Democracy and international law

Review of International Studies

Volumn 27, Issue 3, 2001, Pages 327-352

  Fox, Gregory H ^a   Roth, Brad R ^a  

^a NONE   (United Kingdom)

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EID: 0035594582     PISSN: 02602105     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0260210501003278     Document Type: Article

References (152)

1. For a discussion of doctrine and scholarship on this question prior to the end of the Cold War, see the essays in Gregory H. Fox and Brad R. Roth (eds.), Democratic Governance and International Law (Cambridge: Cambridge University Press, 2000).
2. American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States, sec. 203, comment e (1987).
3. Article 25 of the ICCPR provides: Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.
4. See generally Henry J. Steiner, ’Political Participation as a Human Right’, Harvard Human Rights Year Book 1 (1988), p. 77. The impression that participatory rights could not transcend ideological conflict was reinforced by the US Government’s invocations of that right in support of Cold War policies. See, for instance, Cynthia Brown (ed.), With Friends Like These: The Americas Watch Report on Human Rights and US Policy in Latin America (New York: Pantheon Books, 1985), pp. 3-23.
5. See generally Henry J. Steiner, ’Political Participation as a Human Right’, Harvard Human Rights Year Book 1 (1988), p. 77. The impression that participatory rights could not transcend ideological conflict was reinforced by the US Government’s invocations of that right in support of Cold War policies. See, for instance, Cynthia Brown (ed.), With Friends Like These: The Americas Watch Report on Human Rights and US Policy in Latin America (New York: Pantheon Books, 1985), pp. 3-23.
6. See Yves Biegbeder, International Monitoring of Plebiscites, Referenda and National Elections (Dordrecht: Martinus Nijhoff, 1994), pp. 164-9.
7. The 1948 Charter of the Organization of American States declares that ’representative democracy is an indispensable condition for the stability, peace and development of the region’. The 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms states in its preamble that ’an effective political democracy is essential to the protection of fundamental freedoms’.
8. Human Rights Committee, General Comment 25 (57), UN Doc. CCPR/C/21/Rev.1/Add.7 (1996) (elaborating the nature of the right to political participation in ICCPR, article 25); Bwalya v. Zambia, Commun. no. 314/1988, UN Doc. CCPR/C/48/D/314/1988 (1993), reprinted in Human Rights Law Journal 14 (1993), p. 408 (opining against the barring of electoral candidates who are not members of the ruling party).
9. Human Rights Committee, General Comment 25 (57), UN Doc. CCPR/C/21/Rev.1/Add.7 (1996) (elaborating the nature of the right to political participation in ICCPR, article 25); Bwalya v. Zambia, Commun. no. 314/1988, UN Doc. CCPR/C/48/D/314/1988 (1993), reprinted in Human Rights Law Journal 14 (1993), p. 408 (opining against the barring of electoral candidates who are not members of the ruling party).
10. Promotion of the Right to Democracy, Commission on Human Rights Resolution 1999/57 (27 April 1999).
11. See Greek Case, 1969 Yearbook of the European Convention in Human Rights 179, 180 (Eur. Comm’n of HR); Case of the Socialist Party and Others v. Turkey, Case no. 20/1997/804/1007 (Eur. Ct. H. R. 1998); Matthews v. United Kingdom, App. No. 24833/94 (1999); Mexico Elections Decision, Cases 9768, 9780, 9828, Inter-American Commission on Human Rights 97, 108, OEA/Ser.L/V/11.77, doc. 7, rev. 1 (1990).
12. See Greek Case, 1969 Yearbook of the European Convention in Human Rights 179, 180 (Eur. Comm’n of HR); Case of the Socialist Party and Others v. Turkey, Case no. 20/1997/804/1007 (Eur. Ct. H. R. 1998); Matthews v. United Kingdom, App. No. 24833/94 (1999); Mexico Elections Decision, Cases 9768, 9780, 9828, Inter-American Commission on Human Rights 97, 108, OEA/Ser.L/V/11.77, doc. 7, rev. 1 (1990).
13. See Greek Case, 1969 Yearbook of the European Convention in Human Rights 179, 180 (Eur. Comm’n of HR); Case of the Socialist Party and Others v. Turkey, Case no. 20/1997/804/1007 (Eur. Ct. H. R. 1998); Matthews v. United Kingdom, App. No. 24833/94 (1999); Mexico Elections Decision, Cases 9768, 9780, 9828, Inter-American Commission on Human Rights 97, 108, OEA/Ser.L/V/11.77, doc. 7, rev. 1 (1990).
14. See Greek Case, 1969 Yearbook of the European Convention in Human Rights 179, 180 (Eur. Comm’n of HR); Case of the Socialist Party and Others v. Turkey, Case no. 20/1997/804/1007 (Eur. Ct. H. R. 1998); Matthews v. United Kingdom, App. No. 24833/94 (1999); Mexico Elections Decision, Cases 9768, 9780, 9828, Inter-American Commission on Human Rights 97, 108, OEA/Ser.L/V/11.77, doc. 7, rev. 1 (1990).
15. See Greek Case, 1969 Yearbook of the European Convention in Human Rights 179, 180 (Eur. Comm’n of HR); Case of the Socialist Party and Others v. Turkey, Case no. 20/1997/804/1007 (Eur. Ct. H. R. 1998); Matthews v. United Kingdom, App. No. 24833/94 (1999); Mexico Elections Decision, Cases 9768, 9780, 9828, Inter-American Commission on Human Rights 97, 108, OEA/Ser.L/V/11.77, doc. 7, rev. 1 (1990).
16. See AG/RES. 1080 (XXI-0/91) (5th plen. sess., June 5, 1991) (’Representative Government’ resolution coinciding with the ’Santiago Commitment to Democracy and the Renewal of the Inter-American System’); OEA/Ser.P/AG/doc.11 (XVI-E/92) (14 December 1992) (Charter amendment providing for suspension from participation in the OAS General Assembly of a state whose democratically-elected government is forcibly overthrown).
17. See Conference on Security and Co-operation in Europe, Document of the Moscow Meeting, 3 October 1991, paras. 17.1, 17.2, 30, International Legal Materials (1991), pp. 1670, 1677 (condemning forces seeking to overthrow a freely and fairly elected government and pledging to ’support vigorously, in accordance with the Charter of the United Nations’, the ’legitimate organs’ of that State).
18. See Conference on Security and Co-operation in Europe, Document of the Moscow Meeting, 3 October 1991, paras. 17.1, 17.2, 30, International Legal Materials (1991), pp. 1670, 1677 (condemning forces seeking to overthrow a freely and fairly elected government and pledging to ’support vigorously, in accordance with the Charter of the United Nations’, the ’legitimate organs’ of that State).
19. See, for example, GA Res. 45/150 (1990) (on ’Enhancing the effectiveness of the principle of periodic and genuine elections’).
20. Biegbeder, International Monitoring.
21. See SC Res. 940 (1994) (authorizing armed intervention in Haiti); UN Doc. S/PRST/1998/5 (Security Council Presidential Statement welcoming the removal of the Sierra Leonean junta); S.C. Res. 1162 (1998) (commending ECOWAS after the fact for its role in the Sierra Leonean transition).
22. Annual Report of the Secretary-General on the Work of the Organization, UN Doc. A/52/1 (1997), para. 37.
23. Thomas M. Franck, ’The Emerging Right to Democratic Governance’, American Journal of International Law, 86 (1992), p. 46.
