The ICJ advisory jurisdiction: the "wall" case

 

The advisory jurisdiction is different from the contentious. The most relevant difference is that the Court – any - does not have to solve a problem between two parties. It has to give on opinion about a question. Nonetheless, it has been an option which has had more success in the international legal order.  The application of the advisory function has encountered more problems in the national sphere, the own nature of what is the function of the courts has impede its proper implementation[1]. But a reflection of those difficulties can be traced back in the ICJ. Despite using the advisory function, the Court has used the procedure rules of the contentious process, maintaining the jurisdictional nature of the Tribunal[2]. This can be showed in article 68 of the Court’s statute:

“In the exercise of its advisory functions the Court shall further be guided by the provisions of the present Statute which apply in contentious cases to the extent to which it recognizes them to be applicable”.

But the own particularity of the international legal framework has allowed its development and, because of the Court, it has had an important impact. This is done in a two-step process. The first thing judges have to see is if they have jurisdiction for hearing the case and then, if that is the case, they have to analyze if there are not compelling reasons to not giving the opinion.

The two relevant articles are article 96 of the UN Charter, which allows the General Assembly or the Security Council to request an advisory opinion on any legal question, and to other organs of UN and specialized agencies only if this arise within the scope of their activities, and article 65.1 of the Statute which says that the Court may give an advisory opinion on any legal question.

The purpose of this assignment is to analyze the application of that jurisdiction, paying more attention to the legal nature of the question, in respect with the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory[3] case.

 

2. JURISDICTION

 

In order to give an opinion the Court has to see if there is jurisdiction. There are two requisites: rationae personae, that is, that the organ who requested the opinion was competent to do so and rationae materiae, which means that the judicial organ can only answer those questions of legal character[4].

 

2.1. Rationae Personae

 

The General Assembly, which was the organ who requested the advisory opinion of the Court in Resolution ES-10/13, had the competence to ask for an opinion in the Wall case. As the ICJ stated in the Legality of the Threat or Use Nuclear Weapons case “the General Assembly has competence in any event to seize the Court. Indeed, Article 10 of the Charter has conferred upon the General Assembly a competence relating to ‘any questions or any matters’ within the scope of the Charter”[5]. The Court would repeat the same in the Wall case, namely, that the construction of the wall in the Occupied Palestinian Territory was considered a threat to international peace and security, which is part of the General Assembly’s functions according to article 11 of the Charter[6]. The Court also concluded, despite the contentions, that it did not exceed its competence because of requiring an opinion and in spite of the fact that the Security Council was also treating the issue[7].

 

2.2. Rationae Materiae

 

Maybe the organ who submitted the question had the competence to do so, but the Court can only answer legal questions otherwise it will not have jurisdiction. It was expressly stated in Certain Expenses case that if “a question is not a legal one, the Court has no discretion in the matter; it must decline to give the opinion requested”[8]. But the terms alone does not help to comprehend what is a legal question. According to Visscher is about any problem susceptible of receive an answer based in law[9], but let’s observe how the Court has treated the matter and in the Wall case.

 

2.2.1 Any legal question?

 

The Court will answer any legal question within the realm of International Law. That is a limitation in accordance with the limits of the system[10].

 

2.2.2 Only Law?

 

As we can observe, the expression any legal question can be interpreted in the sense that excludes any legal question entangled with facts. The problem was solved in the Namibia case. The Court established that “the contingency that there may be factual issues underlying the question posed does not alter its character as a ‘legal question’”[11]. So there is no need for a pure legal one[12].

 

2.2.3 The Abstract Nature of the Question

 

Due to the different nature of the advisory procedure, the Court has answered any type of question it did not matter if it was an abstract one or related to a factual situation[13]. This was one of the issues raised by Israel objecting the Court’s jurisdiction, which rejected it stating its own jurisprudence. The Court said that “to contend that it should not deal with a question couched in abstract terms is a ‘mere affirmation devoid of any justification’ and that ‘the Court may give an advisory opinion on any legal question, abstract or otherwise’”[14].

