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Coleman, Andrew --- "Using might to enforce a right" [2003] AltLawJl 31; (2003) 28(3) Alternative Law Journal 110

Using might to enforce a right

Andrew Coleman[*]

International law does not justify the use of force to create a democracy where one does not exist.

Recently the term 'regime change' has been bandied about, mainly by President George W. Bush as a justification for intervention in Iraq. It is assumed here that the change involves converting a totalitarian dictatorship into a functional democracy. Since the end of the Cold War many commentators have argued there now exists a right to democracy.[1] Franck and other proponents claim that the level of acceptance by the international community of this 'democratic entitlement' has reached such a level, that it is in fact a legal norm.[2] The aim of this article is to examine the right to democracy, whether it can be enforced through military intervention, and to pose an 'alternative' explanation that questions the legitimacy of the claims made by authors such as Franck and casts doubt on the validity of 'regime change'. It is not proposed to discuss the issue of humanitarian intervention.

Democracy: a legal norm?

A substantial amount of evidence is available to support the claim that a democratic entitlement exists, for example:

• the right to political participation through the electoral process has been stated in the Declaration on Principles of International Law Concerning Friendly Relations;[3]

• Article 21 of the Universal Declaration on Human Rights in Article 25(b) of the International Covenant on Civil and Political Rights (ICCPR);[4]

• several regional treaties such as Article 23 of the American Convention on Human Rights, Article 13 of the African Charter on Human and Peoples' Rights and Article 3 of the First Protocol to the Convention on Human Rights. Such documents have also been supported by resolutions of the UN General Assembly and other international organisations such as the Organisation of American States (OAS) and the Conference on Security and Co-operation in Europe (CSCE);

• the United Nations (UN) has played an important and expanding role in monitoring elections;

• the staggering number of nation-states in former communist nation-states in Eastern Europe and also former authoritarian regimes in Africa and Latin America that have 'converted' to democratic governments.

Further, proponents of a democratic entitlement submit that recognition of this entitlement by the international community is demonstrated by the aborted coup in the USSR and the denouncement by the international community of the coup that ousted the democratically elected government of Jean-Bertrand Aristide of Haiti.

Why has democracy come to be the dominant political system of the international community? For some commentators the reason is that democracy represents the final evolution of political thought.[5] However, for most commentators it is that a democratic government enables meaningful participation for the governed in their governance,[6] and provides a political structure that contains an inheren system of 'checks and balances' enabling greater protection of human rights.[7] According to Dasgupta and Maskin, the true value of democracy is that it provides 'political competition', a marketplace of ideas and purported solutions to problems and threats faced by a community.[8] Democracy empowers its citizens through the electoral process and thus they are more willing to obey that government, whereas in non-democratic governments there is no possibility for change, with potentially disastrous consequences. Non-democratic governments are also considered to be more warlike and more likely to engage in armed conflict with their neighbours simply because their own population is unable to oppose the conflict and remove the government through use of the electoral process. They are also more likely to lead to excesses of authority in their dealings with their citizens.[9]

For commentators like Franck, the significance of a democratic government is more than just a 'preference'; it is a confirmation of the legality of the government. Franck argues that in accordance with international law, only democratic governments are legitimate and this is based on the concept of self-determination.[10]

The right to self-determination and the West's claim for democracy

The right of peoples to self-determination is well established in international law,[11] so much so that some commentators consider self-determination to be jus cogens.[12] Further, the International Court of Justice (ICJ) in their opinions on Namibia[13] and Western Sahara [14] confirmed that self-determination was not merely a UN political policy but a genuine legal right that, once validly invoked by peoples, entitled them to claim independent statehood.[15] Article 1 of the ICCPR, states the right as follows:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Article 1 does not state that self-determination must result in the formation of a democratic government. Franck argues that the expression, 'the right freely to determine, without external interference, their political status ... ' means a right available to peoples to choose their 'sovereign' and this is an on-going electoral process. If a people only choose once, they condemn future generations to live with their choice­ in a way a form of oppression.[16] The European Court of Human Rights has made it clear that if a political party is disbanded, it is a denial of the right to participate in the political process of their government.[17]