24. Ibid. p. 46.
25. Ibid.
26. See Edward Kofi Quashigah, ’Legitimate Governance in Africa: The Responsibility of the International Community,’ in Edward Kofi Quashigah and Obicra Chinedu Okafor, (eds.), Legitimate Governance in Africa (The Hague: Kluwer 1999), pp. 461-85; Report of the Secretary-General, Support by the United Nations System of the Efforts of Governments to Promote and Consolidate New or Restored Democracies, UN Doc. A/53/554 and corr. 1 (1998); Luc Reychler, ’Democratic Peacebuilding and Conflict Prevention,’ in Karel Wellens (ed.), International Law: Theory and Practice - Essays in Honor of Eric Suy (The Hague: Nijhoff, 1998); Sonia K. Han, Note: ’Building a Peace that Lasts: the United Nations and Post-Civil War Peace Building’, New York University Journal of International Law and Politics, 26 (1994), pp. 837-92. Some may find contrary principles at work in the decision of the High Representative for Bosnia/Herzegovina to remove elected Bosnian Serb President Nikola Poplasen from office in March 1999. OHR Press Release (5 March 1999).
27. See Edward Kofi Quashigah, ’Legitimate Governance in Africa: The Responsibility of the International Community,’ in Edward Kofi Quashigah and Obicra Chinedu Okafor, (eds.), Legitimate Governance in Africa (The Hague: Kluwer 1999), pp. 461-85; Report of the Secretary-General, Support by the United Nations System of the Efforts of Governments to Promote and Consolidate New or Restored Democracies, UN Doc. A/53/554 and corr. 1 (1998); Luc Reychler, ’Democratic Peacebuilding and Conflict Prevention,’ in Karel Wellens (ed.), International Law: Theory and Practice - Essays in Honor of Eric Suy (The Hague: Nijhoff, 1998); Sonia K. Han, Note: ’Building a Peace that Lasts: the United Nations and Post-Civil War Peace Building’, New York University Journal of International Law and Politics, 26 (1994), pp. 837-92. Some may find contrary principles at work in the decision of the High Representative for Bosnia/Herzegovina to remove elected Bosnian Serb President Nikola Poplasen from office in March 1999. OHR Press Release (5 March 1999).
28. See Edward Kofi Quashigah, ’Legitimate Governance in Africa: The Responsibility of the International Community,’ in Edward Kofi Quashigah and Obicra Chinedu Okafor, (eds.), Legitimate Governance in Africa (The Hague: Kluwer 1999), pp. 461-85; Report of the Secretary-General, Support by the United Nations System of the Efforts of Governments to Promote and Consolidate New or Restored Democracies, UN Doc. A/53/554 and corr. 1 (1998); Luc Reychler, ’Democratic Peacebuilding and Conflict Prevention,’ in Karel Wellens (ed.), International Law: Theory and Practice - Essays in Honor of Eric Suy (The Hague: Nijhoff, 1998); Sonia K. Han, Note: ’Building a Peace that Lasts: the United Nations and Post-Civil War Peace Building’, New York University Journal of International Law and Politics, 26 (1994), pp. 837-92. Some may find contrary principles at work in the decision of the High Representative for Bosnia/Herzegovina to remove elected Bosnian Serb President Nikola Poplasen from office in March 1999. OHR Press Release (5 March 1999).
29. See Edward Kofi Quashigah, ’Legitimate Governance in Africa: The Responsibility of the International Community,’ in Edward Kofi Quashigah and Obicra Chinedu Okafor, (eds.), Legitimate Governance in Africa (The Hague: Kluwer 1999), pp. 461-85; Report of the Secretary-General, Support by the United Nations System of the Efforts of Governments to Promote and Consolidate New or Restored Democracies, UN Doc. A/53/554 and corr. 1 (1998); Luc Reychler, ’Democratic Peacebuilding and Conflict Prevention,’ in Karel Wellens (ed.), International Law: Theory and Practice - Essays in Honor of Eric Suy (The Hague: Nijhoff, 1998); Sonia K. Han, Note: ’Building a Peace that Lasts: the United Nations and Post-Civil War Peace Building’, New York University Journal of International Law and Politics, 26 (1994), pp. 837-92. Some may find contrary principles at work in the decision of the High Representative for Bosnia/Herzegovina to remove elected Bosnian Serb President Nikola Poplasen from office in March 1999. OHR Press Release (5 March 1999).
30. See Edward Kofi Quashigah, ’Legitimate Governance in Africa: The Responsibility of the International Community,’ in Edward Kofi Quashigah and Obicra Chinedu Okafor, (eds.), Legitimate Governance in Africa (The Hague: Kluwer 1999), pp. 461-85; Report of the Secretary-General, Support by the United Nations System of the Efforts of Governments to Promote and Consolidate New or Restored Democracies, UN Doc. A/53/554 and corr. 1 (1998); Luc Reychler, ’Democratic Peacebuilding and Conflict Prevention,’ in Karel Wellens (ed.), International Law: Theory and Practice - Essays in Honor of Eric Suy (The Hague: Nijhoff, 1998); Sonia K. Han, Note: ’Building a Peace that Lasts: the United Nations and Post-Civil War Peace Building’, New York University Journal of International Law and Politics, 26 (1994), pp. 837-92. Some may find contrary principles at work in the decision of the High Representative for Bosnia/Herzegovina to remove elected Bosnian Serb President Nikola Poplasen from office in March 1999. OHR Press Release (5 March 1999).
31. Main Types of Assistance Activities (Electoral Assistance Division, United Nations Department of Political Affairs, 2000), p. 5, available at: www.un.crg/Depts/dpa/ead/Websites.htm.
32. Report from the Commission on the Implementation of Measures Intended to Promote Observance of Human Rights and Democratic Principles, COM(96)672 (1997), p. 6.
33. These are set out in detail in the UN Center for Human Rights’ Human Rights and Elections: A Handbook on the Legal, Technical and Human Rights Aspects of Elections (Geneva: United Nations, 1994).
34. As Oppenheim stated in the first edition of his influential treatise: ’The Law of Nations prescribes no rules as regards the kind of head a State may have. Every State is, naturally, independent regarding this point, possessing the faculty of adopting any Constitution according to its discretion’. Lassa Oppenheim, International Law, vol. 1 (London: Longmans Green, 1905), p. 403.
35. Kurt Herndl, ’The Case-Law of the Commission as Regards the Right to Free Elections (Article 3 of protocol 1)’, in The Birth of European Human Rights Law, Michele de Salvia and Marti E. Villiger (eds.) (Baden-Baden: Nomos Verlagsgesellschaft 1998): (’the right of an individual to take part in elections is quintessential for any democratic society and any democratic State’.)
36. This non-exclusive list refers to (a) the rights to freedom of opinion and expression, of thought, conscience and religion, and of peaceful association and assembly; (b) the right to freedom to seek, receive and impart information and ideas through any media; (c) the rule of law; (d) the right of universal and equal suffrage, as well as free voting procedures and periodic and free elections; (e) the right to political participation; (f) transparent and accountable government institutions; (g) the right of citizens to choose their government system though constitutional or other democratic means; and (h) equal access to public service. Promotion of the Right to Democracy, Comm. HR Res. 1999/57 (27 April 1999) (approved by a vote of 51-0-2).
37. See the discussion in Gregory H. Fox, ’The Right to Political Participation in International Law,’ in Fox and Roth, Democratic Governance.
38. Ibid., pp. 55-9.
39. Stephen Haggard and Steven B. Webb (eds.), Voting for Reform: Democracy, Political Liberalization and Economic Adjustment (New York: Oxford University Press, 1994); Leila L. Frischtak, Governance Capacity and Economic Reform in Developing Countries, World Bank Technical Paper no. 254 (1994).
40. Stephen Haggard and Steven B. Webb (eds.), Voting for Reform: Democracy, Political Liberalization and Economic Adjustment (New York: Oxford University Press, 1994); Leila L. Frischtak, Governance Capacity and Economic Reform in Developing Countries, World Bank Technical Paper no. 254 (1994).
