Bringing Democracy into International Law

The word "democracy" does not appear in the Charter of the United Nations, nor was it mentioned in the Covenant of the League of Nations. None of the standard textbooks on international law includes chapters on democracy. The International Court of Justice has not based any of its decisions on the legal application of democratic principles. If one were to look no further than these pillars of international law, one might conclude that democracy is not relevant. Yet the Vienna Declaration and Programme of Action adopted by the 1993 World Conference on Human Rights asserted in paragraph 8 of Section I, "Democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing. . . . The international community should support the strengthening and promoting of democracy, development and respect for human rights and fundamental freedoms in the entire world." Though a nonbinding instrument, this Declaration represents a clear indication of the direction of international opinion and the development of international law.

Twice in the twentieth century the international community toyed with the notion of making democracy a norm of international law. The first time was when Woodrow Wilson described America's entry into World War I as a crusade to make the world "safe for democracy." Victors, however, earn the right to redraft the rules. The vindictive Treaty of Versailles divided the spoils and hobbled the vanquished, but it stopped well short of enshrining democracy as the required means of domestic political organization. The furthest it ventured in this direction was to put forward the concept of self-determination as a means of dismantling moribund empires.

At the conclusion of World War II, the defeat of fascism again created an opportunity for the international community to make democracy a norm of international law. As will be elaborated below, some tentative steps in this direction were taken in the process of defining certain civil and political rights and in drafting the constitutive instruments of several international organizations. It may be argued that this formative period of modern international law did indeed plant the idea that democracy is an essential element of human rights, but the Cold War intruded far too quickly for the notion to take root in international law.

The conclusion of the Cold War has afforded the international community its third chance. There is strong evidence over the past decade pointing to the incorporation of democracy in international law, which develops through a process of international consensus, or at least widespread agreement. The expression of this incorporation varies from "the right to democracy" to "democratic entitlement" to "the right to democratic governance." This norm is both articulated in various regional and global instruments and increasingly demonstrated in international practice by such policies as promoting democracy abroad, making democracy a qualification for membership in certain regional organizations, establishing democratic conditionality for development cooperation, and, in a limited number of cases, defending democracy through collective security mechanisms. This post-Cold War trend was first described by Thomas Franck and James Crawford in their seminal papers on the subject in the early 1990s, and useful definitional work was carried out by Jack Donnelly. ¹ This essay attempts to build on that body of work.

Constitutive International Instruments

While the concept of democracy did not find its way into the UN Charter, it did figure in other constitutive international instruments of the postwar period. The most notable of these is the 1948 Charter of the Organization of American States (OAS), whose Preamble espouses the conviction that "representative democracy is an indispensable condition for the stability, peace and development of the region." The Preamble goes on to place the system of individual liberty and social justice "within the framework of democratic institutions." The OAS Charter claims as one of its essential purposes "to promote and consolidate representative democracy, with due respect for the principle of non-intervention."

The Americas may have had a special affinity for democracy, but it was also on the minds of the drafters of global...