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Democracy (International Law)

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  1. Introduction
  2.  
  3. Researchers on “democracy” in international law have to make an important methodological choice: They can examine the “democracy norm” from the perspective only of international law (state practice, treaty norms, international law texts, etc.) or they can locate their research within a wider body of social science literature, in particular considering the normative conception of democracy in political theory (electoral, deliberative, consociational, etc.) and the practice of democracy and democracy promotion identified in political science. The latter is recommended since the idea of democracy in international law did not emerge ex nihilo. To be meaningful, it seems reasonable to conclude that the international law conception of democracy must maintain its family relationship with the idea of democracy that has emerged in political thought and practice over time—after all no agreed definition of democracy exists in international law. For researchers engaged in a critique of doctrine and practice from the perspective of democratic legitimacy, more in-depth reading will be required and reading of the original materials is essential. This article introduces researchers to the key writings in the English language on democracy in international law and relevant readings that inform the debates in international law in cognate disciplines. While certain democratic elements can be found in international doctrine and practice over time, “democracy” as an identifiable principle of the international law order can be dated back to the 1990s and the ending of the Cold War. While the status and content of the “democracy norm” in international law remains contested, the influence of democratic ideals can be seen in a number of areas relating to legitimate political authority at the level of the state and increasingly the (democratic) legitimacy of international organizations and institutions. The principle of democracy is seen to have an influence in the functioning of international law and the practice of international relations and international governance: establishing a criterion for legitimate and lawful government, giving form to the right of peoples to political self-determination, providing a context for the enjoyment of human rights and fundamental freedoms, and establishing the basis for peaceable and nonpeaceable interstate relations. Moreover, following the globalization and fragmentation of governance functions, concern has grown increasingly with respect to the “democratic deficit” experienced by citizens at the level of the state, leading to proposals for the democratization of global governance and a literature that examines the extent to which a democratic state should accept the authority of nondemocratic international law norms.
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  5. Democracy and International Law
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  7. No agreed definition of “democracy” is found in political theory or political science. Nor is there any agreed understanding of the term in international law. Held 2009 is a good introduction to the idea of democracy in political theory. In terms of democracy and international law, few works deal systematically with the influence of democracy on international law doctrine and practice. Fox and Roth 2000 and Burchill 2006 are both excellent introductions to the subject. Crawford 1993 is a good example of how the question emerged on the agenda of international lawyers. Wouters, et al. 2003 provides a more up-to-date consideration of the issue. Fox 2013 is the best statement of the actual international law on democracy.
  8.  
  9. Burchill, Richard, ed. Democracy and International Law. Aldershot, UK: Ashgate, 2006.
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  11. Collection of the leading essays on democracy and international law from a number of perspectives (mostly also available elsewhere). Useful reference work.
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  13. Crawford, James. “Democracy and International Law.” British Yearbook of International Law 64.1 (1993): 113–133.
  14. DOI: 10.1093/bybil/64.1.113Save Citation »Export Citation »E-mail Citation »
  15. Good introduction to the place of democracy in international law doctrine and practice, published at a time when the issue was moving onto the research agenda of international lawyers. Crawford identifies a “pro-democratic” shift in international law.
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  17. Fox, Gregory. “Democracy, Right to, International Protection.” In Max Planck Encyclopedia of Public International Law. Edited by Rüdiger Wolfrum. New York: Oxford University Press, 2013.
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  19. Detailed and well-structured exposition of the doctrine and practice relating to democracy in international law. An essential starting point for anyone writing about democracy in international law.
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  21. Fox, Gregory H., and Brad R. Roth, eds. Democratic Governance and International Law. New York: Cambridge University Press, 2000.
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  23. Collection of the more important and interesting writings on democratic legitimacy (mostly also available elsewhere). Useful and reflective introduction by the editors. Essential reference work.
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  25. Held, David. Models of Democracy. 3d ed. Cambridge, UK: Polity, 2009.
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  27. Standard introduction to the idea of democracy in political thought. Essentially a student text, but provides a useful overview and introduction to the various ideas of democracy.
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  29. Wouters, Jan, Bart de Meester, and Cedric Ryngaert. “Democracy and International Law.” Netherlands Yearbook of International Law 34 (2003): 139–197.
  30. DOI: 10.1017/S0167676800001458Save Citation »Export Citation »E-mail Citation »
  31. Reviews the position of democracy in international law, with particular regard to the doctrine and practice related to recognition and membership in international organizations, as well as pro-democracy regime change. Good overview and useful introduction to the subject.
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  33. Right to Democracy in International Law
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  35. The idea of a “right to democracy” emerged with the seminal article Franck 1992. Wheatley 2002 and Petersen 2008 evaluate whether such a right can be identified in the body of international law. Marks 2011 and d’Aspremont 2011 reflect on whether the so-called right to democracy has enjoyed a sustained and ongoing influence in international law.