41. The African Commission on Human Rights has called upon ’incumbent military governments to hand over political power to democratically elected governments without prolonging their incumbencies and unnecessarily delaying the return to democratic civilian rule’. ’Resolution on the Military,’ in Eighth Annual Activity Report of the Commission on Human and Peoples’ Rights, 1994-5, Thirty-First Ordinary Session, 26-28 June 1995, Addis Ababa, Ethiopia 42 (1995). The Secretary-General of the Commonwealth stated in a June 1999 speech that ’no longer would the Commonwealth tolerate any one of its members slipping back into military rule or one-party dictatorship’. Cultures of Democracy: A Commonwealth Perspective (21 June 1999), available at: www.thecommonwealth.org/htm/info/info/speeches1997-1.htm. When Pakistan’s elected government was ousted by the military on 12 October 1999, a Commonwealth Ministerial Action Group condemned the coup as ’a serious violation of the Commonwealth’s fundamental political principles’ and suspended Pakistan from all councils of the organization. Commonwealth News Release 99/60 (18 October 1999).
42. The African Commission on Human Rights has called upon ’incumbent military governments to hand over political power to democratically elected governments without prolonging their incumbencies and unnecessarily delaying the return to democratic civilian rule’. ’Resolution on the Military,’ in Eighth Annual Activity Report of the Commission on Human and Peoples’ Rights, 1994-5, Thirty-First Ordinary Session, 26-28 June 1995, Addis Ababa, Ethiopia 42 (1995). The Secretary-General of the Commonwealth stated in a June 1999 speech that ’no longer would the Commonwealth tolerate any one of its members slipping back into military rule or one-party dictatorship’. Cultures of Democracy: A Commonwealth Perspective (21 June 1999), available at: www.thecommonwealth.org/htm/info/info/speeches1997-1.htm. When Pakistan’s elected government was ousted by the military on 12 October 1999, a Commonwealth Ministerial Action Group condemned the coup as ’a serious violation of the Commonwealth’s fundamental political principles’ and suspended Pakistan from all councils of the organization. Commonwealth News Release 99/60 (18 October 1999).
43. The African Commission on Human Rights has called upon ’incumbent military governments to hand over political power to democratically elected governments without prolonging their incumbencies and unnecessarily delaying the return to democratic civilian rule’. ’Resolution on the Military,’ in Eighth Annual Activity Report of the Commission on Human and Peoples’ Rights, 1994-5, Thirty-First Ordinary Session, 26-28 June 1995, Addis Ababa, Ethiopia 42 (1995). The Secretary-General of the Commonwealth stated in a June 1999 speech that ’no longer would the Commonwealth tolerate any one of its members slipping back into military rule or one-party dictatorship’. Cultures of Democracy: A Commonwealth Perspective (21 June 1999), available at: www.thecommonwealth.org/htm/info/info/speeches1997-1.htm. When Pakistan’s elected government was ousted by the military on 12 October 1999, a Commonwealth Ministerial Action Group condemned the coup as ’a serious violation of the Commonwealth’s fundamental political principles’ and suspended Pakistan from all councils of the organization. Commonwealth News Release 99/60 (18 October 1999).
44. The African Commission on Human Rights has called upon ’incumbent military governments to hand over political power to democratically elected governments without prolonging their incumbencies and unnecessarily delaying the return to democratic civilian rule’. ’Resolution on the Military,’ in Eighth Annual Activity Report of the Commission on Human and Peoples’ Rights, 1994-5, Thirty-First Ordinary Session, 26-28 June 1995, Addis Ababa, Ethiopia 42 (1995). The Secretary-General of the Commonwealth stated in a June 1999 speech that ’no longer would the Commonwealth tolerate any one of its members slipping back into military rule or one-party dictatorship’. Cultures of Democracy: A Commonwealth Perspective (21 June 1999), available at: www.thecommonwealth.org/htm/info/info/speeches1997-1.htm. When Pakistan’s elected government was ousted by the military on 12 October 1999, a Commonwealth Ministerial Action Group condemned the coup as ’a serious violation of the Commonwealth’s fundamental political principles’ and suspended Pakistan from all councils of the organization. Commonwealth News Release 99/60 (18 October 1999).
45. Sean D. Murphy, ’Democratic Legitimacy and Recognition of States and Governments’, International and Comparative Law Quarterly, 48 (1999), pp. 545-81.
46. The Maastricht Treaty on European Union provides that democracy and respect for human rights, as set forth in the European Convention on Human Rights, shall be pre-conditions for membership in the European Union. Treaty on European Union, Title I(F), International Legal Materials, 31 (1992), p. 256.
47. The Washington Protocol to the OAS Charter provides for the suspension from the General Assembly of any member state whose democratically constituted government has been overthrown by force. OAE/Ser.P, AG/doc.11 (XVI-E/92), rev. 1 (1992). MERCOSUR’s 1996 Protocol of Ushuaia provides that any disruption of democracy in a member state may lead to the suspension of that state’s right to participate in MERCOSUR organs and a suspension of its rights under the preferential trade instruments promulgated by the organization. Protocol de Ushuaia Sobre Compromiso Democrático en el Mercosur, la Republica de Bolivia y la Republica de Chile, arts. 4 and 5 (1996), available at www.idrc.callacro/investigacion/mercosur2.html. The member states of MERCOSUR are Argentina, Brazil, Paraguay and Uruguay.
48. On the Inclusion of Respect for Democratic Principles and Human Rights in Agreements between the Community and Third Countries, COM(95)215 (1995). Democratic principles are defined by reference to the Helsinki Final Act, Aug. 1, 1975, ILM 14, p. 1292, and the OSCE Charter of Paris, 21 Nov., 1990, ILM 30 (1991), p. 190. See Frank Hoffmeister, Menschenrechts und Demokratie-Klauseln in den vertraglichen Aussenbezehungen der Europäischen Gemeinschaft (Berlin: Springer 1998); Barbara Brandtner and Allan Rosas, ’Human Rights and the External Relations of the European Community: an Analysis of Doctrine and Practice’, European Journal of International Law, 9 (1998), pp. 473-77.
49. On the Inclusion of Respect for Democratic Principles and Human Rights in Agreements between the Community and Third Countries, COM(95)215 (1995). Democratic principles are defined by reference to the Helsinki Final Act, Aug. 1, 1975, ILM 14, p. 1292, and the OSCE Charter of Paris, 21 Nov., 1990, ILM 30 (1991), p. 190. See Frank Hoffmeister, Menschenrechts und Demokratie-Klauseln in den vertraglichen Aussenbezehungen der Europäischen Gemeinschaft (Berlin: Springer 1998); Barbara Brandtner and Allan Rosas, ’Human Rights and the External Relations of the European Community: an Analysis of Doctrine and Practice’, European Journal of International Law, 9 (1998), pp. 473-77.
50. On the Inclusion of Respect for Democratic Principles and Human Rights in Agreements between the Community and Third Countries, COM(95)215 (1995). Democratic principles are defined by reference to the Helsinki Final Act, Aug. 1, 1975, ILM 14, p. 1292, and the OSCE Charter of Paris, 21 Nov., 1990, ILM 30 (1991), p. 190. See Frank Hoffmeister, Menschenrechts und Demokratie-Klauseln in den vertraglichen Aussenbezehungen der Europäischen Gemeinschaft (Berlin: Springer 1998); Barbara Brandtner and Allan Rosas, ’Human Rights and the External Relations of the European Community: an Analysis of Doctrine and Practice’, European Journal of International Law, 9 (1998), pp. 473-77.
51. On the Inclusion of Respect for Democratic Principles and Human Rights in Agreements between the Community and Third Countries, COM(95)215 (1995). Democratic principles are defined by reference to the Helsinki Final Act, Aug. 1, 1975, ILM 14, p. 1292, and the OSCE Charter of Paris, 21 Nov., 1990, ILM 30 (1991), p. 190. See Frank Hoffmeister, Menschenrechts und Demokratie-Klauseln in den vertraglichen Aussenbezehungen der Europäischen Gemeinschaft (Berlin: Springer 1998); Barbara Brandtner and Allan Rosas, ’Human Rights and the External Relations of the European Community: an Analysis of Doctrine and Practice’, European Journal of International Law, 9 (1998), pp. 473-77.
