viernes, 3 de abril de 2009

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.



[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 11th”, 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 (2nd 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.

4 comentarios:

Mario dijo...

Fantástico artículo. ¿Crees que cabría la posibilidad de que en el futuro, no sólo la práctica se generalizase y se convirtiese en una norma consuetudinaria de alcance general (como pasó con el principio de uti possidetis iuris), sino que además se entrelazase tanto con el principio de libre determinación de los pueblos que se convirtiese en una norma imperativa de derecho internacional general?

Porque tengo una duda: mientras subsista como norma consuetudinaria regional, ¿qué estados estarían legitimados para hacer valer la norma? Basándonos en el Proyecto de Artículos de 2001 (art.48) y entendiendo que el mantenimiento del gobierno democrático es un interés que incumbe a todos los estados vinculados por la norma regional, podríamos entender que todos los estados occidentales podrían exigir la responsabilidad del Estado que se apartase del procedimiento democrático, ¿no?

Saludos.

bordesinremedio dijo...

Buenas,

Como posibilidad no es descartable. Todo dependería de hacia donde se decantara la evolución jurídica de las normas, y sin duda no sólo sería una norma consuetudinaria, sino que por su alcance tendría que ser una norma fundamental del sistema, una norma ordenante.

La verdad es que resulta persuasivo la vinculación de autodeterminación y que hubiera una norma de derecho a la democracia, como así aduce Franck en su artículo. No obstante, como apunta Eckert, la ecuación es erronea. Pues confunde con un derecho a la autodeterminación realizable a través de medios democráticos con el resultado, que no tendría que serlo.

Al ser una norma regional serían aquellos estados englobados en el mundo occidental los que pudieran aplicar o poner en práctica el artículo 48, pero sólo a aquellos estados existente en occidente. Obviamente, creo, estás pensando en el uso de la fuerza, pero eso no sería posible, pues está prohibida con alcance general y sólo una resolución del CS permitiría utilizarla. Además, la respuesta a esa violación sería la utilización de contramedidas, las del artículo 54 del Proyecto de 2001. La cual a su vez está muy discutida, y que por tanto podría arguirse que también lo sería el artículo 48.

Mario dijo...

No, hombre, estaba pensando en la exigencia de responsabilidad internacional ante la CIJ, por ejemplo, aunque no tengo muy claro qué se podría exigir más allá del reconocimiento de la ilicitud de la situación.

Saludos.

bordesinremedio dijo...

Bueno, eso sería una posibilidad, sin embargo lo veo difícil, pues la Corte se ha mostrado reacia a admitir aquellas acciones llevadas por Estados que no estuvieran directamente afectadas, pese a que estuvieramos hablando de una norma de jus cogens o erga omnes.

La posibilidad sería la realización de contramedidas, medidas de retorsión o dentro de diversas organizaciones internacionales sanciones. Un ejemplo es la expulsión de Grecia del Consejo de Europa cuando el golpe de estado de los Coroneles.