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  37. d’Aspremont, Jean. “The Rise and Fall of Democracy Governance in International Law: A Reply to Susan Marks.” European Journal of International Law 22.2 (2011): 549–570.
  38. DOI: 10.1093/ejil/chr024Save Citation »Export Citation »E-mail Citation »
  39. Outlines the “rise” and “fall” of the principle of democratic legitimacy in international law and reflects on the international law scholarship on the issue. Useful overview of the relevant debates and nature of international law scholarship.
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  41. Franck, Thomas. “The Emerging Right to Democratic Governance.” American Journal of International Law 86 (1992): 46–91.
  42. DOI: 10.2307/2203138Save Citation »Export Citation »E-mail Citation »
  43. Franck constructs the right to democratic governance from the internal aspect of the right of peoples to self-determination and the human rights to freedom of political activity and to free and fair elections. Starting point for the discussion here, and good reference point.
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  45. Marks, Susan. “What Has Become of the Emerging Right to Democratic Governance?.” European Journal of International Law 22.2 (2011): 507–524.
  46. DOI: 10.1093/ejil/chr023Save Citation »Export Citation »E-mail Citation »
  47. Reflects on the limitations in the ways in which the literature on democratic governance has developed concerning the legal status of the democratic norm, security and the democratic peace, the links between democracy and development, and the critique from ideology. Important critique of the “democracy turn” in international law.
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  49. Petersen, Niels. “The Principle of Democratic Teleology in International Law.” Brooklyn Journal of International Law 34 (2008): 33–84.
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  51. Good overview of the relevant debates. Petersen concludes that there is no “unequivocal” right to democratic governance. Instead, he identifies a principle of democratic teleology, according to which states are obligated to develop toward democracy.
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  53. Wheatley, Steven. “Democracy and International Law: A European Perspective.” International and Comparative Law Quarterly 51 (2002): 225–248.
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  55. Argues that a regional right to democracy can be identified in Europe and outlines the content of such a right: free and fair elections, freedom of association for political parties, freedom of political expression, and the right to seek to influence decisions. Useful overview of the arguments and introduction to the regional materials.
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  57. Democratic Self-Determination
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  59. Self-determination has emerged as a fundamental principle of the international law order. It is generally recognized as possessing an external aspect (right to a sovereign and independent state) and internal aspect (government in accordance with the will of the people). An obvious connection exists between the right of peoples to political self-determination and the idea of democracy: The logical conclusion is that a people determine their own future through democratic means. A number of authors have explored the way in which a principle of democracy can be seen in the doctrine and practice of self-determination of peoples.
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  61. Democracy and Internal Self-Determination
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  63. Internal self-determination is concerned with the political constitution of the state. The literature here examines whether international law mandates a particular form of (“democratic”) government or proscribes certain forms of (“nondemocratic”) government. The standard reference is Roth 2000, although d’Aspremont 2006 provides a more up-to-date analysis of the law. Writers have also examined particular applications of the “democracy norm.” D’Aspremont 2010 examines the international law position concerning military coups d’état against democratic governments. Rich 2001 looks at the extent to which democracy is regarded as a condition of membership in international organizations. Wheatley 2003 and Wheatley 2005 examine the extent to which the rights of peoples to self-determination and minorities to ethno-cultural difference can be understood and explained by reference to the international law right to democracy.
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  65. d’Aspremont, Jean. “Legitimacy of Governments in the Age of Democracy.” New York University Journal of International Law and Politics 38 (2006): 877–918.
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  67. Argues for a distinction between legitimacy of origin of governments and the legitimacy of the exercise of government power. Doctrinally rigorous; makes some interesting points. Draws on author’s doctoral thesis published as Jean d’Aspremont, L’état non démocratique en droit international: Étude critique du droit international positif et de la pratique contemporaine (Paris: Pedone, 2008).
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  69. d’Aspremont, Jean. “Responsibility for Coups in International Law.” Tulane Journal of International and Comparative Law 18 (2010): 451–476.
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  71. Examines international law literature, doctrine, and practice on coups d’état. Concludes that a coup d’état against a democratic government is a violation of international law. Good statement of the law.
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  73. Rich, Roland. “Bringing Democracy into International Law.” Journal of Democracy 12.3 (2001): 20–34.
  74. DOI: 10.1353/jod.2001.0056Save Citation »Export Citation »E-mail Citation »
  75. Outlines the way in which democracy within the state is promoted, inter alia, by making democracy a condition of membership of international organizations and the ways in which organizations use “democratic conditionality” in dealings with third states. Good introduction.
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  77. Roth, Brad. Governmental Illegitimacy in International Law. Oxford: Oxford University Press, 2000.