 

2.2.4 A Political Question

 

Another recurrent argument used by States against the Court’s jurisdiction is that the question posed is political, not a legal one and, therefore, the Court cannot treat it. As a jurisdictional organ and according to its statute can only solve those problems limited in the legal sphere. However, the Court has never rejected a request on these grounds. Quite the contrary, it expressed that “as, in the nature of things, is the case with so many questions which arise in international life, does not suffice to deprive it of its character as a ‘legal question’ and to ‘deprive the Court of a competence expressly conferred on it by its Statute’”[15]. “Whatever its political aspects, the Court cannot refuse to admit the legal character of a question which invites it to discharge an essentially judicial task (…) an assessment of the legality of the possible conduct of States with regard to the obligations imposed upon them by International Law”[16]. This would be the constant attitude of the Court about these allegations, including in the Wall.

We can say then that the Court “regards all questions submitted to it as ‘legal’ regardless of their political implications as long as the requested question can be answered by the application of legal rules”[17].

 

2.2.5 The Clarity of the Question

 

Another requirement about the legal question is that it has to be drafted with enough clarity. Article 65.2 of the Statute clearly states that the written request must contain an exact statement (en términos precisos in spanish) of the question. That is why one of the reasons laid down against the jurisdiction of the Court was as regards the lack of clarity thereof. Despite that the Court rejected the argument[18]. It has been a normal pattern of the jurisdictional organ to reformulate or to ascertain the relevant legal question. Despite the request being, in Judge Kooijmans’ words, “phrased in a way which can be called odd, to put it mildly”[19] there was no reason to dismiss the request in these grounds.

 

We can observe, therefore, that the Court applied correctly the requirements for having jurisdiction. The arguments against it were not strong enough in the light of the previous jurisprudence.

 

3. PROPRIETY REASONS

 

In the Court’s own words:

“When seized of a request for an advisory opinion, the Court must first consider whether it has jurisdiction to give the opinion requested and whether, should the answer be affirmative, there is any reason why it should decline to exercise any such jurisdiction”[20].

That means that after analyzing its own jurisdiction the Court maybe has found that it has it, but that does not mean that there will be automatically a discussion of the request. As article 65.1 points out, the Court may give an opinion, so it leaves up to the organ whether to render a decision or not. Since saying in 1950, in the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, that “Article 65.2 of the Statute is permissive. It gives the Court the power to examine whether the circumstances of the case are of such character as should lead it to decline to answer the request”[21], the Court has maintained the same approach.

As a result, the Court has argued that, because of its “responsibilities as the principal judicial organ of the United Nations (Article 92 of the Charter), the Court should in principle not decline to give an advisory opinion. Only due to compelling reasons could the Court disregard a request[22]. More difficult is to ascertain what those reasons are by which the Court would decide not to render an opinion because until now it has never rejected one. That has not stopped the Court to explain when would that occurred and to States to convince the jurisdictional organ not to continue.

 

3.1 The consent of the parties with regards to an advisory opinion related with the controversy

 

In order to explain it is unavoidable to refer to the Eastern Carelia case, where the PCIJ refused to give an advisory opinion. The relevant paragraph is the following:

“It is well established in international law that no State can, without its consent, be compelled to submit its disputes with other States to submit its disputes with other States either to mediation or to arbitration, or to any other kind of pacific settlement”[23].

States have relied on that paragraph in order to avoid an opinion of the Courts for matter related to disputes between States. The clearest example is the Western Sahara case, and similar to the Wall case. Spain argued that because the Court would give its opinion about an issue that was contentious between Morocco, Mauritania and Spanish itself and because it did not consent to the Court hearing the case. The ICJ would reject the argument stating, quoting the Peace Treaties case that:

“The consent of States, parties to a dispute, is the basis of the Court's jurisdiction in contentious cases. The situation is different in regard to advisory proceedings even where the Request for an Opinion relates to a legal question actually pending between States. The Court's reply is only of an advisory character: as such, it has no binding force. It follows that no State, whether a Member of the United Nations or not, can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take. The Court's Opinion is given not to the States, but to the organ which is entitled to request it”[24].