52. On the Inclusion of Respect for Democratic Principles and Human Rights in Agreements between the Community and Third Countries, COM(95)215 (1995). Democratic principles are defined by reference to the Helsinki Final Act, Aug. 1, 1975, ILM 14, p. 1292, and the OSCE Charter of Paris, 21 Nov., 1990, ILM 30 (1991), p. 190. See Frank Hoffmeister, Menschenrechts und Demokratie-Klauseln in den vertraglichen Aussenbezehungen der Europäischen Gemeinschaft (Berlin: Springer 1998); Barbara Brandtner and Allan Rosas, ’Human Rights and the External Relations of the European Community: an Analysis of Doctrine and Practice’, European Journal of International Law, 9 (1998), pp. 473-77.
53. Gabcíkovo-Nagymaros Project (Hungary/Slovakia), 1997 ICJ 1, para. 104 (International Court of Justice rejects Hungary’s claim that ’profound changes of a political nature’ in Eastern Europe, in combination with other factors, constituted a ’fundamental change in circumstances’).
54. See Vienna Declaration and Programme of Action, UN Doc. A/Conf. 157/23, para. 8 (1993) (’[t]he international community should support the strengthening and promoting of democracy, development and respect for human rights’); Annual Report of the Secretary-General on the Work of the Organization, UN Doc. A/52/1, para. 22 et seq. (section of report entitled ’Governance, Human Rights and Democratization’); Case C-268/94, Portugese Republic v. Council of the European Union, 1996-12 ECJ Rep. 6177, 6217 (1996) (article 130u(2) of the EC Treaty ’demonstrates the importance to be attached to respect for human rights and democratic principles’); Case 10.956, Inter-Am. CHR (Mexico), reprinted in Annual Report of the Inter-American Commission on Human Rights 1993 (1994), p. 269 (’[t]he close relationship between representative democracy as a form of government and the exercise of the political rights so defined, also presupposes the exercise of other fundamental rights’); Final Declaration and Action Plan on Human Rights and Democracy of the Council of Europe’s Second Summit Meeting of Heads of State and Governments 1997 (1997), reprinted in International Human Rights Reports, 5 (1998), p. 581 (reaffirming ’attachment to the fundamental principles of the Council of Europe - pluralist democracy, respect for human rights, the rule of law’).
55. See Vienna Declaration and Programme of Action, UN Doc. A/Conf. 157/23, para. 8 (1993) (’[t]he international community should support the strengthening and promoting of democracy, development and respect for human rights’); Annual Report of the Secretary-General on the Work of the Organization, UN Doc. A/52/1, para. 22 et seq. (section of report entitled ’Governance, Human Rights and Democratization’); Case C-268/94, Portugese Republic v. Council of the European Union, 1996-12 ECJ Rep. 6177, 6217 (1996) (article 130u(2) of the EC Treaty ’demonstrates the importance to be attached to respect for human rights and democratic principles’); Case 10.956, Inter-Am. CHR (Mexico), reprinted in Annual Report of the Inter-American Commission on Human Rights 1993 (1994), p. 269 (’[t]he close relationship between representative democracy as a form of government and the exercise of the political rights so defined, also presupposes the exercise of other fundamental rights’); Final Declaration and Action Plan on Human Rights and Democracy of the Council of Europe’s Second Summit Meeting of Heads of State and Governments 1997 (1997), reprinted in International Human Rights Reports, 5 (1998), p. 581 (reaffirming ’attachment to the fundamental principles of the Council of Europe - pluralist democracy, respect for human rights, the rule of law’).
56. See Vienna Declaration and Programme of Action, UN Doc. A/Conf. 157/23, para. 8 (1993) (’[t]he international community should support the strengthening and promoting of democracy, development and respect for human rights’); Annual Report of the Secretary-General on the Work of the Organization, UN Doc. A/52/1, para. 22 et seq. (section of report entitled ’Governance, Human Rights and Democratization’); Case C-268/94, Portugese Republic v. Council of the European Union, 1996-12 ECJ Rep. 6177, 6217 (1996) (article 130u(2) of the EC Treaty ’demonstrates the importance to be attached to respect for human rights and democratic principles’); Case 10.956, Inter-Am. CHR (Mexico), reprinted in Annual Report of the Inter-American Commission on Human Rights 1993 (1994), p. 269 (’[t]he close relationship between representative democracy as a form of government and the exercise of the political rights so defined, also presupposes the exercise of other fundamental rights’); Final Declaration and Action Plan on Human Rights and Democracy of the Council of Europe’s Second Summit Meeting of Heads of State and Governments 1997 (1997), reprinted in International Human Rights Reports, 5 (1998), p. 581 (reaffirming ’attachment to the fundamental principles of the Council of Europe - pluralist democracy, respect for human rights, the rule of law’).
57. See Vienna Declaration and Programme of Action, UN Doc. A/Conf. 157/23, para. 8 (1993) (’[t]he international community should support the strengthening and promoting of democracy, development and respect for human rights’); Annual Report of the Secretary-General on the Work of the Organization, UN Doc. A/52/1, para. 22 et seq. (section of report entitled ’Governance, Human Rights and Democratization’); Case C-268/94, Portugese Republic v. Council of the European Union, 1996-12 ECJ Rep. 6177, 6217 (1996) (article 130u(2) of the EC Treaty ’demonstrates the importance to be attached to respect for human rights and democratic principles’); Case 10.956, Inter-Am. CHR (Mexico), reprinted in Annual Report of the Inter-American Commission on Human Rights 1993 (1994), p. 269 (’[t]he close relationship between representative democracy as a form of government and the exercise of the political rights so defined, also presupposes the exercise of other fundamental rights’); Final Declaration and Action Plan on Human Rights and Democracy of the Council of Europe’s Second Summit Meeting of Heads of State and Governments 1997 (1997), reprinted in International Human Rights Reports, 5 (1998), p. 581 (reaffirming ’attachment to the fundamental principles of the Council of Europe - pluralist democracy, respect for human rights, the rule of law’).
58. See Vienna Declaration and Programme of Action, UN Doc. A/Conf. 157/23, para. 8 (1993) (’[t]he international community should support the strengthening and promoting of democracy, development and respect for human rights’); Annual Report of the Secretary-General on the Work of the Organization, UN Doc. A/52/1, para. 22 et seq. (section of report entitled ’Governance, Human Rights and Democratization’); Case C-268/94, Portugese Republic v. Council of the European Union, 1996-12 ECJ Rep. 6177, 6217 (1996) (article 130u(2) of the EC Treaty ’demonstrates the importance to be attached to respect for human rights and democratic principles’); Case 10.956, Inter-Am. CHR (Mexico), reprinted in Annual Report of the Inter-American Commission on Human Rights 1993 (1994), p. 269 (’[t]he close relationship between representative democracy as a form of government and the exercise of the political rights so defined, also presupposes the exercise of other fundamental rights’); Final Declaration and Action Plan on Human Rights and Democracy of the Council of Europe’s Second Summit Meeting of Heads of State and Governments 1997 (1997), reprinted in International Human Rights Reports, 5 (1998), p. 581 (reaffirming ’attachment to the fundamental principles of the Council of Europe - pluralist democracy, respect for human rights, the rule of law’).
59. Report of the Secretary-General: Supplement to Reports on Democratization, UN Doc. A/51/761 (Annex), para. 3 (1996) (’the practice of democracy is increasingly regarded as essential to progress on a wide range of human concerns and to the protection of human rights’); Inter-American Commission on Human Rights, Ten Years of Activities 1971-1981 (1982), p. 337 (’the democratic context is the necessary element for the establishment of a political society where human rights can thrive to their fullest’).
60. Report of the Secretary-General: Supplement to Reports on Democratization, UN Doc. A/51/761 (Annex), para. 3 (1996) (’the practice of democracy is increasingly regarded as essential to progress on a wide range of human concerns and to the protection of human rights’); Inter-American Commission on Human Rights, Ten Years of Activities 1971-1981 (1982), p. 337 (’the democratic context is the necessary element for the establishment of a political society where human rights can thrive to their fullest’).