  78. DOI: 10.1093/acprof:oso/9780199243013.001.0001Save Citation »Export Citation »E-mail Citation »
  79. Theoretically informed evaluation of the implications of evaluating the democratic legitimacy of governments in light of international law doctrine and practice. Examines the difficulties in ascertaining the “will of the people” from an external perspective. Important work cautioning against liberal-democratic legitimism. Standard reference point on the subject.
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  81. Wheatley, Steven. “Deliberative Democracy and Minorities.” European Journal of International Law 14.3 (2003): 507–527.
  82. DOI: 10.1093/ejil/14.3.507Save Citation »Export Citation »E-mail Citation »
  83. Examines the rights of ethno-cultural minorities in a democracy, developing a democratic-proceduralist approach to the protection of minorities within the framework of international law that draws on the deliberative model of democracy. Good example of how a particular understanding of democracy can inform the reading of international law.
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  85. Wheatley, Steven. Democracy, Minorities and International Law. Cambridge, UK: Cambridge University Press, 2005.
  86. DOI: 10.1017/CBO9780511584336Save Citation »Export Citation »E-mail Citation »
  87. Examines the ways in which the idea of democracy can be accommodated alongside the right of peoples to political self-determination and rights of minorities. Considers the implications for the international law on democracy of accommodation of minority groups. Good introduction to the democracy norm in the context of “democratic minorities.”
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  89. Democracy and External Self-Determination
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  91. External self-determination is the right of a people to its own state. The best overview of the function of democracy in external self-determination is provided in Vidmar 2013. Rich 1993 also examines a case in which democracy is a criterion of statehood. An important part of the literature is focused on the democratic right to statehood in political theory. Patten 2002 provides a good introduction. Horowitz 2003 highlights the possibilities of a multidisciplinary approach. Buchanan 1998 examines the theoretical arguments for and against a “plebiscitary” right of secession. Murphy 1999 and Miller 2002–2003 examine international law on the plebiscitary right of secession.
  92.  
  93. Buchanan, Allen. “Democracy and Secession.” In National Self-Determination and Secession. Edited by Margaret Moore, 14–33. Oxford: Oxford University Press, 1998.
  94. DOI: 10.1093/0198293844.001.0001Save Citation »Export Citation »E-mail Citation »
  95. Evaluates arguments for a plebiscitary right of secession from the point of view of political theory. Concludes that these are not persuasive and that secession is limited to a remedial right only. Influential argument that resonates with international law doctrine.
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  97. Horowitz, Donald. “The Cracked Foundations of the Right to Secede.” Journal of Democracy 14 (2003): 5–17.
  98. DOI: 10.1353/jod.2003.0033Save Citation »Export Citation »E-mail Citation »
  99. Argument against secession as a means of resolving conflict between the state authorities and national minorities, observing that any new state would not be homogenous in ethnic-identity terms. Locates the argument in the international law on self-determination and secession. Good example of a multidisciplinary approach.
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  101. Miller, Russell A. “Self-Determination in International Law and the Demise of Democracy.” Columbia Journal of Transnational Law 41 (2002–2003): 601–648.
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  103. Good introduction to the practice of self-determination plebiscites and referendums in international law. Concludes that the idea of self-determination in the 1990s was not “democratic” in nature but focused on ethno-cultural differences and majority rule undermining the democratic ideal.
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  105. Murphy, Sean. “Democratic Legitimacy and the Recognition of States and Governments.” International and Comparative Law Quarterly 48 (1999): 545–581.
  106. DOI: 10.1017/S0020589300063430Save Citation »Export Citation »E-mail Citation »
  107. Important article outlining the international law and practice on the recognition of states and governments and the relevance of democracy. Doctrinally rigorous. Highlights the importance of referendums in the process of state formation but concludes that there is no requirement for new states to adopt a democratic form of government.
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  109. Patten, Alan. “Democratic Secession from a Multinational State.” Ethics 112 (2002): 558–586.
  110. DOI: 10.1086/338778Save Citation »Export Citation »E-mail Citation »
  111. Good overview of the arguments in political theory on democratic secession. Concludes that the plebiscite theory should be supplemented by a failure of recognition criterion, where the state has failed to accommodate the identity of a national minority.
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  113. Rich, Roland. “Recognition of States: The Collapse of Yugoslavia and the Soviet Union.” European Journal of International Law 4 (1993): 36–65.
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  115. Examines the international law practice of recognition following the collapse of the Soviet Union and Socialist Federal Republic of Yugoslavia. Highlights the way in which democratic “conditionality” was introduced into the process of recognition.
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  117. Vidmar, Jure. Democratic Statehood in International Law: The Emergence of New States in Post–Cold War Practice. Oxford: Hart, 2013.
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  119. Good detailed doctrinal analysis of the relationship between democratization and state creation after 1990. Examines the process of state formation and the influence of democracy. Concludes that democracy is not an additional legal requirement for state creation. Good reference point.
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  121. Human Rights and Democracy
  122.  
