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Max Planck Encyclopedia of Public International Law [MPEPIL]

Democracy, Right to, International Protection

Gregory H Fox

Subject(s):
Democracy — Civil and political rights — Self-determination

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Introduction

Political democracy has been an increasingly central concern of international organizations and international law since the end of the Cold War (1947–91). Some regional organizations, such as the Council of Europe (COE) and the Organization of American States (OAS), had proclaimed democracy as a goal prior to the early 1990s. But the East–West divide, with its profound disagreement over notions of governmental legitimacy, precluded any international legal commitment to ‘democracy,’ as there was no agreement on either its desirability or its precise meaning. Global human rights treaties drafted prior to 1989 were similarly silent on the issue, guaranteeing rights that many viewed as constituent elements of democracy but not a right to democracy itself.

A variety of factors at the end of the Cold War led much of the international community to abandon this reticence. First and most obvious was the spread of democratic politics to Eastern Europe, Latin America, parts of South-East Asia and parts of Africa. The enthusiasm for political change at the national level led to changes at the international level. Second, international organizations became deeply involved in ending civil wars and reconstructing post-conflict States (see also Transitional Justice in Post-Conflict Situations). In almost every case the reconstruction efforts sought to install democratic institutions as a means of preventing renewed conflict. Third, States increasingly requested that international organizations monitor their elections and judge the processes against emerging international standards (see also Election Monitoring, International; Elections, Right to Participate in, International Protection). Finally, political democracy has come to be seen as indispensable to the broader protection of human rights.

As detailed below, international organizations now engage in a broad range of activities aimed at promoting democracy. What precisely qualifies as the democracy being promoted raises the complex question of how democracy is to be defined. Most definitions in political theory—and certainly most of the State practice described below—centre on elections. But this narrow conception of democracy has been unacceptable to many international actors, who have added to elections sometimes extensive lists of individual and group rights that are deemed essential to democratic governance. When international actors have, on infrequent occasions, elaborated full definitions of democracy, they have usually opted for the latter ‘substantive’ conception. But in practice—that is, when demanding compliance with political rights in particular situations—international actors have adhered more closely to a purely electoral conception of democracy.

Has this practice coalesced into a ‘right’ to democratic governance? For three principal reasons the answer must remain uncertain. First, there are relatively few instances in which democracy has been described explicitly as a right. None of the major human rights treaties protect democracy as such. The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) ([signed 4 November 1950, entered into force 3 September 1953] 213 UNTS 221; ‘ECHR’), for example, while declaring support in para. 4 of its preamble for ‘an effective political democracy’, does not contain a right to democracy. Indeed, a comprehensive review of the COE’s efforts at democracy promotion concludes that in European practice ‘democracy is not a settled idea or set of institutions…. Rather than conceive of democracy as one form of best practice, or even as an ideal type to which imperfect political systems strive, it is necessary to see democracy as a complex of values and principles which interact in different ways in various contexts’ (Developing Democracy in Europe 13). The United Nations Commission on Human Rights (‘UNCHR’; United Nations Commission on Human Rights/United Nations Human Rights Council) adopted a series of resolutions between 1999 and 2005 on the importance of democracy, but only the first speaks of a ‘right’ to democracy. And while that resolution is entitled ‘Promotion of the Right to Democracy’, the ‘right’ is mentioned nowhere in the text. Art. 1 Inter-American Democratic Charter, adopted by the OAS in 2001, declares that ‘[t]he peoples of the Americas have a right to democracy and their governments have an obligation to promote and defend it’. Art. 1 Universal Declaration on Democracy of the Inter-Parliamentary Union (Inter-Parliamentary Union [IPU]) describes democracy as ‘a basic right of citizenship’. Para. 4 Harare Commonwealth Declaration ([20 October 1991] in Commonwealth Secretariat Report of the Commonwealth Secretary-General 1993 [Commonwealth Secretariat London 1993] 104) proclaims the ‘individual’s inalienable right to participate by means of free and democratic political processes in framing the society in which he or she lives’.

More common are statements by international bodies that strongly affirm democracy’s importance but lack clear indications of whether the statements are lex lata, de lege ferenda or mere political aspirations. For example, para. 8 Vienna Declaration and Programme of Action (‘UN World Conference on Human Rights’ [25 June 1993] UN Doc A/CONF.157/23) stated that ‘the international community should support the strengthening and promoting of democracy, development and respect for human rights and fundamental freedoms in the entire world’ (Vienna World Conference on Human Rights [1993]). The Conference on Security and Cooperation in Europe (‘CSCE’), in its ‘Document of the Moscow Meeting of the Conference on the Human Dimension of the CSCE’ [done 3 October 1991] [1991] 30 ILM 1670; ‘Moscow Document’), ‘emphasize[d] that issues relating to human rights, fundamental freedoms, democracy and the rule of law are of international concern, as respect for these rights and freedoms constitutes one of the foundations of the international order’ (at para. I 1). In the Case of the United Communist Party of Turkey v Turkey ([ECtHR] Reports 1998-I 1), the European Court of Human Rights (ECtHR) declared that ‘democracy is without doubt a fundamental feature of the European public order’ (at para. 45). A group of 106 States meeting in June 2000 at a gathering called ‘Towards a Community of Democracies’ spoke of ‘the universality of democratic values’ (at 1) and declared their ‘determination to work together to promote and strengthen democracy’ (at 3). And the UN Secretary-General (United Nations, Secretary-General) in his 2006 Report on the Work of the Organization (United Nations General Assembly [‘UNGA’] ‘Report of the Secretary-General on the Work of the Organization’ [16 August 2006] GAOR 61st Session Supp 1 ; United Nations, General Assembly), repeating the supportive language used in earlier versions of the same document, declared the ‘substantial progress for democratic governance’ in the previous decade symbolized ‘important gains in human rights, freedom and choice’ (at para. 125). One may only infer normative value from these statements.