61. See, for instance, James Madison, The Federalist, nos. 39, 51, in Michael Kammen (ed.), The Origins of the American Constitution: A Documentary History (New York; Penguin Books, 1986), pp. 180-86, 202-12; Benjamin Constant, ’The Liberty of the Ancients Compared With That of the Moderns’, in Benjamin Constant, (trans.) Biancamaria Fontana, Political Writings (Cambridge: Cambridge University Press, 1988), p. 323; John Stuart Mill, ’Considerations on Representative Government’, in Utilitarianism, On Liberty, and Considerations on Representative Government (London: J. M. Dent, 1972), p. 171.
62. See, for instance, James Madison, The Federalist, nos. 39, 51, in Michael Kammen (ed.), The Origins of the American Constitution: A Documentary History (New York; Penguin Books, 1986), pp. 180-86, 202-12; Benjamin Constant, ’The Liberty of the Ancients Compared With That of the Moderns’, in Benjamin Constant, (trans.) Biancamaria Fontana, Political Writings (Cambridge: Cambridge University Press, 1988), p. 323; John Stuart Mill, ’Considerations on Representative Government’, in Utilitarianism, On Liberty, and Considerations on Representative Government (London: J. M. Dent, 1972), p. 171.
63. See, for instance, James Madison, The Federalist, nos. 39, 51, in Michael Kammen (ed.), The Origins of the American Constitution: A Documentary History (New York; Penguin Books, 1986), pp. 180-86, 202-12; Benjamin Constant, ’The Liberty of the Ancients Compared With That of the Moderns’, in Benjamin Constant, (trans.) Biancamaria Fontana, Political Writings (Cambridge: Cambridge University Press, 1988), p. 323; John Stuart Mill, ’Considerations on Representative Government’, in Utilitarianism, On Liberty, and Considerations on Representative Government (London: J. M. Dent, 1972), p. 171.
64. See, for instance, James Madison, The Federalist, nos. 39, 51, in Michael Kammen (ed.), The Origins of the American Constitution: A Documentary History (New York; Penguin Books, 1986), pp. 180-86, 202-12; Benjamin Constant, ’The Liberty of the Ancients Compared With That of the Moderns’, in Benjamin Constant, (trans.) Biancamaria Fontana, Political Writings (Cambridge: Cambridge University Press, 1988), p. 323; John Stuart Mill, ’Considerations on Representative Government’, in Utilitarianism, On Liberty, and Considerations on Representative Government (London: J. M. Dent, 1972), p. 171.
65. See, for instance, James Madison, The Federalist, nos. 39, 51, in Michael Kammen (ed.), The Origins of the American Constitution: A Documentary History (New York; Penguin Books, 1986), pp. 180-86, 202-12; Benjamin Constant, ’The Liberty of the Ancients Compared With That of the Moderns’, in Benjamin Constant, (trans.) Biancamaria Fontana, Political Writings (Cambridge: Cambridge University Press, 1988), p. 323; John Stuart Mill, ’Considerations on Representative Government’, in Utilitarianism, On Liberty, and Considerations on Representative Government (London: J. M. Dent, 1972), p. 171.
66. In approving an electoral monitoring mission at the end of a long and brutal civil war in Liberia, for example, the Security Council declared ’that the holding of free and fair elections as scheduled is an essential phase of the peace process in Liberia.’ SC Res. 1100 (1997). See also SC Res. 1116 (1997) (same).
67. Report of the Secretary-General: The Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa (1998), para. 77.
68. Ibid., para. 78.
69. For a collection of scholarly articles on both sides of the ’democratic peace’ controversy, see Michael E. Brown, Sean M. Lynn-Jones and Steven E. Miller (eds.), Debating the Democratic Peace (Cambridge, MA: MIT Press, 1996).
70. For an extended discussion of these points, see Remarks of Gregory H. Fox, ’Implementing Democratization: What Role for International Organizations?’ Proceedings of the American Society of International Law, 91 (1997), pp. 360-2.
71. UN Doc. A/CONF. 151/PC/WG.III/L.33/Dev. 1 (1992). See also, Jonas Ebbesson, ’Public Participation in International Environmental Law’, Yearbook of International Environmental Law, 8 (1997), pp. 51-97.
72. The United Nations Economic Commission for Europe, for example, has devoted an entire treaty to the participatory aspects of environmental law-making. Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, UN Doc. ECE/CEP/43 (1998). Article 1 provides that in order to protect the right of every person to live in a healthy environment, ’each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention’.
73. Gregory H. Fox, ’Strengthening the State’, Indiana Journal of Global Legal Studies, 7 (1999), pp. 35-77.
74. Kurt Taylor Gaubatz, ’Democratic States and Commitment in International Relations’, International Organization, 50 (1996), pp. 109-139.
75. Great Britain v. Costa Rica, 1923-24 Ann. Dig. Pub. Int’l L. Cas. 34, 37 (1923).
76. GA Res. 217 (III) (1948).
77. W. Michael Reisman, ’Sovereignty and Human Rights in International Law’, American Journal of International Law, 84 (1990), p. 869.
78. Ibid., p. 871 (arguing for the legality of the US invasion of Panama).
79. See Thomas M. Franck, The Empowered Self: Law and Society in the Age of Individualism (New York: Oxford University Press, 2000), pp. 272-3 (asserting Security Council authority to licence ’military rescue of democracy’, but insisting that international law does not ’permit any state, or any regional organization, to take enforcement of the democratic entitlement exclusively into its own hands’); Gregory H. Fox, ’The Right to Political Participation in International Law,’ Yale Journal of International Law, 17 (1992), p. 595 (’regimes that thwart the will of the people lack legitimacy’ to claim that the international community’s insistence on participatory rights implementation violates national sovereignty, but ’it is still an open question as to how far this principle should be extended’); though see, for instance, Reisman, ’Sovereignty and Human Rights’ (n. 48 above) advocating unilateral forcible measures; Lois Fielding, ’Taking the Next Step in the Development of New Human Rights: The Emerging Right of Humanitarian Assistance to Restore Democracy’, Duke Journal of Comparative and International Law, 5 (1995), pp. 329-77; Malvina Halberstam, ’The Copenhagen Document: Intervention in Support of Democracy’, Harvard Journal of International Law, 34 (1993), pp. 163-75; Anthony D’Amato, ’The Invasion of Panama Was a Lawful Response to Tyranny’, American Journal of International Law, 84 (1990), pp. 516-24.
80. See Thomas M. Franck, The Empowered Self: Law and Society in the Age of Individualism (New York: Oxford University Press, 2000), pp. 272-3 (asserting Security Council authority to licence ’military rescue of democracy’, but insisting that international law does not ’permit any state, or any regional organization, to take enforcement of the democratic entitlement exclusively into its own hands’); Gregory H. Fox, ’The Right to Political Participation in International Law,’ Yale Journal of International Law, 17 (1992), p. 595 (’regimes that thwart the will of the people lack legitimacy’ to claim that the international community’s insistence on participatory rights implementation violates national sovereignty, but ’it is still an open question as to how far this principle should be extended’); though see, for instance, Reisman, ’Sovereignty and Human Rights’ (n. 48 above) advocating unilateral forcible measures; Lois Fielding, ’Taking the Next Step in the Development of New Human Rights: The Emerging Right of Humanitarian Assistance to Restore Democracy’, Duke Journal of Comparative and International Law, 5 (1995), pp. 329-77; Malvina Halberstam, ’The Copenhagen Document: Intervention in Support of Democracy’, Harvard Journal of International Law, 34 (1993), pp. 163-75; Anthony D’Amato, ’The Invasion of Panama Was a Lawful Response to Tyranny’, American Journal of International Law, 84 (1990), pp. 516-24.