  123. A debate in the literature is emerging on the relationship between democracy and human rights, in particular whether democracy and human rights form an integral conception of legitimate political authority or whether they can be analyzed and applied separately. Much of the writing here is in political theory, although there are related international law writings on political participation and election monitoring.
  124.  
  125. Human Right to Democracy
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  127. Given that the substantive elements of the right to democracy—political self-determination and freedoms of political participation—are firmly established in the global and regional human rights regimes, a number of writers have examined whether it is possible to refer to a “human rights to democracy.” Christiano 2011 is the best introduction to the literature, although Langlois 2003 and Reidy 2012 present interesting contributions to the connection between democracy and human rights in political theory.
  128.  
  129. Christiano, Thomas. “An Instrumental Argument for a Human Right to Democracy.” Philosophy and Public Affairs 39 (2011): 142–176.
  130. DOI: 10.1111/j.1088-4963.2011.01204.xSave Citation »Export Citation »E-mail Citation »
  131. Important article that defends an instrumental justification of “rights democracy” based on the empirical evidence of the importance of democracy to the protection of personal integrity rights. Good starting point for any theoretical evaluation.
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  133. Langlois, Anthony J. “Human Rights without Democracy? A Critique of the Separationist Thesis.” Human Rights Quarterly 25 (2003): 990–1019.
  134. DOI: 10.1353/hrq.2003.0047Save Citation »Export Citation »E-mail Citation »
  135. Interesting paper grounded in political theory that argues that democracy cannot be separated from human rights. Concludes that, as the international community is committed to human rights, it must also be committed to some idea of democracy.
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  137. Reidy, David A. “On the Human Right to Democracy: Searching for Sense without Stilts.” Journal of Social Philosophy 43 (2012): 177–203.
  138. DOI: 10.1111/j.1467-9833.2012.01557.xSave Citation »Export Citation »E-mail Citation »
  139. Builds on the idea of an interventionist account of human rights. The article distinguishes between recognition and membership rights in the international community and a separate distinctive aspect about promoting collective goods, including the idea of democracy as a collective good. Concludes that the promotion of a human right to democracy must be pursued in a noncoercive fashion.
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  141. Human Right to Political Participation
  142.  
  143. The literature here explores the extent to which a human right to political participation can be identified. The issue emerged on the international law agenda around the time of the collapse of communism (1989–1990) and the key articles date from this period. Steiner 1988 is the original contribution. Fox 1992 updates the subject. Fox and Nolte 1995 analyzes the extent to which the international law conception of democracy can be used to limit the right of political participation for “nondemocratic” actors.
  144.  
  145. Fox, Gregory. “The Right to Political Participation in International Law.” Yale Journal of International Law 17 (1992): 539–608.
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  147. Detailed examination of international law doctrine on political participation, including the law on election monitoring. Examines the issue of enforcement. Detailed and doctrinally rigorous. Important reference point.
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  149. Fox, Gregory H., and Georg Nolte. “Intolerant Democracies.” Harvard International Law Journal 36 (1995): 1–70.
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  151. Examines the extent to which international and comparative law and practice on political participation mandates the inclusion or exclusion or “intolerant actors.” Important article in light of the wave of democratizations in the Arab world and the wider Middle East. Concludes that a substantive conception of democracy allows for the exclusion of nondemocratic actors.
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  153. Steiner, Henry. “Political Participation as a Human Right.” Harvard Human Rights Yearbook 1 (1988): 77–134.
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  155. Written at the time of the Cold War, the article provides a detailed doctrinal elaboration of the human rights of political participation. Contrasts the practices of communist states with those of liberal democracies. Important reference point.
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  157. Election Monitoring
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  159. Most countries, even authoritarian states, hold elections. The literature here examines the meaning of “free and fair” elections in international law. A number of pieces examine the relevant international law, including Resiman 1992 and Binder 2009. Binder and Pippan 2013 is the best statement of the law. Goodwin-Gill 2006 is an important statement of electoral “good practice.” Misk 2010 highlights the importance of election monitoring and the possibility of the international community adopting binding standards.
  160.  
  161. Binder, Cristina. “Two Decades of International Electoral Support: Challenges and Added Value.” Max Planck Yearbook of United Nations Law 13 (2009): 213–246.
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  163. Good introduction to the international law on election monitoring with some reflections on its effectiveness.
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  165. Binder, Christina, and Christian Pippan. “Election Monitoring, International.” In Max Planck Encyclopedia of Public International Law. Edited by Rüdiger Wolfrum. New York: Oxford University Press, 2013.
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  167. Detailed doctrinal overview of the international law framework concerning electoral monitoring. Good starting point for research. Selected bibliography.
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  169. Goodwin-Gill, Guy. Free and Fair Elections. 2d ed. Geneva, Switzerland: Inter-Parliamentary Union, 2006.