A second reason for uncertainty over the existence of a right to democracy, detailed below in paras 7–11, is a lack of clarity over the purported right’s content. International law has not embraced a single definition of democracy. The traditional elements of customary international law cannot be easily fulfilled if one is not clear on precisely what practice and opinio iuris count toward establishing a democratic norm.

A third reason is the deep intrusion into traditional notions of domestic jurisdiction represented by a right to democracy. The idea that State governmental structures are matters of reserved domestic jurisdiction is often articulated as a matter of State juridical equality (see also Jurisdiction of States; States, Sovereign Equality). In the Declaration on Principles of International Law concerning Friendly Relations and cooperation among States in Accordance with the Charter of the United Nations (UNGA Res 2625 [XXV] [24 October 1970] GAOR 25th Session Supp 28, 121; Friendly Relations Declaration [1970]), for example, the UNGA stated that ‘[e]ach State has the right freely to choose and develop its political, social, economic and cultural systems’ (para. 6 preamble UNGA Res 45/150 [18 December 1990]). Similarly, State autonomy in designing governmental institutions is described as an aspect of self-determination. In both cases, the suggestion is that a legitimate diversity of national political systems is a predictable and protected consequence of the autonomy enjoyed by each sovereign State. The International Court of Justice (ICJ) appeared to adopt this view in the Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v United States of America) (Merits) ([1986] ICJ Rep 14; ‘Nicaragua Case’), where the United States of America argued that Nicaragua had breached international commitments to hold free elections and enact other democratic reforms. The ICJ described these matters as questions of domestic policy, which fall within a State’s ‘exclusive jurisdiction, provided of course that it does not violate any obligation of international law. Every State possesses a fundamental right to choose and implement its own political, economic and social systems’ (at para. 258; see also Domaine réservé). Echoing this sentiment, the UNGA has regularly passed resolutions since the early 1990s affirming ‘the right of peoples to determine methods and to establish institutions regarding electoral processes’ (UNGA Res 60/164 [16 December 2005]). Similarly, many of the pronouncements by international organizations cited above caution that assistance with international democracy must be based on the consent of the target State and that an organization’s democratic initiative should not be taken as infringing the principle of State equality. A ‘right’ to democracy would imply that States had relinquished their capacity to consent to at least international condemnation of anti-democratic practices and perhaps even to affirmative measures to promote democracy. There is little evidence that a majority of States have gone this far.

B.  Democracy Defined

Two competing definitions of democracy are evident in international legal materials: one is procedural and the other substantive. The procedural view focuses on elections and associated rights of political participation. Mirroring arguments of political theory, the procedural view regards popular input into the selection of leaders and, by extension, the formation of government policies, as the essential distinction between democracy and other theories of political authority. In Joseph Schumpeter’s classic formulation, democracy is that ‘institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people’s vote’ (Schumpeter 269). The Human Rights Committee, in General Comment 25, takes a procedural perspective by describing the right to political participation as lying ‘at the core of democratic government based on the consent of the people’ (at para. 1). In this view, democracy concerns the way in which a government is chosen, primarily through elections, and does not involve other human rights that protect citizens against forms of governmental overreaching. This separation of democracy on the one hand and human rights on the other seemingly mirrors the distinction in American constitutional theory between ‘majoritarian’ and ‘counter-majoritarian’ rights. The disjunctive nature of the procedural definition is exemplified by the Vienna Declaration and Programme of Action, which supports ‘the strengthening and promoting of democracy, development and human rights’ (at para. 8; emphasis added) and by the Secretary-General’s broad exposition of UN reform proposals, In Larger Freedom (Report of the Secretary-General ‘In Larger Freedom’ [2005] UN Doc A/59/2005), in which democracy and human rights are discussed as entirely distinct ideas. Indeed, until changed in 2006, the Secretary-General’s Annual Reports on the Work of the Organization regularly categorized elections as a means of achieving peace and security rather than as a part of the international legal order and human rights. In addition, many post-conflict reconstruction missions created by the UN Security Council (‘UNSC’) United Nations, Security Council) have established separate units for human rights and elections.

