The right to democracy in international law.
Introduction There is a view that democracy is increasingly seen as an emerging right 1 in international law, a right of peoples to manage their own affairs, overcoming a world history darkened by dictatorships and oppression. The purpose of this essay is not to look at whether or not this right exists, but to look more fundamentally at the intellectual underpinning of the concept of democracy that forms the basis of this right. Generally speaking, what exactly is being referred to when global particularly Western political leaders refer to democracy? This essay analyses the background to the suggestion that a right to democratic governance exists, or is beginning to exist in international law. Then, in order to establish what citizens are theoretically entitled to under this emerging right, it looks at the value of democracy, the quality of democracy in key Western states, and finally the very real problems that globalisation presents to the rights of countries to manage their own affairs. Throughout the essay, the question is asked, to what extent the emerging right is about narrow, electoral issues rather than a fundamental right and ability of the demos to have a full participatory role in their democracy? Emerging Rights The case for optimism appears, at first glance, to be bright. In the second half of the 20th century, there was a surge of democratic governments overturning various types of dictatorship, with over 110 governments 2 in 1991 committed to democracy and people almost everywhere now demanding that government be validated by western-style parliamentary, democratic process3, a demand that is reinforced by an increasing need of governments for validation. Democracy is almost universally seen as the way of producing this legitimacy. This legitimacy is built on the cornerstones self-determination, freedom of expression and electoral rights. Self-determination has a long pedigree in international law, with US President Woodrow Wilson making this a central plank of the post-war redrawing of the map of Europe and elsewhere. This principle was further strengthened after the Second World War with Article 1.2 of the United Nations Charter giving self-determination the status of a fundamental right. Freedom of expression, argues Franck4, has become a customary rule of state obligation due to the overwhelming support and prestige that the Universal1
Franck, Thomas M, The Emerging Right to Democratic Governance, The American Journal of International Law, Vol 86, pp 46-91 2 Ibid, P 47 3 Ibid, P 48 4 Ibid, P 61
Declaration on Human Rights5 (article 19) has accrued and this customary law has been underpinned by the Covenant on Civil and Political Rights6. Building on these rights, Franck sees an emerging normative requirement for participatory electoral processes, with over two thirds of states now bound by the Covenant on Civil and Political Rights. A substantial new majority of states now practice a reasonably credible version of electoral democracy7 and a variety of international instruments underlining this right, including the Charter of the Organization of American States8 and the European Convention on Human Rights9. This legitimacy is further strengthened by the work of the United Nations in election monitoring. With self-determination, electoral monitoring and freedom of expression now anchored in customary international law, as well as in a variety of international legal instruments, the argument is that international law now recognises only one legitimate way to ensure that a peoples right to self-determination and free expression have been respected: through genuine and periodic elections10. Indeed, the rights and obligations of democratic governance have become so clear that Fox argues that what constitutes a free and fair election is now a rather mundane question, one virtually devoid of serious interpretative ambiguities11. Is the situation really that clear? Is democracy a commodity that one can either have or not have? The UNDP explains that no society is ever completely democratic or fully developed12, so what degree of imperfection is permitted before the international community decides that the right to democratic governance is not enjoyed by citizens of a particular country? International lawyers and academics arguing the existence of a right to democratic governance risk making a questionable assumption that the Western approach to liberal democracy has won the battle of ideologies and that Western liberal democracy is democracy. As McDonald13 suggests, through the work in this area of international law, one can detect a celebratory tone that posits a we, who have reached our goal, and a they, who still have some distance to travel.5
Universal Declaration on Human Rights, General Assembly resolution 217 A (III) of 10 December 1948 6 International Covenant on Civil and Political Rights, General Assembly resolution 2200A of 16 December 1966 7 Op cit, P 64 8 Charter of the Organization of American States, 9th International Conference of American States, 1948 9 European Convention on Human Rights, Council of Europe, 1950 10 Macdonald, Euan, International Law, Democratic Governance and September the 11th, German Law Journal Vol. 3No 9, 1 September 2002. Section I. Online version available from http://www.germanlawjournal.com/print.php?id=184 as at 05 January 2004 (no page numbers in HTML version) 11 Ibid, quoting Fox, "The Right to Political Participation in International Law", in Fox and Roth (eds.) Democratic Governance and International Law (2000), pp 48-49 12 United Nations Development Project, Human Development Report 2002, UNDP, 2002, P 61 13 Macdonald, Ewan, Op cit, Section IV
This suggests both worrying intellectual flaws in the understanding of the putative right to democratic governance and a lack of the self awareness needed for any system to evolve. As the etymology suggests, democracy is about the people (demos) having power (kratos) to choose how they are governed. Choice cannot exist effectively without voters knowing what their choices are and for the rights of all parts of the demos to be adequately assured. When we contemplate that the West views as democratic, regimes that have no requirement, for example for decisions to be taken at the closest possible level to the citizen14, no minimum level of voter awareness, no minimum level of press independence, no minimum level of welfare or representation of the poorest or weakest in society, no minimum level of voter turnout nor indeed any requirement that the winning party be the one that gets the most votes, the case can be made that the real-world practice of democracy diverges considerably from the black and white world of democratic and undemocratic. This, in turn, raises absolutely fundamental questions about the foundations on which the concept of a right to democratic governance could possibly be built. The value of real democracy The management benefits of democracy are beyond doubt. In any organisation, individuals lower-down the management structure are closer to day-to-day management issues, have more experience of them, and consequently are more likely to have more detailed and relevant experience. Decentralising some power to lower levels of management can produce not just more efficient management, but the increased power and responsibility of individuals can increase their motivation and loyalty. However, in governance, as indeed in business, Robert Michels iron law of oligarchy15 is an ever-present but rarely considered threat. Essentially, the iron law argues that political parties and other membership organisations inevitably tend towards increasing bureaucracy and oligarchy a theory developed by Michels through watching the grass-roots democratic ideals of the Social Democratic Party (SPD) in Germany evaporate as the party grew in the early 1900s. Ultimately, the greater the level of centralisation in government, the further the distance between the citizen and the elected representative and the less significant each voter is to the elected representative (i.e. a decreasing voice in shaping increasingly complex and remote policy decisions). This inevitably leads to a corresponding loss in the ability of the citizen to have a significant voice, undermining the very essence of democracy. When we consider that the most significant level at which democracy is administered in the western world is14
The European Unions Maastricht Treaty establishes subsidiarity as a principle, although no serious effort has been made to enforce this at a sub-state level. 15 Michels, Robert, Zur Soziologie des Parteiwesens in der modernen Demokratie. Untersuchungen ber die oligarchischen Tendenzen des Gruppenlebens Krner (reprint) 1985 original 1911)
at the level of the imagined community16 of the nation, rather than automatically at the lowest level, we can see the roots of some of the problems of the western concept of democracy. Decentralisation is fundamental to true democracy, as this enables more informed decisions to be taken by voters as more decisions are taken locally on local issues that the citizen knows best. It also enables minorities more rights to control their own destiny, the Croatian national and local government protection safeguards for minorities being an interesting example17. If decentralisation is undertaken properly, it can also have significant benefits to citizens, as shown by the 20% increase in literacy rates in two Indian states after reform of the panchayati raj18 in the early 1990s in India and the reduction in administrative costs and improved economic well-being of Denmark19, (contrasting strongly with Ireland, which had a similar starting point but no decentralisation) through its decentralisation process in the 1970s. Numerous European countries have seen a move towards more sub-national democratic structures i