International law and the entitlement to democracy after war

Global Governance

Volumn 9, Issue 2, 2003, Pages 179-197

  Fox, Gregory H ^a  

^a WAYNE STATE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 0038277053     PISSN: 10752846     EISSN: None     Source Type: Journal    
DOI: 10.1163/19426720-00902007     Document Type: Article

References (60)

1. Lasa Oppenheim, International Law, vol. 1 (London: Longmans, Green, 1905), p. 403.
2. One of many excellent discussions of postconflict reconstruction missions is Elizabeth M. Cousens and Chetan Kumar, eds., Peacebuilding as Politics: Cultivating Peace in Fragile Societies (Boulder: Lynne Rienner, 2001).
3. Report of the Panel on United Nations Peace Operations, UN Doc. A/55/305-S/2000/809 (2000): par. 13.
4. UNAMA (Afghanistan, 2002-present); UNAVEM III (Angola, 1991-1995); UNAVEM III (Angola, 1995-1997); MONUA (Angola, 1997-1999); MINURCA (Central African Republic, 1998-2000); ONUMUZ (Mozambique, 1992-1994); UNSOM I (Somalia, 1992-1993); UNSOM II (Somalia, 1993-1995); ONUSAL (El Salvador, 1991-1995); MINUGA (Guatemala, 1997); UNTAC (Cambodia, 1992-1993); UNMOT (Tajikistan, 1994-2000); UNTAES (Croatia, 1996-1998); MONUC (Congo, 2000-present); UNAMSIL (Sierra Leone, 1999-present); UNTAET (East Timor, 1999-present); UNMIBH (Bosnia, 1995-present).
5. For a general discussion, see Gregory H. Fox and Brad R. Roth, eds., Democratic Governance and International Law (New York: Cambridge University Press, 2000). The literature on multilateral democracy promotion is now vast. See Michael Cox, G. John Ikenberry, and Takashi Inoguchi, eds, American Democracy Promotion: Impulses, Strategies, and Impacts (New York: Oxford University Press, 2000); Thomas Carothers, Aiding Democracy Abroad: The Learning Curve (Washington, D.C.: Carnegie Endowment for International Peace, 1999); Jean Grugel, ed., Democracy Without Borders: Transnationalization and Conditionality in New Democracies (London: Routledge, 1999).
6. For a general discussion, see Gregory H. Fox and Brad R. Roth, eds., Democratic Governance and International Law (New York: Cambridge University Press, 2000). The literature on multilateral democracy promotion is now vast. See Michael Cox, G. John Ikenberry, and Takashi Inoguchi, eds, American Democracy Promotion: Impulses, Strategies, and Impacts (New York: Oxford University Press, 2000); Thomas Carothers, Aiding Democracy Abroad: The Learning Curve (Washington, D.C.: Carnegie Endowment for International Peace, 1999); Jean Grugel, ed., Democracy Without Borders: Transnationalization and Conditionality in New Democracies (London: Routledge, 1999).
7. For a general discussion, see Gregory H. Fox and Brad R. Roth, eds., Democratic Governance and International Law (New York: Cambridge University Press, 2000). The literature on multilateral democracy promotion is now vast. See Michael Cox, G. John Ikenberry, and Takashi Inoguchi, eds, American Democracy Promotion: Impulses, Strategies, and Impacts (New York: Oxford University Press, 2000); Thomas Carothers, Aiding Democracy Abroad: The Learning Curve (Washington, D.C.: Carnegie Endowment for International Peace, 1999); Jean Grugel, ed., Democracy Without Borders: Transnationalization and Conditionality in New Democracies (London: Routledge, 1999).
8. For a general discussion, see Gregory H. Fox and Brad R. Roth, eds., Democratic Governance and International Law (New York: Cambridge University Press, 2000). The literature on multilateral democracy promotion is now vast. See Michael Cox, G. John Ikenberry, and Takashi Inoguchi, eds, American Democracy Promotion: Impulses, Strategies, and Impacts (New York: Oxford University Press, 2000); Thomas Carothers, Aiding Democracy Abroad: The Learning Curve (Washington, D.C.: Carnegie Endowment for International Peace, 1999); Jean Grugel, ed., Democracy Without Borders: Transnationalization and Conditionality in New Democracies (London: Routledge, 1999).
9. The term originates with Thomas M. Franck in "The Emerging Right to Democratic Governance," American Journal of International Law 86, no. 1 (1992): 46.
10. United Nations Charter, art. 1(5).
11. Universal Declaration of Human Rights, GA Res. 217 (III), art. 21 (1948).
12. Gregory H. Fox and Brad R.Roth, "Democracy and International Law," Review of International Studies 27, no. 2 (2001): 327-352.
13. CSCE Charter of Paris for a New Europe, 30 ILM 190, 193 (1990).
14. African Commission on Human Rights, Resolution on the Military, Eighth Annual Activity Report of the Commission on Human and Peoples' Rights, 1994-1955, p. 39.
15. Inter-American Democratic Charter (11 September 2001), available online at http://www.oas.org/OASpage/eng/Documents/Democractic_Charter.htm.
16. Legal Aspects of Problems of Representation in the United Nations, UN Doc. S/1466 (1950).
17. An Agenda for Democratization, UN Doc. A/51/761 (1996), par. 15, 45.
18. W. Michael Reisman, "Sovereignty and Human Rights in Contemporary International Law," in Fox and Roth, Democratic Governance and International Law, p. 243.
19. SC Res. 940 (1994) (Haiti); UN Doc. S/PRST/1998/5 (statement by president of the Security Council welcoming the removal of the Sierra Leone junta).
20. Preliminary Report of the Commonwealth Observer Group to the Presidential Election in Zimbabwe 9-10 March 2002, available online at http://www.thecommonwealth.org/dynamic/press_office/display.asp?id=425&type= press&cat=53.