81. See Thomas M. Franck, The Empowered Self: Law and Society in the Age of Individualism (New York: Oxford University Press, 2000), pp. 272-3 (asserting Security Council authority to licence ’military rescue of democracy’, but insisting that international law does not ’permit any state, or any regional organization, to take enforcement of the democratic entitlement exclusively into its own hands’); Gregory H. Fox, ’The Right to Political Participation in International Law,’ Yale Journal of International Law, 17 (1992), p. 595 (’regimes that thwart the will of the people lack legitimacy’ to claim that the international community’s insistence on participatory rights implementation violates national sovereignty, but ’it is still an open question as to how far this principle should be extended’); though see, for instance, Reisman, ’Sovereignty and Human Rights’ (n. 48 above) advocating unilateral forcible measures; Lois Fielding, ’Taking the Next Step in the Development of New Human Rights: The Emerging Right of Humanitarian Assistance to Restore Democracy’, Duke Journal of Comparative and International Law, 5 (1995), pp. 329-77; Malvina Halberstam, ’The Copenhagen Document: Intervention in Support of Democracy’, Harvard Journal of International Law, 34 (1993), pp. 163-75; Anthony D’Amato, ’The Invasion of Panama Was a Lawful Response to Tyranny’, American Journal of International Law, 84 (1990), pp. 516-24.
82. See Thomas M. Franck, The Empowered Self: Law and Society in the Age of Individualism (New York: Oxford University Press, 2000), pp. 272-3 (asserting Security Council authority to licence ’military rescue of democracy’, but insisting that international law does not ’permit any state, or any regional organization, to take enforcement of the democratic entitlement exclusively into its own hands’); Gregory H. Fox, ’The Right to Political Participation in International Law,’ Yale Journal of International Law, 17 (1992), p. 595 (’regimes that thwart the will of the people lack legitimacy’ to claim that the international community’s insistence on participatory rights implementation violates national sovereignty, but ’it is still an open question as to how far this principle should be extended’); though see, for instance, Reisman, ’Sovereignty and Human Rights’ (n. 48 above) advocating unilateral forcible measures; Lois Fielding, ’Taking the Next Step in the Development of New Human Rights: The Emerging Right of Humanitarian Assistance to Restore Democracy’, Duke Journal of Comparative and International Law, 5 (1995), pp. 329-77; Malvina Halberstam, ’The Copenhagen Document: Intervention in Support of Democracy’, Harvard Journal of International Law, 34 (1993), pp. 163-75; Anthony D’Amato, ’The Invasion of Panama Was a Lawful Response to Tyranny’, American Journal of International Law, 84 (1990), pp. 516-24.
83. See Thomas M. Franck, The Empowered Self: Law and Society in the Age of Individualism (New York: Oxford University Press, 2000), pp. 272-3 (asserting Security Council authority to licence ’military rescue of democracy’, but insisting that international law does not ’permit any state, or any regional organization, to take enforcement of the democratic entitlement exclusively into its own hands’); Gregory H. Fox, ’The Right to Political Participation in International Law,’ Yale Journal of International Law, 17 (1992), p. 595 (’regimes that thwart the will of the people lack legitimacy’ to claim that the international community’s insistence on participatory rights implementation violates national sovereignty, but ’it is still an open question as to how far this principle should be extended’); though see, for instance, Reisman, ’Sovereignty and Human Rights’ (n. 48 above) advocating unilateral forcible measures; Lois Fielding, ’Taking the Next Step in the Development of New Human Rights: The Emerging Right of Humanitarian Assistance to Restore Democracy’, Duke Journal of Comparative and International Law, 5 (1995), pp. 329-77; Malvina Halberstam, ’The Copenhagen Document: Intervention in Support of Democracy’, Harvard Journal of International Law, 34 (1993), pp. 163-75; Anthony D’Amato, ’The Invasion of Panama Was a Lawful Response to Tyranny’, American Journal of International Law, 84 (1990), pp. 516-24.
84. See Thomas M. Franck, The Empowered Self: Law and Society in the Age of Individualism (New York: Oxford University Press, 2000), pp. 272-3 (asserting Security Council authority to licence ’military rescue of democracy’, but insisting that international law does not ’permit any state, or any regional organization, to take enforcement of the democratic entitlement exclusively into its own hands’); Gregory H. Fox, ’The Right to Political Participation in International Law,’ Yale Journal of International Law, 17 (1992), p. 595 (’regimes that thwart the will of the people lack legitimacy’ to claim that the international community’s insistence on participatory rights implementation violates national sovereignty, but ’it is still an open question as to how far this principle should be extended’); though see, for instance, Reisman, ’Sovereignty and Human Rights’ (n. 48 above) advocating unilateral forcible measures; Lois Fielding, ’Taking the Next Step in the Development of New Human Rights: The Emerging Right of Humanitarian Assistance to Restore Democracy’, Duke Journal of Comparative and International Law, 5 (1995), pp. 329-77; Malvina Halberstam, ’The Copenhagen Document: Intervention in Support of Democracy’, Harvard Journal of International Law, 34 (1993), pp. 163-75; Anthony D’Amato, ’The Invasion of Panama Was a Lawful Response to Tyranny’, American Journal of International Law, 84 (1990), pp. 516-24.
85. In his seminal article, Thomas Franck warns that efforts to implement the democratic entitlement need ’to be uncoupled, in the clearest fashion, from a long history of unilateral enforcement of a tainted, colonialist "civilizing" mission’; he thus urges that ’all states unambiguously renounce the use of unilateral, or even regional, military force to compel compliance. ’ Franck, ’Emerging Right to Democratic Governance’ (see n. 16 above) (emphasis in original).
86. See GA Res 2625 (XXV) (1970) (the ’Friendly Relations Declaration’).
87. Ann-Marie Slaughter, Andrew S. Tulumello and Stepan Wood, ’International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship’, American Journal of International Law, 92 (1998), p. 387.
88. See The Lotus Case (Fr. v. Turkey), 1927 PCIJ (ser. A) no. 10, p.18 (’[t]he rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law’). This presumption is embodied in the extraordinarily limited circumstances under which a State may opt out of a legal obligation binding under customary or treaty law. See Vienna Convention on the Law of Treaties, 23 May 1969, arts. 46-64, 1155 UNTS 331 (limited circumstances in which a treaty is deemed invalid, terminated or state performance is excused); Malcolm N. Shaw, International Law, 72 (4th edn., 1997) (newly created states, such as former colonies, are bound by all customary norms existing at the time of their independence); International Law Commission, Draft Articles on State Responsibility, UN Doc. A/CN.4/L.600 (2000), arts. 20-27 (limited circumstances excusing State acts otherwise deemed violative of legal obligations).
89. See The Lotus Case (Fr. v. Turkey), 1927 PCIJ (ser. A) no. 10, p.18 (’[t]he rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law’). This presumption is embodied in the extraordinarily limited circumstances under which a State may opt out of a legal obligation binding under customary or treaty law. See Vienna Convention on the Law of Treaties, 23 May 1969, arts. 46-64, 1155 UNTS 331 (limited circumstances in which a treaty is deemed invalid, terminated or state performance is excused); Malcolm N. Shaw, International Law, 72 (4th edn., 1997) (newly created states, such as former colonies, are bound by all customary norms existing at the time of their independence); International Law Commission, Draft Articles on State Responsibility, UN Doc. A/CN.4/L.600 (2000), arts. 20-27 (limited circumstances excusing State acts otherwise deemed violative of legal obligations).
90. See The Lotus Case (Fr. v. Turkey), 1927 PCIJ (ser. A) no. 10, p.18 (’[t]he rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law’). This presumption is embodied in the extraordinarily limited circumstances under which a State may opt out of a legal obligation binding under customary or treaty law. See Vienna Convention on the Law of Treaties, 23 May 1969, arts. 46-64, 1155 UNTS 331 (limited circumstances in which a treaty is deemed invalid, terminated or state performance is excused); Malcolm N. Shaw, International Law, 72 (4th edn., 1997) (newly created states, such as former colonies, are bound by all customary norms existing at the time of their independence); International Law Commission, Draft Articles on State Responsibility, UN Doc. A/CN.4/L.600 (2000), arts. 20-27 (limited circumstances excusing State acts otherwise deemed violative of legal obligations).