Free and fair elections, lying at the heart of the procedural view, are protected by all comprehensive human rights treaties: Art. 25 International Covenant on Civil and Political Rights ([adopted 19 December 1966, entered into force 23 March 1976] 999 UNTS 171; ‘ICCPR’; International Covenant on Civil and Political Rights [1966]); Art. 3 Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms ([signed 20 March 1952, entered into force 18 May 1954] CETS No 9); Art. 23 American Convention on Human Rights (‘Pact of San José, Costa Rica’ [signed 22 November 1969, entered into force 18 July 1978] 1144 UNTS 123; American Convention on Human Rights [1969]); and Art 13 (1) African Charter on Human and Peoples’ Rights ([adopted 27 June 1981, entered into force 21 October 1986] 1520 UNTS 217 [Banjul Charter]; African Charter on Human and Peoples’ Rights [1981]). The human rights bodies created by these treaties have developed an extensive jurisprudence elaborating the minimum standards of procedural fairness required in national elections (Fox [1992] 552–70; see also Human Rights, Treaty Bodies). External monitoring of elections is now ubiquitous, conducted by an array of international organizations and non-governmental organizations. The degree of external electoral supervision has been most striking in regions undergoing democratic transition. Between 1987 and 2002, 87% of national elections in Eastern and Central Europe were monitored by international observers, as were 89% in Sub-Saharan Africa, 88% in Latin America and the Caribbean, and 77% in the Asia/Pacific region (Bjornlund 44–45). Overall during this period, ‘observers were present for 86 percent of the national elections in ninety-five newly democratic or semi-authoritarian countries’ (Bjornlund 43). Election monitoring may be seen as an ongoing effort to implement treaty-based electoral rights. As stated in a set of principles adopted by a group of organizations involved in democracy promotion, including the UN: ‘International election observation, which focuses on civil and political rights, is part of international human rights monitoring…. It assesses election processes in accordance with international principles for genuine democratic elections and domestic law, while recognizing that it is the people of a country who ultimately determine credibility and legitimacy of an election process’ (Declaration of Principles for International Election Observation and Code of Conduct for International Election Observers 1; Election, Monitoring, International).

10  In contrast to the procedural view, the substantive view regards human rights and democracy as virtually intertwined. Substantive democracy is understood by reference to a series of rights and social goods said to be interrelated and mutually reinforcing. Political participation and government accountability, the central features of the procedural view, are seen as impossible to achieve without a robust protection of other rights. As one participant in an expert seminar convened by the UNCHR opined in 2005: ‘in a practical sense, democracy, rule of law and respect for human rights were indivisible and interdependent because democracy without human rights and the rule of law was oppression, human rights without democracy and rule of law was anarchy, and rule of law without democracy and human rights was tyranny’ (Report of the 2nd Expert Seminar [Democracy and the Rule of Law] para. 8; see also Rule of Law). Substantive conceptions, such as that contained in UNGA Resolution 55/96 of 4 December 2000 on ‘Promoting and Consolidating Democracy’, often rely on long laundry lists of protected rights and entitlements that range across the spectrum of social activity. The UN Democracy Fund, for example, describes democracy as consisting of nine ‘distinctive, but wholly inter-related components’, which include human rights, constitutional design, parliamentary processes, rule of law and accountability and transparency (‘Situating the UN Democracy Fund’). Because substantive conceptions are multifaceted, they cannot easily be described as serving one particular political end, such as maximizing popular participation in politics. Instead, substantive democracy is said to embody all the benefits of a society that is tolerant, pluralistic, and participatory. Susan Marks has aptly summarized the remarkable breadth of theoretical perspectives captured by the substantive view:

According to some political theorists, democracy entails not just the right to participate in the selection of national government, but also the right to participate directly in the decision-making affecting one. For other theorists, democracy involves not just the process of selecting governments but also the process of connecting people with their governments through civil society. Still other theorists emphasize that democracy requires not just the right to vote and stand for election and associated civil liberties, but also the whole range of further rights that actually enable participation in public life on a footing of equality. (at 558)

11  The substantive view is best exemplified in the UNCHR’s 1999 resolution ‘Promotion of the Right to Democracy’. The UNCHR described the right of democratic governance as including the following:

  1. (i)  The rights to freedom of opinion and expression, of thought, conscience and religion, and of peaceful association and assembly;

  2. (ii)  The right to freedom to seek, receive and impart information and ideas through any media;

  3. (iii)  The rule of law, including legal protection of citizens’ rights, interests and personal security, and fairness in the administration of justice and independence of the judiciary;

  4. (iv)  The right of universal and equal suffrage, as well as free voting procedures and periodic and free elections;

  5. (v)  The right of political participation, including equal opportunity for all citizens to become Candidates;

  6. (vi)  Transparent and accountable government institutions;

  7. (vii)  The right of citizens to choose their governmental system through constitutional or other democratic means;

  8. (viii)  The right to equal access to public service in one’s own country.