And that the lack of consent could in some circumstances “constitute a ground for declining to give the opinion requested if, in the circumstances of a given case, considerations of judicial propriety should oblige the Court to refuse an opinion”, especially when the effect would be the circumventing of the consent of the State[25].

Based on that, the Court would reject Israel’s contention, considering that the judicial organ should assistance the General Assembly and that it was not circumventing Israel’s consent. But we could add that here the problem was also that the issue was not between two States, because Palestine is still not one, and therefore not a subject of International Law which would mean that there is a contentious issue as such, due to Palestine’s lack of subjectivity[26].

 

3.2 Lack of Information

 

In this case, the Court might not render an opinion because of the lack of information, which would impede to have all the facts and thus would lead to an invalid decision. This requirement is a subjective one; there is no standard definition that can help to dilucidate if there is enough information. Moreover, this has to be linked with the principle of equality. Because if all parties are not hear that would mean that the Court would only decide by the facts and arguments presented by one party.

This was an important factor in the Wall case. Israel, due to its refusal to collaborate, did not participate in the merits of the case. That is why it was argued that the Court should not continue, it would not have listened to all the parties. As with many other issues raised against the proceedings, the Court rejected it. It considered that it had enough information[27]. Judge Buergenthal was the only judge who considered that there was not enough information. He stated that the lack of information vitiated the Court’s findings on the merits[28].

This can be one of the most debatable issues of the case. We need to bear in mind that if one of the parties do not collaborate or do not participate on the process that would lead to a not very legitimate solution[29]. The fact that all the judges except one supported giving an advisory opinion and thus considering that there was enough information could have helped to avoid the undesirable consequence of having an opinion with a lack of legitimacy.

 

3.3. Usefulness

 

The function of the Court, through the advisory opinions, has been to guide the UN organs in several matters, to clarify a situation in order to take action. That is why it was argued that the Court should not discuss the merits because the General Assembly had already declared that the Wall was illegal and as a result there was no need for assistance. This was rejected on the grounds that it was up to the General Assembly to decide what to do with the findings; it was not the Court’s role to decide that[30]. This reasoning is also a debatable one. If we analyze to past opinions we can observe that the organ which requested the opinion did not prejudice beforehand the merits of the case. A clear example is the Certain Expenses case where the General Assembly requested the opinion of the Court about what was consider part of the budget according to article 17.2; it did not say what the interpretation of the precept was. It left it to the Court. Accordingly, it can be argued that it undermines the reasoning if the organ has decided beforehand about the issue.

 

3.4. Political Influence

 

Another argument usually used in order to convince the Court that it should its discretionary power and not rendering an opinion is that it released would impede a political solution; it would interfere with the discussions between the actors. In our case, the Court decided that it was not sufficient. It considered that because of the divergent views of the actors about the opinion it was not possible to really appreciate the impact of it[31].

 

4. CONCLUSION

 

Using Falk’s words we can say, with regards to jurisdiction, that “the advisory opinion seems on extremely solid ground, relying on past patterns of practice and widely accepted views of the institutional role of the ICJ within the United Nations system”[32]. Another conclusion is that the supposedly unfettered discretion of the Court deciding to render an opinion is not that clear. Article 65 is “significantly offset by other Charter articles that oblige the organs of the United Nations to cooperate with each other”[33].

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[1] C.D. Esposito, La jurisdicción consultiva de la Corte Internacional de Justicia, at xxvii-xxx (1996).

[2] Id. 103 et seq.

[3] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep. 2004, at 136 (hereinafter Wall).

[4] M.M. Aljaghoub, The Advisory Function of the International Court of Justice 1946-2005, at 38 et seq. (2006); and Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Rep. 1982, 333-334.

[5] Legality of the Threat or Use Nuclear Weapons, Advisory Opinion, ICJ Rep., 1996, at 22.

[6] Wall, 145.