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  171. Publication of the Inter-Parliamentary Union. Outlines the legal requirements for “free and fair” elections. Good introduction to the international law on elections. Essential reference point.
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  173. Misk, Jonathan. “Standardizing the Principles of International Election Observation.” Vanderbilt Journal of Transnational Law 43 (2010): 763–811.
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  175. Outlines the process of drafting the UN Declaration of Principles for International Election Observation. Places the issue in its historical and practical context. Good overview of the issue of election observation.
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  177. Resiman, W. Michael. “International Election Observation.” Pace Yearbook of International Law 4.1 (1992): 1–48.
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  179. Good introduction and overview of the international law on election monitoring. Somewhat dated.
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  181. Democracy and the Use of Force
  182.  
  183. The principle of democracy has been influential in debates centering on the lawfulness and legitimacy of military interventions and the subsequent objective of any military occupation. The principle has justified arguments for a “democratic peace,” pro-democracy military interventions, and democratic regime change.
  184.  
  185. Democratic Peace
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  187. A long tradition in political theory, dating back to Immanuel Kant (see Kant 1917), argues that peaceful interstate relations can be guaranteed only in an international community of democratic states. Gowa 1999 and Norton Moore 2004 provide detailed elaborations of the argument. Christiano 2011 is a good introduction to the idea of the democratic peace and the relevant literature.
  188.  
  189. Christiano, Thomas. “An Instrumental Argument for a Human Right to Democracy.” Philosophy and Public Affairs 39 (2011): 142–176.
  190. DOI: 10.1111/j.1088-4963.2011.01204.xSave Citation »Export Citation »E-mail Citation »
  191. Good review of the empirical evidence that democracy supports peace. Good reference point for those interested in the idea of the “democratic peace.”
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  193. Gowa, Joanne. Ballots and Bullets: The Elusive Democratic Peace. Princeton, NJ: Princeton University Press, 1999.
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  195. Detailed elaboration of the idea of the democratic peace with an explanation as to how democracy supports international peace and security. Good reference point.
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  197. Kant, Immanuel. Perpetual Peace: A Philosophical Essay. 3d ed. Translated by M. Campbell Smith. London: Allen and Unwin, 1917.
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  199. Originally published in 1795. Classic account of the idea of the democratic peace between republican states. The idea of a republican state can be understood in terms of a constitutional democracy. Important as an idea rather than a systematic analysis.
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  201. Norton Moore, John. Solving the War Puzzle: Beyond the Democratic Peace. Durham, NC: Carolina Academic, 2004.
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  203. Good systematic overview of the democratic peace argument, drawing some conclusions for the design of global governance.
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  205. Pro-democracy Military Intervention
  206.  
  207. The literature here examines international law and practice on the imposition and reimposition of democratic governments. Byers and Chesterman 2000 provides a good introduction. Reisman 1994–1995 is an example of a policy-based argument for how international law should evaluate pro-democracy interventions. The political theory on pro-democracy intervention is also examined in Rawls 1999.
  208.  
  209. Byers, Michael, and Simon Chesterman. “‘You the People’: Pro-democratic Intervention in International Law.” In Democratic Governance and International Law. Edited by Gregory H. Fox and Brad R. Roth, 259–292. New York: Cambridge University Press, 2000.
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  211. Considered evaluation of the international law doctrine on unilateral and collective pro-democracy interventions with an examination of the relevant state practice.
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  213. Rawls, John. The Law of Peoples. Cambridge, MA: Harvard University Press, 1999.
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  215. An important and influential variant on the democratic peace thesis. The liberal democratic peace outlined by Rawls excludes the possibility of pro-democracy military interventions. Essential (if contested) work for those examining the political theory of intervention.
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  217. Reisman, W. Michael. “Humanitarian Intervention and Fledging Democracies.” Fordham International Law Journal 18 (1994–1995): 794–805.
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  219. Policy-based argument in support of unilateral military intervention in cases of military coups d’état against democratic governments.
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  221. Democratic Regime Change
  222.  
  223. It is now accepted that one objective of military occupation of a state should be the establishment of democracy. Reisman 2004 examines the policy-based argument for democratic regime change. McLaughlin Mitchell and Diehl 2012 examines the success of instances of forcible democratic regime change. Wheatley 2006 looks at the particular case of Operation Iraqi Freedom and the way in which the Security Council validated the particular form of democratic regime change.
  224.  
  225. McLaughlin Mitchell, Sara, and Paul F. Diehl. “Caution in What You Wish For: The Consequences of a Right to Democracy.” Stanford Journal of International Law 48 (2012): 289–317.
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  227. Useful survey of the available evidence concerning the utility of imposing democracy. Concludes that efforts at forcible democracy promotion (military interventions, occupations, imposed constitutions, and economic sanctions) have a mixed historical record in terms of the ability of newly imposed democracies to survive.