12  Neither the substantive nor the procedural understanding has gained ascendance. This lack of a clear legal definition is in part due to the decentralized way in which democracy issues have been addressed. Not only are multiple international organizations involved in democracy promotion, but democratic initiatives lack an agreed doctrinal home. As noted, none of the major human rights instruments addresses democracy as such. An alternative approach would be to view democracy promotion as an issue of peace and security, as the Secretary-General has done in his annual reports, since the greatest commitment of international resources to democratization has come in post-conflict reconstruction missions. The preamble to the ECHR may be seen as reflecting this view: ‘justice and peace in the world…are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend’ (para. 4 preamble ECHR). The ‘democratic peace’ thesis (see para. 34 below), positing a connection between democratic governance and a State’s propensity to go to war, might provide empirical support for this view. But justifying democracy primarily on security grounds is not an approach that is widely shared, as international organizations generally emphasize other goals for their democracy initiatives. Without a clear foundation in human rights, peace and security or another legal niche, a clear and widely-shared understanding of democracy has not emerged.

13  A host of difficult—and as yet, unanswered—questions raised by the procedural and substantive views may also contribute to the lack of clarity. The procedural view, focusing primarily on elections, fails to explain whether an elected government that systematically denies human rights thereby loses its democratic status. The question is particularly acute where a political party stands for election on a platform that explicitly calls for human rights violations. If such a party receives an electoral mandate, are its subsequent actions simply irrelevant to democracy in the State? Another question concerns the usefulness in law of ‘substantive’ democracy. The substantive view regards democracy as an aggregation of human rights protections, with an emphasis on politics. What, then, does the term add to existing international law? If each of the constituent rights is already protected by treaty and customary norms, is democracy merely an analytical category as opposed to a legally significant entitlement in its own right?

C.  Measures to Ensure Democracy

1.  Democracy and Regime Legitimacy

14  Both the substantive and procedural conceptions of democracy rest, at bottom, on a theory of popular sovereignty. Art. 21 Universal Declaration of Human Rights, widely cited as the progenitor of democratic rights in human rights law, describes this theoretical foundation succinctly: ‘The will of the people shall be the basis of the authority of government’. A democratic norm thus posits a principle of regime legitimacy strikingly absent from other human rights formulations. Uniquely among human rights, a right to democratic government is linked to the exercise of power on behalf of a State, a matter traditionally left to political considerations or to the qualitatively neutral ‘effective control’ doctrine. The Secretary-General seemingly accepted this legitimizing function of democracy in An Agenda for Democratization, where he contrasted social dynamics in democratic and non-democratic States:

Because democratic Governments are freely chosen by their citizens and held accountable through periodic and genuine elections and other mechanisms, they are…less likely to abuse their power against the peoples of their own State territories. Democracy within States thus fosters the evolution of the social contract upon which lasting peace can be built. (para. 17)

He further stated that,

[l]acking the legitimacy or real support offered by free elections, authoritarian Governments all too often have recourse to intimidation and violence in order to suppress internal dissent. (para. 19)

2.  Practice of International Organizations

15  Building on the principle of democratic legitimacy, a number of international organizations have created mechanisms both to promote democratic institutions and to respond to interruptions of democratic governance in their Member States. In UNGA Resolution 55/96 of 4 December 2000 on ‘Promoting and Consolidating Democracy’ the UNGA welcomed many of these measures.

(a)  United Nations

16  The Secretary-General has stated, with little exaggeration, ‘the United Nations does more than any other single organization to promote and strengthen democratic institutions and practices around the world’ (In Larger Freedom para. 151). In An Agenda for Democratization, the Secretary-General described ‘an emerging global consensus on democracy itself’ that was being ‘translated into international norms, agreements and specific commitments…and [was] supported by the United Nations and others through operational activities’ (para. 56). UN’s democracy promotion can be divided into four categories. First, the UN provides electoral assistance to many States through the Electoral Assistance Division of the Department of Political Affairs. The first request for assistance came in 1989. As of August 2007, ‘the United Nations had received 406 requests for electoral assistance. During the reporting period, the United Nations provided electoral assistance to 43 Member States. In 10 cases, assistance was based on a UNSC mandate’ (Strengthening the Role of the United Nations in Enhancing the Effectiveness of the Principle of Periodic and Genuine Elections and the Promotion of Democratization para. 3). In addition to the Electoral Assistance Division, the United Nations Development Programme (UNDP) co-ordinates 40 to 50 of its own electoral-based projects per year (ibid 9). That electoral assistance is now an accepted part of UN practice is evident, as the Secretary-General has noted, in the fact that ‘there has never been an objection regarding interference in the internal affairs of a Member State’ (ibid 2).

17  Second, as part of its reconstruction activities in post-conflict States, the UN regularly helps create and strengthen democratic institutions. From 1988 to 2006 the UN launched 24 post-conflict missions, almost all of which had a component relating to the promotion of democracy (Fox [2008] 47–48). Democratic politics is seen as an essential counter to the exclusionary policies thought to have precipitated the conflicts in the first place. Secretary-General Kofi Annan wrote in 2002, ‘[a]t the center of virtually every civil war is the issue of the state and its power—who controls it, and how it is used. No armed conflict can be resolved without responding to these questions. Nowadays, the answers almost always have to be democratic ones, at least in form’ (at 137; see also Armed Conflict, International; Armed Conflict, Non-International).