21. See the comprehensive discussion in Gregory H. Fox, "The Right to Political Participation in International Law," in Fox and Roth, Democratic Governance and International Law, p. 48. Article 25 of the Covenant on Civil and Political Rights is typical: 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.
22. Ibid., p. 69.
23. Ibid., p. 61. The European Commission and Court have, by far, heard the greatest number of election cases of any human rights tribunals. Their decisions may be fairly generalized to other human rights systems because the European bodies have been far more aggressive in holding national practices of all kinds to be contrary to treaty standards. That they were unwilling to so hold in these areas suggests that other human rights bodies will also defer to state judgments as to how a fair electoral system is to be constructed.
24. Gitonas and Others v. Greece, Eur. Ct. H.R. 1997-IV (1997), par. 44.
25. These rights are provided, for example, in Articles 18, 19, 21, 22, 12 and 26, respectively, of the International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171.
26. Larry Diamond, "Toward Democratic Consolidation," Journal of Democracy 5 (1994): 4-17.
27. The Panel on United Nations Peace Operations made this point emphatically: "Free and fair" elections should be viewed as part of broader efforts to strengthen governance institutions. Elections will be successfully held only in an environment in which a population recovering from war comes to accept the ballot over the bullet as an appropriate and credible mechanism through which their views on government are represented. Elections need the support of a broader process of democratization and civil society building that includes effective civilian governance and a culture of respect for basic human rights, lest elections merely ratify a tyranny of the majority or be overturned by force after a peace operation leaves. UN Doc. A/55/305-S/2000/809, par. 38 (2000).
28. The offices are currently operating in Angola, Burundi, Central African Republic, Guinea Bissau, Liberia, and Somalia.
29. See the list in note 4.
30. The exception is the MINURCA mission to Central African Republic. The recently approved mission to Afghanistan, UNAMA, is also an exception, but this will almost certainly change once the transitional process is further along. Because the Bonn agreements set out a multitiered transition, the first phase of which did not involve nationwide elections, UNAMA could not include elections as part of its mandate. But perhaps learning from experiences such as East Timor, UNAMA is structured quite consciously to maximize local Afghan participation in other ways. In his report setting out the structure of the new mission, the secretary-general stated that "UNAMA should aim to bolster Afghan capacity (both official and non-governmental), relying on as limited an international presence and on as many Afghan staff as possible, and using common support services, thereby leaving a light expatriate 'Footprint.'" Report of the Secretary-General, The Situation in Afghanistan and Its Implications for International Peace and Security, UN Doc. A/56/875-S/2002/278, par. 98(d) (18 March 2002); see also, ibid. par. 107(e) ("All such United Nations actors would be expected to make a transition to a predominant reliance on qualified national personnel, from all ethnic groups and including women, and would be expected to initiate internal capacity-development activities to achieve that end"); SC Res. 1401 (28 March 2002) ("although humanitarian assistance should be provided wherever there is a need, recovery of reconstruction assistance ought to be provided though the Afghan Interim Administration and its successors, and implemented effectively where local authorities contribute to the maintenance of a secure environment and demonstrate respect for human rights").
31. The exception is the MINURCA mission to Central African Republic. The recently approved mission to Afghanistan, UNAMA, is also an exception, but this will almost certainly change once the transitional process is further along. Because the Bonn agreements set out a multitiered transition, the first phase of which did not involve nationwide elections, UNAMA could not include elections as part of its mandate. But perhaps learning from experiences such as East Timor, UNAMA is structured quite consciously to maximize local Afghan participation in other ways. In his report setting out the structure of the new mission, the secretary-general stated that "UNAMA should aim to bolster Afghan capacity (both official and non-governmental), relying on as limited an international presence and on as many Afghan staff as possible, and using common support services, thereby leaving a light expatriate 'Footprint.'" Report of the Secretary-General, The Situation in Afghanistan and Its Implications for International Peace and Security, UN Doc. A/56/875-S/2002/278, par. 98(d) (18 March 2002); see also, ibid. par. 107(e) ("All such United Nations actors would be expected to make a transition to a predominant reliance on qualified national personnel, from all ethnic groups and including women, and would be expected to initiate internal capacity-development activities to achieve that end"); SC Res. 1401 (28 March 2002) ("although humanitarian assistance should be provided wherever there is a need, recovery of reconstruction assistance ought to be provided though the Afghan Interim Administration and its successors, and implemented effectively where local authorities contribute to the maintenance of a secure environment and demonstrate respect for human rights").