  228. Find this resource:
  229. Reisman, W. Michael. “The Manley O. Hudson Lecture: Why Regime Change Is (Almost Always) a Bad Idea.” American Journal of International Law 98 (2004): 516–525.
  230. DOI: 10.2307/3181642Save Citation »Export Citation »E-mail Citation »
  231. Review of international law and policy considerations involved in the practice of pro-democracy regime change.
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  233. Wheatley, Steven. “The Security Council, Democratic Legitimacy and Regime Change in Iraq.” European Journal of International Law 17.3 (2006): 531–551.
  234. DOI: 10.1093/ejil/chl018Save Citation »Export Citation »E-mail Citation »
  235. Examines the political transition in Iraq and the “deliberative” legitimacy of the relevant Security Council resolutions necessary to give legal effect to the fact of regime change. Demonstrates that “democracy” and “democratic legitimacy” can be understood in different ways and in different contexts.
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  237. International Territorial Administration
  238.  
  239. In cases in which a territory is subject to international administration one objective will be the introduction of democracy. The general issue of international territorial administration is examined in Fox 2008. A good overview of the relevant doctrine and practice is provided in Wolfrum 2005. D’Aspremont 2008 provides a useful introduction.
  240.  
  241. d’Aspremont, Jean. “Post-conflict Administrations as Democracy-Building Instruments.” Chicago Journal of International Law 9 (2008): 1–16.
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  243. Brief introduction to the issue of democracy promotion under international territorial administration. Good starting point.
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  245. Fox, Gregory H. Humanitarian Occupation. Cambridge, UK: Cambridge University Press, 2008.
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  247. Places the issue of international territorial administration in its historical context. Examines the way in which the United Nations sought to create democratic institutions in places such as Bosnia and Herzegovina, Kosovo, and East Timor. Good reference point.
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  249. Wolfrum, Rüdiger. “International Administration in Post-conflict Situations by the United Nations and Other International Actors.” Max Planck Yearbook of United Nations Law 9 (2005): 649–696.
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  251. Detailed doctrinal evaluation of the international law on international territorial administration with a particular focus on democracy promotion. Good introduction to the subject of democratic regime change under international territorial administration.
  252. Find this resource:
  253. The Global Democratic Deficit
  254.  
  255. The globalization and fragmentation of governance is said to have resulted in a “loss for democracy” at the level of the state. The point is made most strongly by the so-called New Sovereigntists in the United States (Bolton 2000 and McGinnis 2006), but it is also the basis of an important body of work that questions whether global governance and domestic democracy can be reconciled (Weiler 2004). One solution is the affirmation of domestic law over international law (Rabkin 2006). Complaints that a democratic deficit exists in international law fall into one of a number of categories: that in the absence of a global state, it makes no sense to talk about global democracy; to the extent that international law operates in a way that does not respect the principle of sovereign equality, there is a democratic deficit (Carty 1998, but compare Charnovitz 2003); that international organizations “legislate” international law norms in a way that is not democratic; and that the participation of nondemocracies in the international law system undermines the democratic legitimacy of international law norms. Alvarez 2007 provides a good introduction to the literature on the global democratic deficit. Wheatley 2010 provides a more detailed account of the relevant arguments and develops an alternative reading.
  256.  
  257. Alvarez, José. “Introducing the Themes.” In Special Issue: International Law and Democratic Theory. Edited by Campbell McLachlan. Victoria University of Wellington Law Review 38 (2007): 159–174.
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  259. Alvarez divides the complaints over the democratic deficit of global governance into three types: vertical (relationship between global governance institutions and individual citizens), horizontal (relations between states), and ideological (global governance functions to promote certain liberal values). Good introduction.
  260. Find this resource:
  261. Bolton, John. “Should We Take Global Governance Seriously?” Chicago Journal of International Law 1 (2000): 205–222.
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  263. Policy-based argument highlighting the way in which civil society actors who have failed to have their position accepted in domestic politics seek to internationalize a policy issue, with the objective of subsequently using international norms to strengthen their position in domestic policy debates. Influential “New Sovereigntist” critique by former US ambassador to the United Nations under President George W. Bush.
  264. Find this resource:
  265. Carty, Anthony. “Liberal Economic Rhetoric as an Obstacle to the Democratization of the World Economy.” Ethics 98 (1998): 742–756.
  266. DOI: 10.1086/293003Save Citation »Export Citation »E-mail Citation »
  267. Argues that there is a democratic deficit when global institutions move away from the “one state, one vote” principle. Focuses on international financial intuitions, in particular the International Monetary Fund as an example of how an idea of democratic legitimacy can inform arguments for reform of international organizations and institutions.
  268. Find this resource:
  269. Charnovitz, Steve. “The Emergence of Democratic Participation in Global Governance (Paris, 1919).” Indiana Journal of Global Legal Studies 10 (2003): 45–77.