[7] Ibid. 148-150.

[8] Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter), Advisory Opinion, ICJ Rep. 1962, at 155.

[9] C. de Visscher, Teorías y realidades en Derecho Internacional Público 387 (1962).

[10] Esposito, 82 and note 90.

[11] Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Rep. 1971, at 27.

[12] I. Scobbie, “Issues of competence and procedure in the Wall advisory opinion” available at COMPLETE, at 13.

[13] See Esposito, 89-91 and  Aljaghoub, 61-63.

[14] Wall, 154.

[15] Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Rep. 1973, at 172.

[16] Legality of the Threat or Use Nuclear Weapons, 234.

[17] Aljaghoub, 59.

[18] Wall, 153-154.

[19] COMPLETE

[20] Wall, 144.

[21] Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion, ICJ Rep. 1950, at 72.

[22] Wall, 44 and the jurisprudence cited.

[23] COMPLETE

[24] Western Sahara, Advisory Opinion, ICJ Rep. 1975, at 24.

[25] Ibid., 25.

[26] Scobbie, at 9.

[27] Wall, 160-162.

[28] Declaration of Judge Buergenthal, COMPLETE.

[29] Esposito, 100.

[30] Wall, 162-163.

[31] Ibid., 159-160.

[32] R.A. Falk, “Toward Authoritativeness: The ICJ Ruling on Israel’s Security Wall”, 99 AJIL 42, at 44 (2005).

[33] Aljaghoub, 67.

Is there (already) a right to democracy in international law? The case for the West

Democracy is a polysemous idea with a multifaceted contour; a powerful word which elicits heated discussions. Similar to self-determination, it has evolved from being a philosophical and political concept to also being a juridical one. Despite its elusiveness – what is in reality a good democracy? – it has been incorporated in the most relevant legal documents. The Spanish Constitution, for instance, states in article 1.1 that Spain is a “Estado social y democrático de Derecho”[1]. Similar references can be found in other texts, which reflect the evolving character of law as a social construction. This development is, however, circumscribed to the national sphere; the situation of democracy in the international legal order diverges completely. One main feature of international law is its liberalism, inextricably linked with the notion of sovereignty. Traditionally, states are not compelled to be ordained in a specific political system; it is a free choice. As the ICJ affirmed in its 1986 case about Military and Paramilitary Activities in Nicaragua:

 

“[A]dherence by a State to any particular doctrine does not constitute a violation of customary international law; to hold otherwise would make nonsense of the fundamental principle of State sovereignty, on which the whole of international law rests, and the freedom of choice of the political, social, economic and cultural system of a State.”[2]

 

Nevertheless, the changes occurred in the last decades have radically altered radically the panorama in which the ruling was delivered. These events have led some scholars to argue the appearance of a fledgling internationally customary norm by which there is a right to democracy. Now individuals could internationally assert a right to enjoy a democratic regime. Undoubtedly, this argument has been contested. The objective of this assignment is to observe if such a norm does already exist. It is submitted here that in general international law there is not yet a right to democratic governance; rather there is such an entitlement in the Western world as a special customary norm.

 

1. THE DEMOCRATIC ENTITLEMENT SCHOOL

 

The end of the Cold War marked the end of an era and the success of the West over the East, according to the triumphalists. The liberal democracy, with its multi-party elections, freedom of voting, expression and association concurrent with a free-market economy proved to be a better form of governance, or at least more durable. Indeed, it triggered major changes in the international sphere, and international law was not alien to the development. As underlined by Fox, “[i]nternational law, like all law, is essentially reactive in nature. Norms and institutions…arise not in a vacuum or as part of a coherent theoretical scheme, but in response to specific events.”[3] Indeed, for certain scholars one of the mayor alterations was the emergence of the right to democratic governance. The so-called “democratic entitlement” school - named after and led by Franck’s seminal article[4] - considers that it could be observed as a nascent norm by which citizens could now enjoy a right to democracy.

