Le transfert du pouvoir constituant originaire à une autorité internationale

Abstract : The transfer of the original constituent power comes when the adoption of a constitution falls under a procedure which moves the constitutional decision-making centre towards an external authority in the State. However in constitutional law, the constituent procedure concerns by nature the expression of the State?s sovereignty. In the same way, in international law, the right of peoples to self determination implies for the constituent people, the freedom in the determination of its political status. Actually, ever since the beginning, the concept of constituent power is completely comparable with the power of the free people. The evolution of the political systems since the 18th century by no means revealed a new definition of the constituent capacity. Moreover, this aptitude is today synonymous with democratic capacity. However, in certain historical circumstances and particular policies (the war, the fulfilment of the right of peoples to self determination, process of democratization), the exercise of the constituent capacity is internationalized. In its most integral form, the internationalization of the original constituent power is based on a procedure that overshadows the irreducible link between the originating constituent capacity and sovereignty. Consequently it?s appropriate, in a general context of challenge of the sovereignty, to wonder about the impact of this practice on the public law. Either the transfer of the original constituent power is the end of the legal system, in which sovereignty represents the angular stone. Either the public law is able to answer the circumstantial need for the internationalization of the original constituent power, while coming within the respect of sovereignty.
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Line Konan. Le transfert du pouvoir constituant originaire à une autorité internationale. Droit. Université Nancy 2, 2007. Français. ⟨NNT : 2007NAN20011⟩. ⟨tel-01777292⟩

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