  270. DOI: 10.2979/GLS.2003.10.1.45Save Citation »Export Citation »E-mail Citation »
  271. Argument against the idea of sovereign equality (“one state, one vote”) as a democratic principle and in favor of the participation of individuals in global governance. Highlights the importance of civil society actors in the international community.
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  273. McGinnis, John. “Foreign to Our Constitution.” Northwestern University Law Review 100 (2006): 303–329.
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  275. Observes that international law norms represent agreement between states, not peoples, so there is no reason to conclude that international law should trump the laws adopted by democratic institutions in particular nations. Calls for a reaffirmation of the principle of sovereignty, which requires the consent of states to any emergent international law norm. Influential “New Sovereigntist” critique.
  276. Find this resource:
  277. Rabkin, Jeremy. “American Self-Defense Shouldn’t Be Too Distracted by International Law.” Harvard Journal of Law and Public Policy 30 (2006): 31–63.
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  279. Argues that because international law lacks the institutions of a constitutional democracy (legislature, courts, executive), there is an inherent problem of indeterminacy in international law and the degree to which it is binding. Criticizes the argument that domestic law and international law have equal authority and importance. Policy-based argument that draws on a conception of state law.
  280. Find this resource:
  281. Weiler, J. H. H. “The Geology of International Law—Governance, Democracy and Legitimacy.” ZaöRV [Heidelberg Journal of International Law] 64 (2004): 547–562.
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  283. Important article that outlines the tensions between the idea of democracy at the national level and questions of democratic legitimacy at the global level. Good starting point.
  284. Find this resource:
  285. Wheatley, Steven. The Democratic Legitimacy of International Law. Oxford: Hart, 2010.
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  287. Detailed overview of the relevant debates on the democratic deficit and democratization strategies. Monograph develops an argument grounded in political and legal theory for understanding state, interstate, and global regulatory law norms in terms of the counterfactual ideal of deliberative democracy. Reflects on the way in which democratic states should promote the democratization of global governance.
  288. Find this resource:
  289. Democratization Strategies
  290.  
  291. A number of writers have developed strategies for the democratization of world society and global governance. Such strategies include the development of an idea of cosmopolitan democratic law (Held 1996), the democratization of institutions (Klabbers, et al. 2009); a revised concept of accountability for international organizations, including the idea of global administrative law (Krisch and Kingsbury 2006); influence over dominant global discourses such as market liberalism and human rights (Dryzek 1999); and an application of deliberative democracy to the various governance regimes of the international community (Wheatley 2011). An additional body of work has examined the way in which State democracies should engage with, and respond to, global regulations. These works include those on democracy enhancing international law (Keohane, et al. 2009), constitutional self-limitation (Buchanan and Powell 2008), international law as a pre-commitment device, and the idea of a contestable international rule of law (Kumm 2004).
  292.  
  293. Buchanan, Allen, and Russell Powell. “Constitutional Democracy and the Rule of International Law: Are They Compatible?” Journal of Political Philosophy 16 (2008): 326–349.
  294. DOI: 10.1111/j.1467-9760.2008.00322.xSave Citation »Export Citation »E-mail Citation »
  295. Theoretically informed policy-based argument that democracy should be understood as a particular form of constitutional self-government that embodies the rule of law and that requires entrenched human rights and a separation of government powers and an acceptance that democracies are fallible. The argument is comparative: International law is to be preferred where an international law norm embodies the ideal of the rule of law.
  296. Find this resource:
  297. Dryzek, John. “Transnational Democracy.” Journal of Political Philosophy 7 (1999): 30–51.
  298. DOI: 10.1111/1467-9760.00064Save Citation »Export Citation »E-mail Citation »
  299. Political theory argument that global governance can be subject to democratic control in which global publics are able to engage with and exercise a form of control over the dominant discourses in world society.
  300. Find this resource:
  301. Held, David. Democracy and the Global Order: From the Modern State to Cosmopolitan Governance. Cambridge, UK: Polity, 1996.
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  303. Outlines the influential model of cosmopolitan democracy. The application of cosmopolitan and democratic principles would result in overlapping systems of governance organized in accordance with democratic law. Theoretically informed argument for reform of world society.
  304. Find this resource:
  305. Keohane, Robert, Stephen Macedo, and Andrew Moravcsik. “Democracy Enhancing Multilateralism.” International Organization 63.1 (2009): 1–31.
  306. DOI: 10.1017/S0020818309090018Save Citation »Export Citation »E-mail Citation »
  307. Theoretically informed policy-based argument that the participation of democratic states in multilateral institutions can enhance the quality of domestic democracy by restricting the influence of special interest factions, protecting individual and minority rights, and improving the quality of deliberation.
  308. Find this resource:
  309. Klabbers, Jan, Anne Peters, and Geir Ulfstein. The Constitutionalization of International Law. Oxford: Oxford University Press, 2009.