 

Their assertion was based fundamentally on three premises. First, the demise of the Soviet Union and the subsequent termination of a bipolar world ended the struggle for power. In other words, realpolitik stopped being the only driving force behind both superpowers, putting an end to disregarding the respect for human rights and democracy in favour of ideological affinity; at the same time permitted the termination of discussions over what was a real “democracy”. Second, the collapse caused the flourishing of democracies throughout the world that were committed to the model which just won the Cold War, which was holding free and fair elections as the liberal model. Moreover, states were willing to overthrow or punish those prepared to oust democratically elected leaders – e.g. Haiti. Last but not least, the entitlement could be inferred from a vast amount of “hard” and “soft” law proliferated since the inception of the UN. The Universal Declaration of Human Rights, the ICCPR, the ICESCR, the multiple General Assembly Resolutions or the 1999 Resolution of the Commission on the Human Rights entitled “Promotion of the Right to Democracy”[5] create, as the argument goes, a consistent normative body expressing this entitlement. The conjunction of these elements expresses both a sufficient practice and opinio juris to materialize as a customary norm as well as the shaping of a new paradigm. “[I]nternational law recognises only one legitimate way to ensure that a people’s rights to self-determination and free expression have been respected: through genuine and periodic elections.”[6] This last assertion is capital for the argument because it gives determinacy to the concept of democracy and “which makes its message clear”[7]. Otherwise it would not be possible to give right to something undefined; it would be a vacuous entitlement.

 

Indubitably, the consequences of the advent of such a norm in the international legal framework would have far-reaching upshots. The most obvious would be the prohibition upon nations to not depose their own democratic governments.[8] In other words, any action that would provoke a democratic reverse would be forbidden.[9] Furthermore, the rationale behind the idea is that democracy is the ultimate human rights as it is deemed the best guarantor of them. A democratic governance is more open to a compliance system of human rights by a teleological notion of democracy. Thus, democracy as such would become the central thrust of the international community and of the legal order. Subsequently, it would allow the use of force upon those states that could be depicted as undemocratic. Even more dangerous than an arbitrary use of force by some states upon others using as an excuse “a right to democratic governance”, is the fact that it divides the international legal order between two different types of regimes, which could have the potential to fracture one of the system’s mainstay. Predictably, the argument advanced by this school of thought has several inconveniences that can impair the transformation of the emergence of this rule into a proper, fully established norm.

 

2. THE LIMITS OF A GENERAL CUSTOMARY RIGHT TO DEMOCRACY

 

The main inconvenience, which goes against the effectiveness of it, is the exact content of democracy - despite Fox’s lengthy explanation justifying it.[10] Democracy is a contested concept, which sometimes provokes the spill-over of the implicit problems by its vagueness in the legal sphere. This lack of consensus[11] over minimum requirements hinders the efforts by the democratic entitlement school. Their emphasis on a Western based democratic model collides with other equally democratic types. As asserted by Mutua, the standard proposed by them is built in a series of core rights that “can only be realized and protected in a political society organized through the liberal democratic framework”[12]. Likewise, its admissibility could have the potentially devastating effect of silencing and concealing different democratic movements along with their knowledge.[13] By the same token, their minimalist approach towards democracy – a process-oriented version based on free and fair elections, freedom of expression, free market economy and so on – could drain its “emancipatory potential.”[14] It could sustain states that only pay a lip-service to democracy. Koskenniemi goes even a step further by simply denouncing the difficulties of grasping a universal rule of democracy and therefore proposing to drop any attempt of conceiving a common precept, proposing instead the adoption of a either mere modest account.[15] All these explanations only stress what has been stated at the beginning of the paragraph: the absence of conformity over a given definition is the crucial element, as will be shown later, in the existence of a right to democracy. Reservations about the obnoxious influence of the model proposed by the democratic entitlement school ignore how other equally contested - and Western - concepts have evolved. Self-determination, for instance, is a paradigmatic case; it was borne out of the French Revolution as a political entitlement. Despite its origin, it became normative; and it helped to emancipate all those countries that had been colonized. For this reason, Koskenniemi’s argument should be dismissed. Democracy, despite its problematic, is being used increasingly in more legal instruments. It is therefore unrealistic to simply ignore the treatment given to it, because it will not be the last appearance of a contested concept in the juridical sphere.

