The Right to Democracy in International Law

Between Procedure, Substance and the Philosophy of John Rawls

Khalifa A Alfadhel

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781351865319
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book explores the right to democracy in international law and contemporary democratic theory, asking whether international law encompasses a substantive or procedural understanding of the notion. The book considers whether there can be considered to be a basis for the right to democracy in international customary law through identification of the relevant State practice and opinio juris, as well as through an evaluation of the Universal Declaration of Human Rights and whether the relevant provisions might be interpreted as forming customary law. The book then goes on to explore the relevant provisions in international treaties including the International Covenant on Civil and Political Rights before looking at the role of regional organizations and human rights regimes including the European Court of Human Rights and the Arab human rights regime. Khalifa A. Alfadhel draws on the work of John Rawls in order to put forward a theoretical basis for the right to democracy.

1
The right to democracy in international customary law

1.1 Introduction

It is of vital significance to advance the argument that the developing right to democracy in international law should be catalogued into two categories: the procedural right to democracy and the substantive right to the notion. The procedural right, which dominated the international arena, especially during the Cold War era, is based on limiting the concept to periodic free and fair elections. This understanding of the term was fundamentally evident in the context of the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).¹ This was due to ideological polarization in the drafting process of each instrument and subsequent State practice that defined the limitations provided in the scope and content of such form of government.

The procedural right to democracy could be described as a citizen’s right to free and fair elections on a periodic basis.² This incorporates the right to vote and the right to be elected in free and free elections. The Austrian–American economist, Joseph Schumpeter advanced a very unwavering rationale in Capitalism, Socialism and Democracy supporting the limitation of the right to the mere procedure of elections.³ In his view, popular democracy should not be embraced, where it could lead to the triumph of Socialism, an ideal that he did not welcome. Instead, in the name of realism, he believed that democracy was a construct to preserve elitist dominance. Therefore, it should be stripped from its entire ethical context.⁴

In terms of ethics, Schumpeter believed that there was no ‘will of the people’ and common good. This is significant in terms of assessing the notion in the context of international law, especially Article 21 of the UDHR which explicitly states: ‘The will of the people shall be the basis of the authority of government.’ To Schumpeter, democracy was a leaders’ competition for votes, and the competing leaders thereof deliver the will of the people. This minimalist view of the procedural right to democracy cannot be taken into thoughtful account when assessing the context of the term in international law.

A modern post-Cold War evaluation of Schumpeter’s theory could find some merit in his argument when assessing the events in the Arab World. The procedural electoral system did lead to the triumph and collapse of intolerant political Islam – in contrast to Socialism – as he advanced. The uprisings in the region were youth-dominated and populist by and large. However, the rationale stipulated in his manifestation cannot be accepted, where the will of the people and common good should be the ultimate guarantees for the sustainability of democracy. Therefore, instead of minimalizing, it should be maximized to include more rights beyond the procedure of elections by incorporating other rights and fundamental freedoms, where democracy becomes an end not a means to reach power. In other words, according to CB Macpherson, ‘the egalitarian principle inherent in democracy requires not only “one man, one vote,” but also “one man, one equal right to live as fully humanly as he may wish”.’⁵

The main objective of this chapter is to illustrate the position of the right to democracy in international customary law. This will be through the assessment of the position of the right in question in traditional international custom, and the modern approach to international declarative law in the context of the UDHR, as provided by leading academic analysis. This chapter will then assess the merits of the right to democracy as provided in Article 21 of the Declaration. It will provide how the right in this context is procedural in its nature, and the application of the procedural right to democracy is insufficient, especially in the context of the Arab World. The thin electoral model cannot provide the necessary guarantees to maintain democracy in a sustained fashion, particularly in transitional societies. International law needs to be an instrument to empower individuals. However, when solely applying the minimalist procedural element of the right to democracy, it becomes a tool that implements unequal power relations between those who are prescribed as equal individuals.⁶ This is therefore a significant conceptual problem, which requires an in-depth assessment. Understanding the right to democracy in the context of the UDHR is significant to the analysis, since it is the first international instrument to recognize the term as a human right. The evaluation of the right to democracy in this context will conclude on a reflection and critique on where it stands in international customary law and in the most significant human rights instrument.