Thus at the core of the concept of democratic entitlement is the idea that democracy is synonymous with freedom: the denial of participation in the government of a nation-state equates to oppression or repression of the people's sovereignty and is, therefore, a denial of a human right. If there is a norm of international law guaranteeing a right to democracy what are the consequences if this right is denied? [18] What rights do 'peoples' living under a non-democratic government have? Franck has argued that 'increasingly [the democratic entitlement] will be promoted and protected by collective international processes'. [19] Just how will it be 'promoted and protected'?

Can a right to democracy be enforced?

The principle of non-interference is one of the most important rules of international law. It is also a reason why to date the definition of government has not meant a democratic government: such a demand would constitute unlawful intervention.[20] However, Franck, suggests that the democratic entitlement has triumphed over the right to non-intervention due to a combination of a number of international documents,[21] such as Resolution 2825 (VX) of the General Assembly, which states:

Every State has the duty to refrain from any forcible action which deprives peoples of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and receive support in accordance with the purposes and principles of the Charter.

Another GA resolution has stated:

[The General Assembly] Calls upon all States dedicated to the ideas of freedom and peace to give all their political, moral, and material assistance to peoples struggling for liberation, self-determination and independence against colonial and alien domination.[22]

Tanca argues that the above resolution clearly establishes that a national government is prohibited from seeking external assistance to repress self-determination.[23] A national government is legally not entitled to deny its peoples the right of self-determination, however, 'peoples' who are lawfully entitled to self-determination are legally entitled to external assistance.

Does this extend to include armed intervention by the third party? Does such a right extend to the internal application of self-determination: is there a right to intervene to enforce democracy? Franck argues that whilst the absence of a democratic government does not authorise intervention, there exists a right to restore one, which stretches as far back as the Atlantic Charter and the so-called Tobar Doctrine. There has been an example of such an intervention in Haiti.[24] However, there have also been examples of interventions to implement a democratic government. The first was in the Dominican Republic in 1965, the second in Grenada in 1983 and the third was in Panama in 1989. The most infamous is the illegal US involvement in Nicaragua and the subsequent Nicaragua Case. [25]

In the Nicaragua Case the ICJ held that the US had no legitimate right to intervene. In coming to this conclusion the Court commented that the real reason behind the United States' action was that the US wished to change the nature and political 'type' of government in Nicaragua to a democratic one: in a sense 'regime change'.

It appears to the Court to be clearly established first, that the United States intended, by its support of the contras, to coerce the Government of Nicaragua in respect of matters in which each State is permitted, by the principle of State sovereignty, to decide freely ... and secondly that the intention of the contras themselves was to overthrow the present Government of Nicaragua. The 1983 Report of the Intelligence Committee refers to the contras' 'openly acknowledged goal of overthrowing the Sandinistas'. [at para 243]

This was quite clearly unacceptable in the eyes of the Court. The Court's finding indicated a view that there is no right to intervene in order to simply enforce the adoption of a democratic government.

The democratic entitlement revisited

During the decolonisation period, there was no doubt that self-determination referred to the right of a colonial people to reject or accept the continuation of colonial rule. This is proven by the practice of nation-states.[26] The UN Special Committee created and charged with the implementation of the Declaration on the Granting oflndependence to Colonial Countries and Peoples dealt only with peoples from trust territories and non-self-governing territories. Also the ICJ in the Western Sahara Case interpreted the right to self­ determination as expressed in the UN Charter as a right to statehood: not a right to democracy.[27] The ICJ referred to the 1970 Declaration on Granting Independence to Colonial Countries and Peoples in detail and stated that there were three choices (at para 57):

1. emergence as a sovereign independent state;

2. free association with an independent state; or

3. integration with an independent state.