32. The exception is the MINURCA mission to Central African Republic. The recently approved mission to Afghanistan, UNAMA, is also an exception, but this will almost certainly change once the transitional process is further along. Because the Bonn agreements set out a multitiered transition, the first phase of which did not involve nationwide elections, UNAMA could not include elections as part of its mandate. But perhaps learning from experiences such as East Timor, UNAMA is structured quite consciously to maximize local Afghan participation in other ways. In his report setting out the structure of the new mission, the secretary-general stated that "UNAMA should aim to bolster Afghan capacity (both official and non-governmental), relying on as limited an international presence and on as many Afghan staff as possible, and using common support services, thereby leaving a light expatriate 'Footprint.'" Report of the Secretary-General, The Situation in Afghanistan and Its Implications for International Peace and Security, UN Doc. A/56/875-S/2002/278, par. 98(d) (18 March 2002); see also, ibid. par. 107(e) ("All such United Nations actors would be expected to make a transition to a predominant reliance on qualified national personnel, from all ethnic groups and including women, and would be expected to initiate internal capacity-development activities to achieve that end"); SC Res. 1401 (28 March 2002) ("although humanitarian assistance should be provided wherever there is a need, recovery of reconstruction assistance ought to be provided though the Afghan Interim Administration and its successors, and implemented effectively where local authorities contribute to the maintenance of a secure environment and demonstrate respect for human rights").
33. Lusaka Protocol, Annex 7, art. 1 (15 November 1994), available online at http://www.usip.org/library/pa/angola/lusaka_11151994.html.
34. Agreement on a Comprehensive Political Settlement of the Cambodia Conflict, Annex 5, art. 4 (23 October 1991), available online at http://www.usip.org/library/pa/cambodia/comppol_10231991_annex5.html.
35. Agreement on the Strengthening of Civilian Power and on the Role of the Armed Forces in a Democratic Society, par. 56-58 (19 September 1996), available online at http://www.usip.org/library/pa/guatemala/guat_960919.html.
36. Ibid., par. 77.
37. Fox, "The Right to Political Participation in International Law," p. 84.
38. Freedom House, Freedom in the World 2001-2002: The Democracy Gap (2002), available online at http://www.freedomhouse.org/research/freeworld/2002/essay2002.pdf.
39. Marina Ottaway, "nation Building," Foreign Policy (september-october 2002), p. 16.
40. Jack Snyder, From Voting to Violence: Democratization and National Conflict (New York: Norton, 2000), pp. 16, 316.
41. Ibid., p. 316.
42. Ibid., p. 321.
43. Ibid., pp. 322-327.
44. As noted, the Universal Declaration provides that "the will of the people shall be the basis of the authority of government." The legal regime of decolonization, closely related to democratization in its notions of autonomous self-government, expressed an even blunter universalism: "Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence." Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Resolution 1514, par. 3 (1960).
45. Snyder, From Voting to Violence, pp. 322-327, 328.
46. For further discussion of the legal objections to such alternatives to democratization within existing borders, see Gregory H. Fox, "Strengthening the State," Indiana Journal of Global Legal Studies 1, no. 1 (1999): 35-77.
47. John Stuart Mill, Considerations on Representative Government (1861; reprint, Amherst, N.Y.: Prometheus, 1991), p. 90.
48. John Rawls, A Theory of Justice (Cambridge: Belknap Press, 1971), pp. 8, 457.
49. Robert A. Dahl, Polyarchy (New Haven: Yale University Press, 1971), p. 210.
50. Abram Chayes and Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Regimes (Cambridge: Harvard University Press, 1998).
51. Ibid., p. 15.
52. See Harold Hongju Koh, "Bringing International Law Home," Houston Law Review 35, no. 2 (1998): 623-680; Harold Hongju Koh, "Why Do Nations Obey International Law?" Yale Law Journal 106, no. 5 (1997): 2599-2659.
53. See Harold Hongju Koh, "Bringing International Law Home," Houston Law Review 35, no. 2 (1998): 623-680; Harold Hongju Koh, "Why Do Nations Obey International Law?" Yale Law Journal 106, no. 5 (1997): 2599-2659.
54. Koh, "Bringing International Law Home," p. 625.
55. Koh, "Why Do Nations Obey International Law?" p. 2646.
56. Ibid., p. 2656.
57. Michael Doyle notes that the UNTAC mission in Cambodia "helped open a space for hundreds of new, indigenous Cambodian NGOs." Michael Doyle, "Peacebuilding in Cambodia: Legitimacy and Power," in Cousens and Kumar, Peacebuilding as Politics, pp. 89, 106.
58. Fox, "Strengthening the State."
59. Declaration on the Granting of Independence to Colonial Countries and Peoples, GA res. 1514 (XV), 15 UN GAOR, Supp. (no. 16) at 66, UN doc. A/4684 (1961).
60. John Springhall, Decolonization Since 1945: The Collapse of European Overseas Empires (New York: Palgrave, 2001).