91. Article 2(4) of the United Nations Charter provides: ’All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations’. The International Court of Justice has described the prohibition on unilateral force as a jus cogens norm -that is, one from which no derogation is permitted even by treaty. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, 1986, ICJ 14, para. 190.
92. See, for example, D’Amato, ’The Invasion of Panama Was a Lawful Response to Tyranny’, (see n. 50 above).
93. Michael Byers and Simon Chesterman, ’"You the People": Pro-Democratic Intervention in International Law’, in Fox and Roth, Democratic Governance.
94. Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977), pp.86-108; Michael Walzer, ’The Moral Standing of States’, Philosophy and Public Affairs, 9 (1980), pp. 209-29; John Stuart Mill, ’A Few Words on Non-Intervention’, in J. S. Mill, Dissertations and Discussions, III (New York: Holt, 1874).
95. Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977), pp.86-108; Michael Walzer, ’The Moral Standing of States’, Philosophy and Public Affairs, 9 (1980), pp. 209-29; John Stuart Mill, ’A Few Words on Non-Intervention’, in J. S. Mill, Dissertations and Discussions, III (New York: Holt, 1874).
96. Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977), pp.86-108; Michael Walzer, ’The Moral Standing of States’, Philosophy and Public Affairs, 9 (1980), pp. 209-29; John Stuart Mill, ’A Few Words on Non-Intervention’, in J. S. Mill, Dissertations and Discussions, III (New York: Holt, 1874).
97. UN Charter, Art. 39.
98. S. C. Res. 841 (1993) (unanimous vote on Haiti economic sanctions); S.C. Res. 940 (1994) (12-0-2 vote on Haiti forcible measures); S.C. Res. 1132 (1997) (unanimous vote on Sierra Leone arms and oil embargo).
99. Acts of regional organizations are governed by Chapter VIII of the Charter. On the Liberian intervention, see Georg Nolte, ’Restoring Peace by Regional Action: International Legal Aspects of the Liberian Conflict’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 53 (1993), pp. 603-37.
100. The Guardian (London), 14 May 1996, p.10 (Croatia); John C. Pierce, ’The Hatian Crisis and the Future of Collective Enforcement of Democratic Governance’, Law and Policy in International Business, 27 (1996), pp. 477-512 (Haiti); Suellen Ratliff, ’UN Representation Disputes: a Case Study of Cambodia and a New Accreditation Proposal for the Twenty-First Century’, California Law Review, 87 (1999), pp. 1259-63 (Cambodia).
101. The Guardian (London), 14 May 1996, p.10 (Croatia); John C. Pierce, ’The Hatian Crisis and the Future of Collective Enforcement of Democratic Governance’, Law and Policy in International Business, 27 (1996), pp. 477-512 (Haiti); Suellen Ratliff, ’UN Representation Disputes: a Case Study of Cambodia and a New Accreditation Proposal for the Twenty-First Century’, California Law Review, 87 (1999), pp. 1259-63 (Cambodia).
102. The Guardian (London), 14 May 1996, p.10 (Croatia); John C. Pierce, ’The Hatian Crisis and the Future of Collective Enforcement of Democratic Governance’, Law and Policy in International Business, 27 (1996), pp. 477-512 (Haiti); Suellen Ratliff, ’UN Representation Disputes: a Case Study of Cambodia and a New Accreditation Proposal for the Twenty-First Century’, California Law Review, 87 (1999), pp. 1259-63 (Cambodia).
103. See William E. Connolly, The Terms of Political Discourse (Oxford: Blackwell, 3rd edn., 1993), pp. 29-35; W.B. Gallie, ’Essentially Contested Concepts’, Proceedings of the Aristotelian Society, 56 (1956), pp. 107-98.
104. See William E. Connolly, The Terms of Political Discourse (Oxford: Blackwell, 3rd edn., 1993), pp. 29-35; W.B. Gallie, ’Essentially Contested Concepts’, Proceedings of the Aristotelian Society, 56 (1956), pp. 107-98.
105. Joseph A. Schumpeter, Capitalism, Socialism and Democracy, 2nd edn. (New York: Harper, 1947), p. 269. For a critical view of Schumpeterian proceduralism as neglectful of the substance of democracy, see for example, C. B. Macpherson, The Life and Times of Liberal Democracy (Oxford: Oxford University Press, 1977).
106. Joseph A. Schumpeter, Capitalism, Socialism and Democracy, 2nd edn. (New York: Harper, 1947), p. 269. For a critical view of Schumpeterian proceduralism as neglectful of the substance of democracy, see for example, C. B. Macpherson, The Life and Times of Liberal Democracy (Oxford: Oxford University Press, 1977).
107. On this issue generally, see Thomas M. Franck, The Power of Legitimacy Among Nations (New York: Oxford University Press, 1990).
108. Fox, ’The Right to Political Participation’, (see n. 26 above).
109. Murphy, ’Democratic Legitimacy and Recognition’, (see n. 30 above).
110. This phenomenon is the subject of Brad R. Roth, Governmental Illegitimacy in International Law (New York: Oxford University Press, 1999).
111. Opinions of the International Conference on the Former Yugoslavia Arbitration Commission, reprinted in International Legal Materials, 31 (1992), p. 1497.
112. OSCE, Moscow Document (see n.11 above), OAS, Representative Government Resolution (see n. 10 above); MERCOSUR Protocol of Ushuaia (see n.1 above); Commonwealth, Cultures of Democracy (see n. 29 above).
113. OSCE, Moscow Document (see n.11 above), OAS, Representative Government Resolution (see n. 10 above); MERCOSUR Protocol of Ushuaia (see n.1 above); Commonwealth, Cultures of Democracy (see n. 29 above).
114. OSCE, Moscow Document (see n.11 above), OAS, Representative Government Resolution (see n. 10 above); MERCOSUR Protocol of Ushuaia (see n.1 above); Commonwealth, Cultures of Democracy (see n. 29 above).
115. OSCE, Moscow Document (see n.11 above), OAS, Representative Government Resolution (see n. 10 above); MERCOSUR Protocol of Ushuaia (see n.1 above); Commonwealth, Cultures of Democracy (see n. 29 above).
116. Agence France Presse, 30 May 1997 (Sierra Leone); Jane’s Foreign Report, 20 January 2000 (Cote D’Ivoire).
117. Agence France Presse, 30 May 1997 (Sierra Leone); Jane’s Foreign Report, 20 January 2000 (Cote D’Ivoire).
118. The most elaborate exception is the work of one of the authors of this article. Roth, Governmental Illegitimacy in International Law (see n. 68 above). For a detailed normative critique of the character of the democracy that the entitlement thesis embodies, see Susan Marks, The Riddle of all Constitutions: International Law, Democracy and the Critique of Ideology (Oxford: Clarendon Press, 2000).
119. The most elaborate exception is the work of one of the authors of this article. Roth, Governmental Illegitimacy in International Law (see n. 68 above). For a detailed normative critique of the character of the democracy that the entitlement thesis embodies, see Susan Marks, The Riddle of all Constitutions: International Law, Democracy and the Critique of Ideology (Oxford: Clarendon Press, 2000).
120. UN Charter, Art. 2 (7).
121. To meet such a burden, one must demonstrate a consistent pattern of state practice, combined with manifestations of a generally-held subjective sense of legal obligation (opinio juris) on the part of state actors. Ian Brownlie, Principles of Public International Law (Oxford: Clarendon Press, 1990), 4th edn, pp. 4-11. Where treaty provisions are concerned, appeal must be made to the ’ordinary meaning’ of the provisions in context, supplemented in case of ambiguity by the treaty’s preparatory work and circumstances of conclusion, as well as by any state practice indicating subsequent agreement of the parties on interpretation. Vienna Convention on the Law of Treaties (1969), Arts. 31-32.