How such a ruling came to mean a right to democracy was due to the Cold War and the 'defeat' of the former USSR, which provided a crucial opportunity for the interpretation that self-determination included a democratic entitlement: something that Franck openly acknowledges. Prior to the Cold War both Lenin and Wilson believed that self­ determination was a right to self-government. However, Lenin believed that it was a right to a socialist government, while Wilson believed that it was a right to a democratic government.[28] With the former USSR and the US rising to dominate world affairs in the period following the Second World War, the conflict between the two ideologies, and therefore interpretations of the type of government that arose from self-determination escalated with both protagonists seeking to deny legitimacy to any government that was of the opposing side's type.

During the Cold War the USSR actively supported self-determination and it was due to this support that the UN implemented its decolonisation policy. This threatened the colonies of Britain and France and so in retaliation the West extended the right to freedom from foreign or alien repression, to freedom from all oppressive regimes, which meant any non-democratic governments. Thus the West attempted to legitimise democracy as being the only type of government.[29] Then during the latter stages of the 'Cold War' the Final Act of the CSCE was adopted by the US and its allies on 1 August 1975, and its Declaration on the Principles Concerning Mutual Relations. This was followed on 29 June 1990 at a meeting in Copenhagen of the CSCE's Conference on Human Dimension, with the adoption of the Charter of Paris for a New Europe and the Moscow Declaration on 3 October 1991 by the Chiefs of State of 34 CSCE members.[30] Both treaties sought to ensure through the law of recognition that emerging nation-states adopted democratic governments.

It is submitted here that a democratic entitlement merely represents the completeness of the victory of the West over socialism. This is supported by referring again to the Nicaragua Case, where the ICJ was of the view that Nicaragua by being a signatory of the OAS Charter was not legally bound to hold free elections; instead, the ICJ confirmed that the OAS Charter protected the political independence of its members (at paras 259 and 261). The Court also stated that international law considered the choice of political and economic structure of a nation-state as a purely domestic choice and this is based on the principle of non-intervention.

A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones ... [at para 205]

Even more significant was the ICJ's conclusion that the fact the Nicaraguan Government was not a democratic government was clearly not a breach of international law.

The finding of the United States Congress also expressed the view that the Nicaraguan Government had taken 'significant steps towards establishing a totalitarian Communist dictatorship'. However the regime in Nicaragua is defined, adherence by a State to any particular doctrine does not constitute a violation of customary international law. To hold otherwise would make nonsense of the fundamental principle of State sovereignty, on which the whole of international law rests and the freedom of choice of the political, social, economic and cultural system of a State. Consequently, Nicaragua's domestic policy options, even assuming that they correspond to the description given of them by the Congress finding, cannot justify on the legal plane the various actions of the Respondent complained of. [at para 263]

The Court's conclusion was based on the Declaration on Friendly Relations and noted that this right of non-intervention protected a nation-state's choice of political system, was a right that the US itself supported.

Texts like these [the Helsinki Final Act and General Assembly resolution 2625 (XXV)], in relation to which the Court has pointed to the customary content of certain provisions such as the principles of the non-use of force and non-intervention, envisage the relations among States having different political, economic and social systems on the basis of coexistence among their various ideologies ... [at para 264, emphasis added]

Furthermore, the ICJ in the Nicaragua Case stated that the rules of international law expected and accommodated a diverse range of political systems and cultures, that the 'free choice' contained in the 1966 Covenants should be free from outside influence, namely whether a community will receive recognition from existing nation-states. In other words the choice is to be unfettered to the extent that such a government or system complies with international law.