 

More relevant and which also undermines the case for a right to democratic governance is their “selective bias” with regards to justifying the existence of the norm. In Macdonald’s words – though he is talking about Franck’s article, the criticism can be also extended to his accolades:

 

“[I]n looking for the emergence and crystallisation of a norm into a rule of custom by means solely of an investigation into its legitimacy… here is a sense in which he assumes the existence of that which he seeks to demonstrate. An examination of whether a rule is more or less legitimate only makes sense if the existence of the rule is taken for granted, and it could thus be argued that [his] conclusions are undermined by a selective bias in the evidence he produces to support his propositions, occasioned by uncritical acceptance of a contestable premise.”[16]

 

This leads me to their use of sources for backing up their arguments. First, the employment of normative instruments like the covenants on human rights is done after a “wishful reading.”[17] They ignored the reservations made to them. The same can be argued with respect to the GA Resolutions. The organ can pass resolutions that contradict themselves. In one it can endorse Franck’s proposal and in other can state that the diversity of states impedes the application of a unique formula, and both resolutions accruing similar supports.[18] Indeed, if we combine them with the declarations issued by several states-representatives – especially from Asia – claiming the difference of values, it undermines the existence of sufficient opinio juris coming from the international community. A similar obstacle is encountered respecting the practice. Here, Carothers claims, despite the fact that they were made long ago, that the augment of the number of democracies all over the world was overstated because it was mainly a Western phenomenon remain as true as before.[19] After the dramatic increase of the 1990s, the tide of democratization has remained stable even with some setbacks. Pakistan can be an illustrative case of lack of normative force behind the entitlement to democratic governance. Despite the coup d’etat, Musharraf remained as Head of State for almost nine years. The (political) complains about his authoritarian rule was washed away after September 11. The US decided that it needed his help more against the Taliban, than pressuring him for becoming a democracy. Only after political problems, he abandoned power, not before. The attitude of the US in this case is exemplary of a broader trend. In short, the practice is wildly inconsistent.

 

From the conjunction of all these reflections can be inferred that the democratic entitlement is still a lege ferenda right, there is not enough proof of the establishment of a general customary rule. After almost twenty years since Franck’s article, the emerging right to democratic governance persists as an emerging right, or as Petersen argues as “a right to the emergence of democratic governance”[20]. How ironic to end with fashionable sophistication after so many years of discussing the topic with a similar idea already advanced by Steiner more than a decade ago.[21] Nonetheless, that cannot obscure the present importance of democracy in the international legal grammar. As Crawford notes, “[r]eferences to democracy…are entering into the justification of legal decision-making in a new way.”[22] But the lack of a general customary rule does not automatically entail the dismissal of the existence of such a norm in a different plane.

 

3. THE CASE FOR THE WEST

 

As a general rule, customary law is of universal character, binding all states regardless of their participation in its elaboration. Occasionally, as an exception, the emerging law can arise affecting only certain states. This divergence is labelled as a special or local customary law “which [by definition] are applicable only within a defined group of States.”[23] The ICJ admitted the possibility of its reality in the Asylum case[24]. Consequently, it can be argued that there is a special customary norm within the Western world by which citizens have a right to democratic governance. The problems encountered at the universal level are partially the very same that confirm the existence of the entitlement at a lower level.