18  In three cases— Kosovo, East Timor, and Eastern Slavonia—the UN administered post-conflict territories directly (International Administration of Territories). Although the UN did not administer Bosnia, the UNSC approved the General Framework Agreement for Peace in Bosnia and Herzegovina (UNGA ‘General Framework Agreement for Peace in Bosnia and Herzegovina’ in ‘Letter dated 29 November 1995 from the Permanent Representative of the United States of America to the United Nations addressed to the Secretary-General’ [30 November 1995] UN Doc A/50/790–S/1995/999; ‘Dayton Accords’), thereby establishing the international regime, and UN actors were involved in many aspects of its implementation. Democratization was a central goal in each case of international administration. In the case of Bosnia, the Constitution of Bosnia and Herzegovina that was included as an annex to the Dayton Accords and approved in UNSC Resolution 1031 of 15 December 1995, stated in Art. 2 (2) that ‘Bosnia and Herzegovina shall be a democratic state, which shall operate under the rule of law and with free and democratic elections’ (Constitution of Bosnia and Herzegovina [Annex 4 to General Framework Agreement for Peace in Bosnia and Herzegovina signed and entered into force 14 December 1995] [1996] 35 ILM 117 reprinted in GH Flanz [ed] Constitutions of the Countries of the World: A Series of Updated Texts, Constitutional Chronologies and Annotated Bibliographies [Oceana Dobbs Ferry] vol 3 [at 2000-2] 1–14). While there has been much debate about the effectiveness of the international administration, as of the time of writing the UNSC has not altered its expectation of a full democratic transition in Bosnia. In a November 2007 resolution the UNSC restated ‘the importance of Bosnia and Herzegovina’s transition to a functional, reform-oriented, modern and democratic European country’ (para. 11 preamble UNSC Res 1785 [21 November 2007]).

19  The second case of international administration was in the Eastern Slavonia region of Croatia. Neither the Croatia-Local Serbian Community: Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium ([done 12 November 1995, entered into force 15 January 1996] [1996] 35 ILM 184; ‘Erdut Agreement’) proposing the international administration nor UNSC Res 1037 of 15 January 1996 authorizing the mission mentioned democracy as a goal of the administration. Both, however, called for the supervision of elections in the territory and respect for the highest standards of human rights and fundamental freedoms. Both these goals, as discussed above, are central components of most international legal definitions of democracy.

20  In the third administration in Kosovo, the UNSC directed that the transitional regime oversee ‘the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo’ (para. 10 UNSC Res 1244 [10 June 1999]). In his report describing the structure of the United Nations Interim Administration Mission in Kosovo (‘UNMIK’), the Secretary-General listed democratization and institution-building as one of its central components, stating that ‘UNMIK will develop an integrated approach to the strengthening of governance structures through the training of government officials and executive and administrative officers in procedures of democratic governance’ (UNSC ‘Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo’ [12 July 1999] UN Doc S/1999/779 para. 81). Interestingly, the Secretary-General described UNMIK’s mandates for democratization and human rights in disjunctive terms—UNMIK was to promote ‘democracy, good governance and respect for human rights’—suggesting a preference for the procedural rather than the substantive conception of democracy (ibid 79; emphasis added).

21  In the final administration in East Timor, the UNSC instructed the United Nations Transitional Administration in East Timor (‘UNTAET’) mission to co-operate closely with the Timorese ‘with a view to the development of local democratic institutions, including an independent East Timorese human rights institution’ (para. 8 UNSC Res 1272 [25 October 1999]). The Secretary-General noted that ‘when UNTAET was established, there was no history of open and democratic political activity in East Timor’ (para. 4 UNSC, ‘Report of the Secretary-General on the United Nations Transitional Administration in East Timor [for the period 27 January–26 July 2000]’ [26 July 2000] UN Doc S/2000/738). Thus, the governance component of the mission engaged in a wide variety of institution-building and public administration functions designed to create a democratic infrastructure. These included supervising elections that put in place the first post-independence government.

22  The third aspect of UN democracy promotion is rule of law initiatives in post-conflict States and elsewhere. These have included: assistance in the design and drafting of constitutions; brokering power-sharing arrangements in divided societies, including the creation of minority-protection regimes (see also Minorities, International Protection); reform of criminal codes and judicial systems; and devising means of assessing accountability for past atrocities. The substantive conception of democracy would view these efforts as central to democratic consolidation.