The Court cannot contemplate the creation of a new rule opening up a right of intervention by one state against another on the ground that the latter has opted for some particular ideology or political system. [at para 263]

History proves that with the collapse of Empires there has invariably been a political reorganisation: governments change, borders are redrawn; even languages and religions have been changed, all with the intention of ensuring that the defeated power will never rise again to threaten the victors. Examining self-determination, one conclusion is clear. Self-determination has resulted in the disintegration of defeated empires, even as early as when the victorious allies in the Concert of Europe used a primitive form of self-determination to dismantle Napoleon's defeated empire.[31] It was also used in the defeat of the Central Powers in the First World War, which provided an opportunity in the words of Wilson, to free 'the trapped nationalities of Europe'.[32] With the demise of socialism it is only natural for the 'victor', that is the Western powers, to ensure that socialism never ever rises again to 'threaten' their existence. So why not argue that the only legitimate government is one modelled after the victors? The increasing number of democratic governments in the aftermath of the Cold War is evidence of the dismantling of the former socialist empire of the USSR. If history were different and the USSR 'won' the Cold War, then it would be safe to say that there would be a right to a socialist government. In other words, the practice of nation-states represents nothing more than the victor attempting to legitimise their policies on the basis of 'might is right'.

Concluding remarks

There are substantial arguments to prefer democratic governments, and participation in the political process is recognised as a human right. However, it is irrational to claim on the one hand that peoples have a legal right to choose the1r government, and then state that only one cho1ce will result in a government recognised as being 'legal': What choice do they really have? More importantly, international law does not justify the use of force to create a democracy where one does not exist: there is no legitimate basis for 'regime change'. The ICJ in the Nicaragua Case stated that people have a legal right to choose the type of their political, economic and social system. To impose any system, particularly by force, on a people would be 'undemocratic' and a denial of their rights as a people. Finally, we should remember that even democracy cannot guarantee protection of human rights or guarantee the basic necessities of life,. food and shelter.

Democracy is hardly a panacea, and it will not by itself either resolve profound domestic problems (such as wide inequalities in income, severe ethnic conflicts, and insufficient resources to meet rising demands) or necessarily generate an international order that is more peaceful or prosperous.[33]

[*] Andrew Coleman teaches business law and taxation at Monash University and is a member of the Asia-Pacific Centre for Military Law at the University of Melbourne where he is a doctoral candidate in international law. Thank you to Assoc. Professor Vince Morabito for his helpful comments on earlier drafts of this paper.

© 2003 Andrew Coleman (text)

© 2003 John Lynch (cartoon)

[1] See the collection of work in Gregory Fox and Brad Roth (eds), Democratic Governance and International Law, Cambridge University Press, Cambridge, 2000.

[2] Franck, Thomas M., 'The Emerging Right to Democratic Governance', (1992) 86 American Journal of International Law 46 at 47 and 55.

[3] Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, Annex to GA Res. 2625, 25 UN GAOR Supp. (No.28) at 121, UN Doc. A/8028 (1970). The GA adopted this declaration on I 0 December 1948, sec GA Res. 217A, UN GAOR, 3rd scss. at p.71.

[4] UKTSc6 (1977}, Cmnd. 6702; (1967) 61 AJIL 870. By March 1999 144 nation-states were parties to the Covenant. Fox, Gregory, 'The Right to Political Participation in International Law', in Fox & Roth (eds), above, ref 1, p.53.

[5] This is Fukuyama's theory of the 'end of history', as discussed in detail by Marks, Susan, 'International Law, Democracy and the End of History', in Fox and Roth (eds), above, ref 1, pp.532-66.

[6] Ojo, B., Human Rights and the New World Order: Universality, Acceptability and Human Dzversity, Nova Science Publishers Inc., New York, 1997, p.87; Franck, Thomas, 'Democracy as a Human Right', in Lewis Henkin and John Hargrove (eds), Human Rights An Agenda for the Next Century, The American Society of International Law, Washington, 1994, pp.73-102 at 73.

[7] Ratner, Stephen, 'Democracy and Accountability: the Criss-Crossing of two Emerging Norms', in Lewis Henkin and John Hargrove (eds), above, ref 10, pp.449-90.

[8] Dasgupta, Partha and Maskin, Eric, 'Democracy and Other Goods', in Ian Shapiro and Casiano Hacker-Gordon (eds), Democracy's Value, Cambridge University Press, 1999, pp.69-91 and 81.

