Montenegro Constitution, art 131.

379Ireland Constitution, art 28.

380Armenia Constitution, art 118.

381Croatia Constitution, art 100.

382Czech Constitution, art 11.

383Serbia Constitution, art 201.

384There are 31 constitutions without the clauses on designation of Commander-in-Chief: Andorra, Antigua and Barbuda, Bahamas, Barbados, Belize, Cyprus, Dominica, Grenada, Iceland, Jamaica, Japan, Kiribati, Libya, Liechtenstein, Malta, Marshall Islands, Mexico, Micronesia, Monaco, Nauru, Palau, Panama, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Samoa, Singapore, Solomon Islands, Sweden, Tuvalu, Vanuatu.

385The Presidency of Bosnia and Herzegovina is the three-member body that collectively serves as head of state of Bosnia and Herzegovina. The three Members: one Bosniac and one Croat, each directly elected from the territory of the Federation, and one Serb directly elected from the territory of the RepublikaSrpska.

386Armenia Constitution, art 155.

387Denmark Constitution, art 55.

388Germany Constitution, art 65.

389Israel Basic Law: The Military, art 3.

390Lesotho Constitution, art 145.

391The United Arab Emirates Constitution, art 138.

392Against England in 1812, Mexico in 1846, Spain in 1898, Germany and Austria-Hungary in 1917, and Japan and Germany at the start of World War II.

393See https://en.wikipedia.org/wiki/List_of_wars_involving_the_United_States.

Conflicts of Interest

The authors declare no conflicts of interest.

Cite this paper

Zhu, Y. (2018) War Powers Clauses: A Globally Comparative Perspective Based on 191 Constitutions. Beijing Law Review, 9, 600-622. doi: 10.4236/blr.2018.95035.

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