 

On the one hand, the competing definitions hovering around the concept of democracy disappear once the focus is directed towards the Western world. In other words, there is a constant consensus of what has to be a democracy, and which is the one furthered by the democratic entitlement school. A procedural version which emphasizes the relevance of freedom of expression and association, the celebration of free and fair multi-party elections along with a free market system is rather the norm and what is accepted as democracy than an exception. On the other hand, there is a constant practice and opinio juris over the existence of the rule by the people. An illustrative example is the European Union, which makes direct references to democracy, even stating in the Treaty of Lisbon that the basic form of democracy is the representative; that is the process-oriented definition[25]. Moreover, this is not limited to a European phenomenon. The failed 2002 coup d’etat steered to oust Hugo Chávez from the Venezuelan Presidency displays how entrenched  the idea of democracy is nowadays within the West and that any change of government has to be done by means of ballots and not through illegitimate methods anymore. To put it briefly, there is the evidence of a regional or special customary rule. Here practice, in particular after the Cold War, has been consistent, states do really have the belief to be legally bound to a norm stating that individuals have a right to democracy, and there is a clear determinacy of the content of such an entitlement.

 

4. CONCLUSION

 

International law as it stands is the consequence of social encounters which as a result mirrors the community directed to regulate. The lack of agreement on the content of democracy, and subsequently over the right to democracy, reflects the situation of the international community. Therefore there is not yet a general customary norm expressing a right to democratic governance. However, the cultural and political homogeneity of the West produces the opposite: the reality of the entitlement.

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[1] Emphasis added.

[2] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, 1986, ICJ Reports 14, at 133.

[3] Fox, G., “Election Monitoring: The International Legal Setting”, 19 Wis. Int’l L. J. 295, 295 (2000-2001).

[4] Franck, T., “The Emerging Right to Democratic Governance”, 86 AJIL 47 (1992).

[5] Com. Human Rights, Res 1999/57, 27th April 1999.

[6] Macdonald, E., “International Law, Democratic Governance and September the 11^th”, 3 GLJ 9 (2002).

[7] See Franck, op. cit., 56ff.

[8] D’Amato, A., “Human Rights as Part of Customary International Law: A Plea for Change of Paradigms”, 25 Ga. J. Int'l & Comp. L. 47, 91 (1995-1996).

[9] Petersen, N., “The Principle of Democratic Teleology in International Law”, 34 Brook. J. Int’l L 35, 81 (2008).

[10] Fox, G., “The Right to Political Participation in International Law”, 17 Yale J. Int’l L. 539 (1992).

[11] Whitehead, L., Democratization: Theory and Experience 14 (2002).

[12] Mutua, M., “The Ideology of Human Rights”, 36 Va. J. Int’l L. 589, 594 n. 12 (1995-1996).

[13] Otto, D., “Challenging the ‘New World Order’: International Law, Global Democracy and the Possibilities for Women”, 3 Transnat’l L. & Contemp. Probs. 371, 384 (1993)

[14] Marks, S., “The ‘Emerging Norm': Conceptualizing ‘Democratic Governance'”, 91 ASIL Proceedings 372, 376 (1997).

[15] Koskenniemi, M. “Intolerant Democracies”: A Reaction”, 37 Harv. Int’l L. J. 231, 235 (1996).

[16] Macdonald, op. cit., par. 7.

[17] Roth, B., Governmental Illegitimacy in International Law 231 (1999).

[18] Fox, G. & Roth, B, “Introduction: The Spread of Liberal Democracy and its Implications for International Law", in Fox & Roth (eds.) Democratic Governance and International Law 1, 3 (2000); and Macdonald, op. cit., par. 8.

[19] Carothers, T., “Empirical Perspectives on the Emerging Norm of Democracy in International Law”, 86 ASIL Proceedings 261 (1992).

[20] Petersen, op. cit., 84.

[21] Steiner, H., “Political Participation as a Human Right”, 1 Harv. Hum. Rts Y.B. 77, 129ff (1988).

[22] Crawford, J., “Democracy and the Body of International Law", in Fox and Roth (eds.), op. cit., 91, at 102 (2000).

[23] Thirlway, H., “The Sources of International Law”, in Evans, M. (ed.), International Law (2^nd ed.) 115, at 125 (2006).

[24] See Asylum Case (Colombia v. Peru), Judgment 1950, ICJ Rep. 266, at 276.

[25] Treaty of Lisbon, EU Doc. 2007/C 306/01, Article 1.