[9] Owen, John, 'Intcrnational Law and the "Liberal Peace'" in Fox and Roth (eds) above, ref I, pp. 343-85; Fox and Nolte, 'Intolerant Democracies' in Fox anf Roth (eds) above, ref 1, pp. 389-435 at 397.

[10] See Franck, above ref 2 generally.

[11] For example see Articles I (2) and 55 of the UN Charter; the Declaration on the Granting of Independence to Colonial Countries and Peoples GA Res. 1514 (XV); the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV); Article 1(1) ICCPR; the American Convention on Human Rights; the African Charter on Human and Peoples' Rights.

[12] This is in accordance with Article 53 of the Vienna Convention on the Law of Treaties. See also H. Gros-Espiell, The Right to Self-Determination of United Nations Resolutions, United Nations, 1980.

[13] Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) ICJ Rep., 1971, p.16.

[14] Western Sahara (Advisory Opinion) ICJ Rep., 1975, p.23.

[15] Tomuschat, Christian, 'Self-determination in a Post-Colonial World in Secession' in Christian Tomuschat (ed.), Modern Law of Self-Determination, Kluwer Academic Publishers, 1993, pp.l-20 at 2.

[16] Franck, above, ref 2, pp.46 and 52; Crawford, James, 'Democracy and the Body of International Law', in Fox & Roth (eds), above, ref 1, p.94.

[17] United Communist Party of Turkey (TBKP) v Turkey, 26 European Human Rights Reports 121 (1998) 45, where the Court held that Turkey had violated Art. II of the European Convention in banning the TBKP because of its desire for a peaceful solution to the Kurdish problem, and thus prevented the right to democracy.

[18] Franck, above, ref 2, p.49; Tanca, Antonio, Foreign Armed Intervention in Internal Conflict, Martinus Nijhoff Publishers, Dordrecht, 1993, p. l06.

[19] Franck, Thomas, above, ref 2, p.46.

[20] Murphy, Sean, 'Democratic Legitimacy and the Recognition of States and Governments', (1999) 48(3) International and Comparative Law Quarterly 545 at 547.

[21] Franck, Thomas, in Fox &Roth (eds),above, ref!, atp.46. Articles 1.2 and 1.3 of the ICCPR as well as resolutions of the UN General Assembly, paras 4 and 5 Res.1514 (XXV); Res. 2825(XV).

[22] G.A. Res. 2787 (XXVI), 1971.

[23] Tanca, above, ref 16, pp. l06-7.

[24] Duursma, Jorri, Fragmentation and the International Relations of Micro-States, Self-Determination and Statehood, Cambridge University Press, 1996, p.ll.

[25] Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) 1986 Rep., p.14 (the Nicaragua Case).

[26] Quane, Helen, 'The United Nations and the Evolving Right to Self-Determination,' (1998) 47(3) International and Comparative Law Quarterly 537 at 548-558 and 555.

[27] 'The principle of self-determination as a right of peoples, and its application for the purpose of bringing all colonial situations to a speedy end', Western Sahara (Advisory Opinion) Case, ICJ Rep., 1975, p.31 at para. 55, emphasis added.

[28] Cassese, Antonio, Self-Determination of Peoples, Cambridge University Press, 1995, pp.l4-18.

[29] Cassese, Antonio, above, rcf26, pp.46-47 and 52-54. See, in particular, the remark by the Chairman of the Working Party of the Third Committee at ref 51.

[30] Salmon, Jean, 'Internal Aspects of the Right to Self-Determination' in C. Tomuschat (ed), above ref 13, p.268.

[31] Batistich, M., 'The Right to Self-Determination and International Law', (1992-1995) 7 Auckland University Law Review I 013 at 1015.

[32] Wilson's Fourteen Points: see Cassese, above, ref 26, pp.22-24.

[33] Rothstein, Robert, 'Weak Democracy and the Prospect for Peace and Prosperity in the Third World', in S. Brown and K. Schraub (cds), Resolving Third World Conflict, Challenges for a New Era, United States Institute for Peace, Washington, 1992, pp.l6-50 at 17.

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