23  Fourth, the UN has consistently linked democratic politics to conflict resolution, most frequently in post-conflict States. The UNSC and the Secretary-General have observed that internal conflicts are often the result of exclusionary and discriminatory politics. In order to avoid a return to conflict, politics must be transformed into an inclusive and tolerant process, in which all parties can be confident that their views will be reflected. As the Secretary-General asserted in UNGA ‘An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-Keeping: Report of the Secretary-General Pursuant to the Statement Adopted by the Summit Meeting of the Security Council on 31 January 1992’ ([17 June 1992] UN Doc A/47/277–S/2411): ‘There is an obvious connection between democratic practices—such as the rule of law and transparency in decision-making—and the achievement of true stability and security in any new and stable political order’ (at para. 59). In the case of Mozambique, to take one example, the UNSC urged the parties to base reconciliation ‘on a system of multi-party democracy and the observance of democratic principles which will ensure lasting peace and political stability’ (para. 5 UNSC Res 960 [1994] [21 November 1994]). In two cases—Haiti in 1994 (Haiti, Conflict) and Sierra Leone in 1998—the UNSC approved the use of force to return elected leaders to power after they had been forcibly removed from office. Here, the failure of democratic institutions was itself seen as a threat to the peace (Peace, Threat to). While these cases remain sui generis—the UNSC has not since described the ousting of an elected regime as a ‘threat to the peace’ under Art. 39 Charter of the United Nations (‘UN Charter’) United Nations Charter)—the link between democratic continuity and internal stability has endured as a constant in UNSC practice.

(b)  European Union

24  Art. 6 (1) Treaty on European Union (Consolidated Version of the Treaty on European Union [signed 16 April 2003, entered into force 1 May 2004] [2006] OJ 321 E/5; ‘TEU’) states that ‘[t]he Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States’ (European Union, Historical Evolution). Art. 49 TEU provides that only States adhering to the principles contained in Art. 6 (1) TEU are eligible for membership. Decisions on new membership are made by reference to the 1993 ‘Copenhagen criteria’, which include stable institutions for guaranteeing democracy, the rule of law, human rights, the protection of minority rights, a functioning market economy and an administration capable of taking on the obligations of membership (see also International Organizations or Institutions, Membership).

25  Art. 7 TEU provides mechanisms to address breaches of Art. 6 (1) TEU. Either the European Commission or one third of Member States may make a request to establish the existence of a breach. A breach will only be found upon a unanimous vote by the Heads of State or Government or a four-fifths majority in the European Council. If a State is found to be in breach of democratic principles, it will be suspended, sanctions will be imposed, and voting rights will be revoked (see also International Organizations or Institutions, Voting Rules and Procedures). None of these measures, however, has ever been taken. The EU Member States, acting in their individual capacities, did impose diplomatic sanctions on Austria in January 1999, following parliamentary elections in which the far-right Freedom Party won enough seats to be included in a coalition government. A condemnatory resolution passed by the European Parliament suggested that racist and xenophobic statements made by the Freedom Party’s leader were inconsistent with the democracy criterion in Art. 6 TEU—the resolution refers to ‘European democratic values’ (para. D European Parliament Resolution on the Result of the Legislative Elections in Austria and the Proposal to Form a Coalition Government between the ÖVP [Austrian People’s Party] and the FPÖ [Austrian Freedom Party])—but did not distinguish between considerations of democracy, human rights, and liberty, all mentioned in Art. 6 TEU.

(c)  Organization for Security and Co-operation in Europe

26  There are no formal criteria for admission to membership of the Organization for Security and Co-operation in Europe (OSCE). However, the Charter of Paris for a New Europe and Supplementary Document to Give Effect to Certain Provisions of the Charter ([done 21 November 1990] [1991] 30 ILM 190) and the 1990 Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE ([done 29 June 1990] [1990] 29 ILM 1305; both promulgated by its predecessor, the CSCE) express broad support for democratic institutions and principles. In the Charter of Paris for a New Europe, Member States agreed to ‘undertake to build, consolidate and strengthen democracy as the only system of government of our nations’ (at Human Rights, Democracy and Rule of Law). Following the 1991 attempted coup in the Soviet Union, CSCE Member States pledged in the Moscow Document that they would:

support vigorously, in accordance with the Charter of the United Nations, in case of overthrow or attempted overthrow of a legitimately elected government of a participating State by undemocratic means, the legitimate organs of that State upholding human rights, democracy and the rule of law, recognizing their common commitment to countering any attempt to curb these basic values. (at para. II 17.2)

27  The OSCE’s Office for Democratic Institutions and Human Rights (‘ODIHR’) is responsible for activities relating to democracy promotion. Through its Office for Democratic Institutions and Human Rights—whose forerunner was called Office for Free Elections—the ODIHR observes, assists in, and sometimes supervises elections. The OSCE also has other assistance projects, designed to develop democratic structures and promote the rule of law, civil society, democratic election processes, and gender equality.