122. GA Res. 45/150 (1990) (129-8-9).
123. GA Res. 45/151 (1990) (111-29-11); GA Res. 49/180 (97-57-14); GA Res. 54/168 (91-59-10). See also Boutros Boutros-Ghali, An Agenda for Democratization (New York: United Nations, 1996), pp. 1, 3 (the UN Secretary-General notes that ’individual states decide if and when to begin democratization’ and that the new emphasis on democratization ’does not imply a change’ in the traditional principle of non-intervention).
124. GA Res. 49/180 (1994).
125. See Stephen J. Schnably, ’Constitutionalism and Democratic Government in the Inter-American System," in Fox and Roth, Democratic Governance’, Malvina Halberstam, ’The Copenhagen Declaration: Intervention in Support of Democracy’, Harvard International Law Journal 34 (1993), p. 143; Francis G. Jacobs and Robin C. A. White, The European Convention on Human Rights, 2nd edn. (Oxford: Clarendon Press, 1996), pp. 269-76.
126. See Stephen J. Schnably, ’Constitutionalism and Democratic Government in the Inter-American System," in Fox and Roth, Democratic Governance’, Malvina Halberstam, ’The Copenhagen Declaration: Intervention in Support of Democracy’, Harvard International Law Journal 34 (1993), p. 143; Francis G. Jacobs and Robin C. A. White, The European Convention on Human Rights, 2nd edn. (Oxford: Clarendon Press, 1996), pp. 269-76.
127. See Stephen J. Schnably, ’Constitutionalism and Democratic Government in the Inter-American System," in Fox and Roth, Democratic Governance’, Malvina Halberstam, ’The Copenhagen Declaration: Intervention in Support of Democracy’, Harvard International Law Journal 34 (1993), p. 143; Francis G. Jacobs and Robin C. A. White, The European Convention on Human Rights, 2nd edn. (Oxford: Clarendon Press, 1996), pp. 269-76.
128. See n. 7 above.
129. See, for example, Toonen v. Australia, CCPR/C/50/D/488/1992 (31 March 1994), para. 8.7 (’the reference to ’sex’ in Art. 2, para. 1, and Art. 26 is to be taken as including sexual orientation’); Human Rights Committee, General Comment 14 (1984). para. 6 (the right to life under Art. 6 entails that ’[t]he production, testing, possession, deployment, and use of nuclear weapons should be prohibited and recognized as crimes against humanity’); Human Rights Committee, General Comment 24 (1994), para. 18 (a reservation determined by the Committee to be impermissible ’will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation’).
130. See, for example, Toonen v. Australia, CCPR/C/50/D/488/1992 (31 March 1994), para. 8.7 (’the reference to ’sex’ in Art. 2, para. 1, and Art. 26 is to be taken as including sexual orientation’); Human Rights Committee, General Comment 14 (1984). para. 6 (the right to life under Art. 6 entails that ’[t]he production, testing, possession, deployment, and use of nuclear weapons should be prohibited and recognized as crimes against humanity’); Human Rights Committee, General Comment 24 (1994), para. 18 (a reservation determined by the Committee to be impermissible ’will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation’).
131. See n. 8 above. 25 out of 53 member states on the UN Human Rights Commission dissented or abstained on the ’right to democracy’ language of Resolution 1999/57, though none dissented and only two (China and Cuba) abstained on the resolution as a whole. UN Doc. E/CN.4/1999/SR.57 (April 27, 1999).
132. The Indian representative commented that the ’right to democracy’ language ’tended needlessly to politicize an essentially promotional concept, and raised questions and legal issues that found little support in international human rights instruments’. India affirmed that there was ’no prescriptive or single model of democracy, and that all peoples had the right freely to determine their own political and constitutional systems in accordance with their right of self-determination’, adding that democracy, as a form of government that arises from the will of the people, cannot ’be imposed, especially from the outside’. Ibid., paras. 8-9; see also ibid., paras. 15 (Pakistan), 20 (Mexico), 22-23 (Cuba), 29 (Russian Federation), 40 (Indonesia), 42 (China).
133. The Indian representative commented that the ’right to democracy’ language ’tended needlessly to politicize an essentially promotional concept, and raised questions and legal issues that found little support in international human rights instruments’. India affirmed that there was ’no prescriptive or single model of democracy, and that all peoples had the right freely to determine their own political and constitutional systems in accordance with their right of self-determination’, adding that democracy, as a form of government that arises from the will of the people, cannot ’be imposed, especially from the outside’. Ibid., paras. 8-9; see also ibid., paras. 15 (Pakistan), 20 (Mexico), 22-23 (Cuba), 29 (Russian Federation), 40 (Indonesia), 42 (China).
134. Gregory H. Fox and Georg Nolte, ’Intolerant Democracies,’ Harvard International Law Journal, 36 (1995), p. 1.
135. Samuel Huntington, The Third Wave: Democratization in the Late Twentieth Century (Norman, OK: University of Oklahoma Press, 1991), pp. 5-13.
136. Ibid, p. 10.
137. The constitution of Democratic Kampuchea indeed dutifully provided for an elected legislature (Arts. 5-7), proclaimed ’complete equality among all Kampuchean people’ (Art. 13) and described various aspects of Cambodian society as ’democratic’ in three separate articles (Arts. 1, 13 and 21). Reprinted in François Ponchaud, Cambodia Year Zero (New York: Holt, Rhinehart & Winston, 1978), p. 199.
138. For a fascinating discussion of how customary norms are shaped by asymmetrical power structures, see Michael Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law (Cambridge: Cambridge University Press, 1999).
139. Fox and Nolte, ’Intolerant Democracies’, (see n. 83 above).
140. The Secretary-General has observed, ’democratization must begin with an effort to create a culture of democracy - a political culture, which is fundamentally non-violent and in which no one party or group expects to win or lose all the time’. Support by the United Nations System of the Efforts of Governments to Promote and Consolidate New or Restored Democracies, UN Doc. A/51/761 (Annex), at 7 (1996).
141. First Report of the United Nations Observer Group for the Verification of the Elections in Haiti, UN Doc. A/45/870 (Annex), p. 9 (1990).
142. The myriad of international sanctions against the apartheid regime are detailed in I.E. Sagay, The Southern African Situation and the Eventual Triumph of International Law (Lagos, Nigeria: Nigerian Institute of Advanced Legal Studies, 1991), pp. 34-6. In a 1991 resolution the General Assembly set out the conditions for South Africa’s re-entry into international society: ’only the total eradication of apartheid and the establishment of a non-racial, democratic society based on majority rule, through the full and free exercise of adult suffrage by all the people in a united and non-fragmented South Africa, can lead to a just and lasting solution to the situation in South Africa’. GA Res. 46/130 (1991).
143. James Crawford, ’Democracy and the Body of International Law,’ in Fox and Roth, Democratic Governance; Byers and Chesterman, ’You the People’ (n. 57 above).
144. James Crawford, ’Democracy and the Body of International Law,’ in Fox and Roth, Democratic Governance; Byers and Chesterman, ’You the People’ (n. 57 above).
145. See text accompanying notes 41-45.
146. ’Because democratic Governments are freely chosen by their citizens and held accountable through periodic and genuine elections and other mechanisms, they are more likely to promote and respect the rule of law, respect individual and minority rights, cope effectively with social conflict, absorb migrant populations and respond to the needs of marginalized groups.’ Support by the United Nations System, p. 6 (see n. 89 above).
147. Susan Marks, ’The End of History? Reflections on Some International Legal Theses’, European Journal of International Law, 8 (1997), pp. 449-77.
148. Proceedings of the American Society of International Law, 11 (1917), p. 2.
149. Ibid. p. 5. Root also described China as ’throwing off the domination of the Manchu [and] striving to accustom her long-suffering and submissive millions to the idea of a constitutional right’. Ibid.
150. Ibid. p. 5. Root also described China as ’throwing off the domination of the Manchu [and] striving to accustom her long-suffering and submissive millions to the idea of a constitutional right’. Ibid.
151. Ibid, p. 7.
152. Ibid.