Gregory H. Fox

Democracy and international law

The voluminous literature on recent transitions to democracy has generally lacked an analysis from the perspective of international law. This article explores four aspects of efforts to promote a normative ‘democratic entitlement’. First, it reviews the ways in which notions of democratic legitimacy have infiltrated virtually every aspect of international legal discourse. Second, it explores how a normative legitimacy standard may alter foundational doctrines of international law, such as non-intervention and the recognition of states and governments. Third, it reviews arguments against the emergence of ‘democratic entitlement’. These arguments both take issue with the sources of law relied upon by the entitlements proponents, and ask whether the substantive and procedural aspects of democracy implicit in the democratic entitlement thesis are conceptually coherent. Finally, the article explores the ways in which a legal analysis of democratization confronts questions not addressed by the methodologies of other disciplines.

Democratic Governance and International Law: Introduction: the spread of liberal democracy and its implications for international law

DEMOCRATIC GOVERNANCE AND INTERNATIONAL LAW Prior to the events of 1989–91, “democracy” was a word rarely found in the writings of international lawyers. Most scholars, and certainly most States, accepted the 1987 view of the American Law Institute that “international law does not generally address domestic constitutional issues, such as how a national government is formed.” Apart from its use in resolutions repudiating “alien, colonial, and racist” domination, the term “democratic” appeared in collective pronouncements as a mere platitude, so abstract as to encompass opposite interpretations. Although human rights instruments such as the International Covenant on Civil and Political Rights (ICCPR) had long provided for a right to political participation, the diversity (and, in the case of Cold War participants, mutual hostility) of governmental systems in the international “community” had precluded consensus on the specifications of this right. Moreover, any assertion of a determinate “right to democratic governance” would have suggested criteria of governmental legitimacy at odds with the “effective control” doctrine that had long prevailed in the recognition practices of most States and intergovernmental organizations. The United Nations, an organization founded on the principle of the sovereign equality of ideologically diverse States, seemed an unlikely vehicle to further a specific mode of internal governance. Although the UN had an extensive history of monitoring elections and referenda in States emerging from colonialism, it did not send a monitoring mission to a sovereign State until the 1990 elections in Nicaragua.

Transformative Occupation and the Unilateralist Impulse

The 2003 occupation of Iraq ignited an important debate among scholars over the merits of transformative occupation. An occupier has traditionally been precluded from making substantial changes in the legal or political infrastructure of the state it controls. But the Iraq experience led some to claim that this ‘conservationist principle’ had been largely ignored in practice. Moreover, transformation was said to accord with a variety of important trends in contemporary international law, including the rebuilding of post-conflict states along liberal democratic lines, the extra-territorial application of human rights treaty obligations, and the decline of abstract conceptions of territorial sovereignty. This article argues that these claims are substantially overstated. The practice of Occupying Powers does not support the view that liberal democratic transformations are widespread. Human rights treaties have never been held to require states parties to legislate in the territories of other states. More importantly, the conservationist principle serves the critical function of limiting occupiers’ unilateral appropriation of the subordinate state’s legislative powers. Post-conflict transformation has indeed been a common feature of post-Cold War legal order, but it has been accomplished collectively, most often via Chapter VII of the UN Charter. To grant occupiers authority to reverse this trend by disclaiming any need for collective approval of ‘reforms’ in occupied states would be to validate an anachronistic unilateralism. It would run contrary to the multilateralization of all aspects of armed conflict, evident in areas well beyond post-conflict reconstruction.

The International Law of Occupation

This is a review of the second edition of The International Law of Occupation by Eyal Benvenisti (OUP 2012), which appeared in Volume 23(1) (February 2013) of the European Journal of International Law.