  310. DOI: 10.1093/acprof:oso/9780199543427.001.0001Save Citation »Export Citation »E-mail Citation »
  311. Chapter 6 by Anne Peters, titled “Dual Democracy” (pp. 263–341), argues that the most powerful international organizations and institutions should be “parliamentarized.” Counsels against any view that global parliamentary assemblies can provide effective political oversight: Their importance lies in opening up international organizations to greater transparency and public scrutiny, contestation, and debate, and in promoting political dialogue. Example of a progressive reading of international law grounded in existing doctrine and practice.
  312. Find this resource:
  313. Krisch, Nico, and Benedict Kingsbury. “Introduction: Global Governance and Global Administrative Law in the International Legal Order.” European Journal of International Law 17.1 (2006): 1–13.
  314. DOI: 10.1093/ejil/chi170Save Citation »Export Citation »E-mail Citation »
  315. An important contribution in the literature focused on the application of domestic administrative law principles to global governance institutions, developed under the auspices of the Global Administrative Law Project based at New York University School of Law.
  316. Find this resource:
  317. Kumm, Mattias. “The Legitimacy of International Law: A Constitutionalist Framework of Analysis.” European Journal of International Law 15.5 (2004): 907–931.
  318. DOI: 10.1093/ejil/15.5.907Save Citation »Export Citation »E-mail Citation »
  319. Theoretically informed policy-based argument that the international rule of law requires that liberal democracies operate a rebuttable presumption in favor of compliance with international law norms. This can be rebutted in the event that the norms violate normative principles relating to jurisdiction, procedure, or outcomes, for example, a violation of human rights.
  320. Find this resource:
  321. Wheatley, Steven. “A Democratic Rule of International Law.” European Journal of International Law 22.2 (2011): 525–548.
  322. DOI: 10.1093/ejil/chr022Save Citation »Export Citation »E-mail Citation »
  323. Evaluates the possibilities of applying the idea of deliberative legitimacy to the various and diverse systems of law, including state law, interstate law, and global regulatory regimes. Concludes with some observations on the problems for the practice of democracy in the counterfactual ideal circumstances in which a plurality of legal systems legislate conflicting democratic law norms.
  324. Find this resource:
  325. Critical Voices
  326.  
  327. The emergence of democracy in the international law order has generally been regarded as a “good thing.” However, a number of authors have questioned this assumption or urged caution in the embrace of democracy as a legitimation device. The most important critique has been made by Susan Marks (Marks 1997 and Marks 2000). The pro-democracy regime-change agenda of US president George W. Bush has reduced the enthusiasm for democracy promotion (MacDonald 2002) and the events in the Arab world (the so-called Arab Spring) have demonstrated the complexities inherent in the democratization of domestic societies (Carothers 2006 and Hanau Santini and Hassan 2012).
  328.  
  329. Carothers, Thomas. “The Backlash against Democracy Promotion.” Foreign Affairs 85 (2006): 55–68.
  330. DOI: 10.2307/20031911Save Citation »Export Citation »E-mail Citation »
  331. Brief paper describing the way in which autocratic states or states with superficial commitments to democracy are moving away from a commitment to the democratization of their own societies. Questions whether democracy will continue to be a central norm in the international community. Highlights the way in which the idea of democracy in international law is influenced by external (nonlegal) factors.
  332. Find this resource:
  333. Hanau Santini, Ruth, and Oz Hassan. “Transatlantic Democracy Promotion and the Arab Spring.” The International Spectator: Italian Journal of International Affairs 47.3 (2012): 65–82.
  334. DOI: 10.1080/03932729.2012.700021Save Citation »Export Citation »E-mail Citation »
  335. Examines the Arab democratic revolutions in the context of US and EU democracy promotion policies. Good background paper putting the issue into context.
  336. Find this resource:
  337. MacDonald, Euan. “International Law, Democratic Governance and September the 11th.” German Law Journal 3 (2002).
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  339. Examines the implications of “9/11” for the democracy norm in international law. Interesting example as to how scholars can respond to events.
  340. Find this resource:
  341. Marks, Susan. “The End of History? Reflections on Some International Legal Theses.” European Journal of International Law 8 (1997): 449–477.
  342. DOI: 10.1093/oxfordjournals.ejil.a015593Save Citation »Export Citation »E-mail Citation »
  343. Theoretically informed article that argues that the consequence of international lawyers understanding democracy in terms of certain liberal institutions has been that attention and energy has been diverted away from elements of the democratic tradition with greater emancipatory promise.
  344. Find this resource:
  345. Marks, Susan. The Riddle of All Constitutions. Oxford: Oxford University Press, 2000.
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  347. Important research monograph that engages in an ideological critique of the way in which the “democracy norm” in international law has been understood and applied. Argues for a broader conception of democracy than one focused on elections. Standard reference work in the literature on democracy in international law.
  348. Find this resource:
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