(d)  Organization of American States

28  OAS documents are replete with commitments to maintaining and strengthening democracy. As noted above, the OAS is the only regional organization to proclaim democracy an internationally guaranteed right. To secure this right, the OAS has dispatched numerous election monitoring missions to Member States. But its most notable contribution to democratic norms may be a series of instruments addressing extra-constitutional events in Member States. First, OAS Resolution 1080 of 5 June 1991 (‘OAS Resolution 1080’) provided that in the case of a ‘sudden or irregular interruption of the democratic political institutional process or of the legitimate exercise of power by the democratically elected government in any of the Organization’s member states’ an emergency meeting of OAS organs could be convened (at para. 1). No course of action, however, was prescribed. Second, in 1992 the Protocol of Amendments to the Charter of the Organization of American States ([done 14 December 1992, entered into force 25 September 1997] [1994] 33 ILM 1005; ‘Protocol of Washington’) amended Art. 9 Charter of the Organization of American States ([signed 30 April 1948, entered into force 13 December 1951] 119 UNTS 3; ‘OAS Charter’) to provide for the suspension of any Member State ‘whose democratically constituted government has been overthrown by force’. Art. 9 OAS Charter thus moved beyond OAS Resolution 1080 in providing for a specific sanction, but its application only to the forceful overthrow of governments arguably limited its application to a subset of the anti-democratic events covered by OAS Resolution 1080. Third, the Inter-American Democratic Charter of 2001 broadened Art. 9 OAS Charter’s application by providing for the suspension of a Member State upon ‘an unconstitutional alteration of the constitutional regime that seriously impairs the democratic order’ (at para. 3 preamble Inter-American Democratic Charter). Art. 17 Inter-American Democratic Charter also broke new ground by providing for OAS mediation when ‘the government of a member State considers that its democratic political institutional process or its legitimate exercise of power is at risk’.

29  These instruments have been invoked regularly, if inconsistently. OAS Resolution 1080 has been utilized on four different occasions: in Haiti in 1991, in Peru in 1992, in Guatemala in 1993, and in Paraguay in 1996. The Inter-American Democratic Charter has been invoked only once—in the case of the Venezuelan coup in 2002. There have been two requests for mediation under Art. 17 Inter-American Democratic Charter: in Ecuador in 2004 and Nicaragua in 2005. One study concludes that the OAS ‘has tended to use these instruments only for the most extreme cases of democratic interruption, such as coups and autogolpes, and never directly in relation to violations of electoral or constitutional procedures’ (Leglar Lean and Boniface 58).

(e)  African Union

30  Art. 3 (g) Constitutive Act of the African Union ([done 11 July 2000, entered into force 26 May 2001] 2158 UNTS 3; ‘AU Constitutive Act’) provides that one of the African Union (AU)’s objectives is to ‘promote democratic principles and institutions, popular participation and good governance’. Following on from the OAS mechanisms, Art. 30 AU Constitutive Act provides that ‘governments which shall come to power through unconstitutional means shall not be allowed to participate in the activities of the Union’. Art. 30 AU Constitutive Act notably is not limited to ‘anti-democratic’ actions and might therefore even apply in cases where a repressive government is overthrown by pro-democratic forces in a manner not provided for in the AU Constitutive Act. But the AU’s limited practice in this area suggests that Art. 30 AU Constitutive Act was intended to target interruptions of democratic governance. On several occasions, regimes coming to power through military coups have not been recognized at AU—and its predecessor, the Organization of African Unity—events.

(f)  The Commonwealth

31  In 1971 members of the Commonwealth declared in The Declaration of Commonwealth Principles ([signed 22 January 1971] [1997] The Commonwealth Yearbook 43; ‘Singapore Declaration’) that:

We believe in the liberty of the individual … and in the inalienable right to participate by means of free and democratic political processes in framing the society in which they live. We therefore strive to promote in each of our countries those representative institutions and guarantees for personal freedom under the law that are our common heritage. (at para. 6)

The 1991 Harare Commonwealth Declaration expanded the principles of the Singapore Declaration to focus on the necessity for governments to obtain democratic mandates. The 1995 Millbrook Commonwealth Action Program on the Harare Declaration (Heads of Government of Millbrook: ‘Milbrook Commonwealth Action Plan on the Harare Declaration’ [12 November 1995]) created mechanisms to support and enforce democratic principles. Art. 3 Millbrook Commonwealth Action Program on the Harare Declaration established a seven-step protocol for action in the event of an unconstitutional overthrow of a democratically elected government. The process may culminate in a State’s exclusion from all Commonwealth meetings.

32  Several Commonwealth countries have had their membership suspended for undemocratic acts. South Africa withdrew from 1984 to 1994 after repeated clashes over its apartheid policies. From 1987 to 1997, Fiji’s membership in administrative councils was allowed to lapse after a military coup. Nigeria’s membership was suspended from 1995 to 1999 after repeated violations of the Harare principles. Fiji was suspended from 2000 to 2001 after a military coup. Pakistan was suspended from 1994 to 2000 following a coup. And Zimbabwe’s membership was suspended from 2002 to 2003 for violations of the Harare principles.

(g)  MERCOSUR

33  In 1996, the four MERCOSUR members—and two associate members—adopted the Presidential Declaration on Commitment to Democracy in Mercosur (‘Ushuaia Declaration’), which commits its members to apply joint sanctions against any ‘breach or threat of a breach of the democratic order’ (Para. 3 Ushuaia Declaration). The sanctions may include suspension from participation in MERCOSUR organs. The Ushuaia Declaration also made the ‘full implementation’ of democratic institutions a requirement for entrance into MERCOSUR (Para. 1 Ushuaia Declaration). The Ushuaia Declaration was invoked within hours of an attempted military coup in Paraguay in 1996 and the resulting pressure is credited with having thwarted anti-democratic forces.

