VIEWS: 8 PAGES: 3 POSTED ON: 9/12/2011
Cristine Delaney November 2, 2007 Towards an Emerging Right to Democracy: a legal and practical framework Relevant Background: Democracy has been a pillar of the European system of human rights since its inception. Over the last twenty years the UN regime has joined this explicit promotion of democracy. Though there is no reference to a specific “right” to democracy, nor does the word “democracy” appear anywhere in the UN Charter, it has been argued by the former Secretary General that democracy is one of the founding principles and primary commitments of the UN. However, democracy is a contentious issue in contemporary politics and its scope and legitimacy are not necessarily strongly grounded. In light of the current push to “spread” democracy, or perhaps to “implant” democracy, or even to “foster” democracy, the problem of defining the concept seems particularly urgent. Research Question 1.) Is there an emerging right to democracy in international human rights law and can we define the parameters of democracy through human rights law? What is democracy? Is it an independent concept or can we structure an understanding of it through various rights (right to vote, representative government, effective participation, non-discrimination, protection of economic, social, and cultural rights)? 2.) Assuming that there is a right to democracy and the parameters can be adequately defined, what is the legal, theoretical, and political status of these legal tenets in actual democratic state practice? Legal: What rights, when taken in context with one another, construct this “right” to democracy? o Common Art. 1 of ICCPR/CESCR, Art. 25 ICCPR, Art. 2 ICCPR, Art. 7, 8 CEDAW, Art. 7 ILO 169 (ETC…) o case law concerning the stipulation of “necessary in a democratic society” (issues of pluralism, freedom of expression etc) o a discussion of methods used to incorporate international law into national law Theoretical: What role does democracy play in the human rights regime? o Pillar of the Council of Europe o Emerging principle in the UN (note Human Rights Commission resolutions, OHCHR, Secretary General) Political: How does “democracy” in practice square with “democracy” in theory? o A study of the USA-style democracy, focusing on a discussion regarding the fact that it is often the legislative body that blocks the signature and ratification of international human rights documents o A study of Norway’s democratic attempt to incorporate international norms into national law (Human Rights Act 1999), used as a comparator to USA- style democracy This thesis is working on two thematic questions If democracy is a necessary (though admittedly not sufficient) condition for human rights, then where is the legitimate source of law? The human rights regime is primarily grounded in international (including regional) institutions instituting a top- down structure of law. In contrast, democracy is predicated on the notion of bottom- up decision making and thus legitimacy is based with the will of the constituency. 1 This is where the political discussion of USA democracy versus Norway democracy will really bring to light issues of the legitimacy of law. The second main thematic question overlaps the first, but is somewhat distinct in nature; it has to do with lex lata. The question is based in a methodological inquiry. What is the law? Firstly, the first thesis question would deal with the textual reality of law, a very new-legal-positivist view. The second thesis question investigates the legitimacy of the first. How the concept of democracy works politically has significant repercussions for the validity of a legal positivist view of an emerging right to democracy.2 Overall Structure: The thesis will be broken up into two main sections, with the thematic questions being woven within these two sections. The first section will rely mainly on a legal positivist/international legal process/international relations method (this will be clarified later). It will show that there is an emerging right to democracy promoted through non- binding elements of the human rights regime and grounded in a dynamic interpretation of binding human rights law. Using European case law to outline the legitimate limits to democratic decision-making in the framework of human rights and simultaneously outline the 1 “While there is international consensus that democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and to participate fully in all aspects of their lives, it is also accepted that there is no single universal model of democracy. Different societies may have reached different stages of democratic development and there are several routes to the democratic apex. Even mature democracies are constantly engaged in a dynamic exercise to maintain the right democratic balance. This being said, experience has proven that for all its ambiguities and elasticity, democracy is the best hope for a political order in which all human rights – civil, cultural, economic, political and social – can be effectively respected, protected and promoted.” (www.ohchr.org/english/issues/democracy/challenges.htm) 2 note methodological views have been taken primarily from Slaughter, Anne-Marie & Ratner, Steven “Symposium on Method in International Law”, The American Journal of International Law 93 (2) 1999ss. 291- 423. These will be clarified later through the use of other texts. legitimate limits to the framework of human rights in evaluating the democratic decisions of member states. The second main section will be the political/liberal international relations theory analysis of the US and Norway. These two examples will give the legal analysis of an emerging right to democracy practical depth. The overall aim of the thesis is to place the concept of democracy in the context of the contemporary human rights regime. Once this can be achieved, it can be used as a tool for understanding and legitimately evaluating the current political debates and policies relating to the “spread” of democracy around the world. This last debate is outside of the scope of this thesis but shows the utility and timeliness of addressing the thesis topic. Scope and limitations: The two case studies will necessarily be limited in scope due to 20,000 word limit. The crux of the argument lies in the first thesis question and thus the legal analysis will be the most in- depth part of the thesis. However, I think it is possible to succinctly present both case studies if they are limited to the scope delineated by the legal analysis.