1.2 The right to democracy in traditional international customary law

Article 38 of the Statute of the International Court of Justice (ICJ) stated that international custom is one of the primary sources of international law. International custom is determined by State practice accompanied by opinio juris. The identification of international customary law – in its traditional sense – is based on a number of elements as advanced by Manley Hudson. First, the coherent practice by a number of States. This has to be with respect to a precise subject in international relations (including human rights). Second, the frequency of such practice over a considerable period of time. Third, the general understanding that such practice is prescribed by international law. And, finally, the common harmony in the practice with other States that confirmed such norm.⁷

From the above definition and outline, the recognition of traditional customary international law with respect to the subject of this chapter will be based on the criteria of generality and acceptance as law.⁸ The ICJ in the Fisheries Jurisdiction Cases affirmed the principle of generality.⁹ The generality criterion encompasses the acceptance of a legal norm by a significant number of States.¹⁰ Silence could imply in this case either tacit acceptance or non-interest.¹¹

The second principle is ‘acceptance as law’ which was upheld by the ICJ in the Continental Shelf Cases.¹² The Court provided: ‘There are many international acts, e.g. in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition and not by any sense of legal duty.’¹³ It is important to note here that, unlike international treaties, where the determination of an international law norm and State obligation is straightforward, the recognition of international custom could be harder to identify.¹⁴

However, from the above elements of international customary law, one could conclude that there is no positive State practice accompanied by opinio juris with regard to the right to democracy for a number of reasons. First, if State practice confirmed the right to democracy in international law as an international customary norm, then the non-application of democratic governance would be seen as a violation of international law. This is certainly not the case, where the international community issued positive measures against States for the violation of other fundamental rights of freedoms that did not coherently extend to the right to democracy.¹⁵

Second, State practice did not demonstrate a clear affirmation of democracy as a form of government. The international community has seen a rise in non-democratic superpowers, without any serious objection. This was in contrast to the consistent and firm international condemnation of fascism and apartheid as forms of government. This shows that there is no international commitment to democracy as a human right.¹⁶

Further, the right to democracy does not exist in traditional international custom because the concept of pro-democratic military intervention is not supported by State practice and international organizations.¹⁷ The notion of pro-democracy regime change was condemned by the General Assembly on many occasions, and is a controversial issue in international law.¹⁸ Therefore, if there were an international binding customary norm in this respect, the aforementioned concept would have been accepted as a necessary action.

From the above, one could safely assert that there is no international customary norm on the right to democracy in international law. This was through the assessment of the traditional approach to international customary law. However, the observation of the wider understanding of this source requires the consideration of the modern customary approach as provided in the context of the UDHR.

1.3 The right to democracy in modern international customary law: the Universal Declaration of Human Rights

The UDHR is mainly the first fundamental international document to mildly recognize democracy as a concept in international law. It instituted the foundations of a new human rights order that gave the meaning of humanity a new understanding. The UNGA adopted the UDHR on 10 December 1948 with 48 votes in favour, eight abstentions and none against. This demonstrates how the newly founded international community at the time took the issue of human rights seriously. The Chairperson of the Human Rights Commission, Eleanor Roosevelt, who drafted the Declaration, proclaimed its significance, considering it ‘the Magna Carta of all mankind’.¹⁹

The UDHR, together with the ICCPR and the International Covenant on Economic, Social and Cultural rights comprise the International Bill of Human Rights. However, the Declaration is the foundation of the codification of modern human rights, and the most universal and comprehensive international document in that respect. Therefore, it stands today as a first reference to human rights and ‘the single most cited human rights instrument’.²⁰

The UDHR covered a wide range of rights. Civil, political, economic, cultural and social rights were protected by the Declaration, which makes it a very comprehensive human rights document. This led some commentators to consider the comprehensive codification of rights in its context as modern international customary law.²¹ The modern declarative approach to international customary law will be the beginning point of the analysis. A conclusion on the position of the right to democracy in the context of binding international law is necessary to comprehend the compelling position of the notion. The focus of this section will then extend to the merits of Article 21 of the Declaration. This will be achieved through providing a detailed presentation of the drafting history of the UDHR, especially in the context of the democracy provision. The importance of engaging with the travaux préparatoires of the Declaration is necessary in order to comprehend the political and historic conditions that led to the adoption of the right to democracy in this procedural context. They are furthermore important since the observance of the drafting history is to a very high extent explanatory to the text. This section will also present a detailed assessment of the merits of Article 21, in terms of its encompassment of a procedural understanding of democracy, which does not extend beyond the right to free and fair elections on a periodic basis.

a The legal value of the Universal Declaration of Human Rights

In order to assess the merits of the provision on the right to political participation, one must first briefly bring to the discu...