D.  The Relationship between Democracy and International Peace

34  One of the most widely debated postulates in international relations theory is the so-called ‘democratic peace’ thesis (see also International Relations, Principal Theories): the proposition that democratic States do not go to war with each other. The democratic peace idea is said to originate in Immanuel Kant’s 1795 essay Perpetual Peace: a Philosophical Proposal. Some international actors have cited the democratic peace idea as justification for initiatives aimed at democracy promotion. For example, the link between the two was widely cited at the Sixth International Conference of New or Restored Democracies in 2006. In the 1991 Moscow Document, the CSCE States declared that ‘full respect for human rights and fundamental freedoms and the development of societies based on pluralistic democracy and the rule of law are prerequisites for a lasting order of peace, security, justice and cooperation in Europe’ (at para. 6 preamble). The 2003 EU security strategy report asserts that ‘[t]he quality of international society depends on the quality of the governments that are its foundation. The best protection for our security is a world of well-governed democratic states’ (EU ‘A Secure Europe in a Better World: European Security Strategy’ [12 December 2003] 10). And in para. 18 An Agenda for Democratization, the Secretary-General argued that the mutually shared values of democratic States may diminish the chance of conflict:

The legitimacy conferred upon democratically elected Governments commands the respect of the peoples of other democratic States and fosters expectations of negotiation, compromise and the rule of law in international relations. When States sharing a culture of democracy are involved in a dispute, the transparency of their regimes may help to prevent accidents, avoid reactions based on emotion or fear and reduce the likelihood of surprise attack.

E.  Assessment

35  Despite the substantial practice reviewed above, two principal constraints have limited the emergence of a right to democracy in customary or conventional law. The first is the definitional debate over the content of the right. The strongest claim is for a procedural understanding of democracy that is limited to free and fair elections and associated rights of political participation. Electoral rights are widely protected in human rights treaties and have given rise to a significant body of State practice that both seeks to verify electoral fairness through external monitoring and attaches significant penalties to the interruption or degradation of elected regimes. But limiting democracy to electoral rights is widely criticized by international organizations. These critics, taking a substantive view, find procedural conceptions of democracy impoverished, as they fail to address the many aspects of a tolerant and pluralist society that all democratic theories seem to promise. Surely a democratic State must protect minorities; ensure equality of races, religions, and genders; as well as provide access to basic means of subsistence. But adding these elements to the definition leads to the laundry-list type of substantive understanding typified by the UNCHR’s 1999 resolution on the Promotion of the Right to Democracy. Such definitions are so broad as to become almost useless as standards of measurement capable of meaningfully evaluating State conduct. Both conceptions of democracy, in other words, have substantial defects that have limited their ascendance into law.

36  The second constraint is the substantial variation among regions in the observance of democracy norms. The norms are strongest in Europe, where three organizations (the European Union, COE, and OSCE) supervise and enforce multiple commitments to democratic governance. In the Americas, the OAS, through the Inter-American Democratic Charter, has helped consolidate reform in a region that had few functional democracies in the midst of the Cold War. MERCOSUR has adopted a similar approach for the Andean subregion. While the AU has reaffirmed and strengthened nascent democracy norms initiated by its predecessor the Organization of African Unity, both practice and an enforcement infrastructure are scant. In Asia, virtually no democracy norms exist. The same is true in the Middle East. This wide spectrum of commitment to democratic governance provides an uncertain foundation for a global norm.

37  These limitations, however, must be balanced against a clear commitment to democratic governance in the UN system. Despite the ongoing definitional debate, the UN consistently—and often emphatically—insists on democratic approaches when governance questions are presented to its organs. Post-conflict reconstruction missions are the longest-standing example. The cases of territorial administration go further, since the organization was crafting political norms and institutions for its own exercise of governmental power, which presumably needed to take account of prevailing international legal standards. This practice has been uniform in prescribing the same set of electoral procedures and human rights guarantees, to the point where Stromseth, Wippman, and Brooks describe multilateral ‘blueprints’ for the reconstruction of post-conflict States (at 85–133). And in a very practical sense, neither the definitional debate nor regional variations in support of democracy norms have been relevant to the UN initiatives. All elements of the minimalist procedural view and the broader substantive view are embodied in UN initiatives, especially in the post-conflict setting. These missions have been dispatched to all regions of the world, though the Middle East is represented only by the UN’s advisory role in post-2003 Iraq (see also Iraq, Occupation after 2003), where the UNSC proclaimed support for a democratic transition and, upon the end of the occupation in June 2004, welcomed ‘a new phase in Iraq’s transition to a democratically elected government’ (para. 1 preamble UNSC Res 1546 [8 June 2004]). This inertia at the global level may, if continued, portend a more uniform practice at the regional level. A much needed legal clarity will be the result.

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