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The End of History? Reflections on Some International Legal Theses
II. The `Norm of Democratic Governance' and Other Theses
Insofar as the thesis of the emerging norm of democratic governance and related claims share the liberal millenarianism of Fukuyama's end of history narrative, the foregoing discussion is rich in implications. Before addressing the issue of these theses' liberal millenarianism, however, it is necessary to set out the arguments involved. For this purpose a distinction may be drawn between those which discuss democracy primarily as a right and those which discuss democracy primarily in more instrumental liberal internationalist terms.
A. Democracy as a Right
The right-oriented theses involve the claim - first advanced by Thomas Franck,43 but subsequently taken up and developed by others as well44 - that international law is beginning to embrace a `norm of democratic governance' or `global democratic entitlement'. Such a norm or entitlement would mean three things. First, it would entail that the legitimacy of governments is judged by international, rather than purely national, rules and processes. Second, it would connote that those international rules and processes stipulate democracy; that is to say, only democratic governments are legitimate. And third, it would establish that democracy is an internationally guaranteed human right, in respect of which international procedures of monitoring and enforcement are justified and, indeed, required.
How has this norm or right come to `emerge'? Franck offers the fullest explanation. He traces the normative and customary evolution of the global democratic entitlement by reference to three overlapping phases or `generations'45 of international rule-making and implementation. The first generation, born after the First World War (but with older antecedents), is the right of self-determination. The plebiscites, popular consultations and commissions of inquiry that were mandated at the Versailles Peace Conference in connection with the redrawing of European boundaries gave rise to the idea that `a people organised in established territory [has the right] to determine its collective political destiny in a democratic fashion'.46 At the same time, a body of practice concerning plebiscite-holding and international supervision was initiated. This was further developed when self-determination was applied outside Europe in the context of decolonization.
The second generation, born after the Second World War, is the international legal recognition of human rights. With this the idea was established that all human beings have the right to freedoms of expression, thought, assembly and association (among other rights). Procedures for holding governments to their obligations in this regard, and for clarifying the scope of the rights and correlative obligations, were also elaborated. The third generation, still in its infancy, is the right to free and open elections. This was effectively born with the transformations of the late 1980s. While the right to vote and stand for election had been recognized in key human rights instruments decades before, it was not until those transformations occurred that this right began to be taken seriously as a norm of universal application. It was not until those transformations occurred, in other words, that it became possible to consider this right an emerging norm of customary international law. That it has begun to be taken seriously is reflected in the fact that the substantial majority of states now actually practise `a reasonably credible version of electoral democracy'.47 This is also reflected in international efforts to establish and define the `principle of genuine and periodic elections'; in the increasingly common provision of `technical assistance' by the UN and other organizations and agencies to governments holding democratic elections for the first time; and in the expanding practice of international and regional election monitoring. Varying his metaphor so as to emphasize the way that the right to free and open elections extends, and depends on, international legal developments with respect to self-determination and human rights, Franck sometimes refers to these as three `building stones'48 in the edifice that is the global democratic entitlement.
Other scholars likewise hold that, while the global democratic entitlement has had a basis for decades in international human rights instruments, and before that in the principle of self-determination of peoples, it has only recently begun to be respected, monitored and enforced to a significant extent.49 Thus, it has only recently begun to acquire the status of a norm of customary international law. In addition to the evidence of this to which Franck calls attention, Christina Cerna notes the procedures elaborated in the 1990s within the framework of the Council of Europe and the Organisation of American States for conditioning admission or continued participation on democratic government.50
As this suggests, these scholars take free and fair elections to be the decisive criterion of democracy, though they in no way underestimate the extent to which the right to such elections presupposes other rights, especially freedoms of expression, thought, assembly and association. Elections are in this perspective decisive because they legitimate governance. Thus, the expressions `democratic entitlement', `right to democracy', `norm of democratic governance', `entitlement to a participatory electoral process', `right to political participation', `electoral rights', and the `right to free and open elections' are employed with relative interchangeability. Franck explains:
The term `democracy', as used in international rights parlance, is intended to connote the kind of governance that is legitimated by the consent of the governed. Essential to the legitimacy of governance is evidence of consent to the process by which a populace is consulted by its government.51
Franck acknowledges that this is a limited conception of democracy. `This definition', he observes, `is not ambitious, it is not necessarily unambiguous, and it is almost certainly not the one Americans would prefer'.52 But given the diversity of polities and traditions in the world, and given the inbuilt resistance of the states system to the international regulation of national affairs, he considers that this conception or something like it `probably represents the limit of what the still frail global system of states can be expected to accept and promote as a right of peoples assertable against their own, and other, governments'.53
Gregory Fox and Georg Nolte, while sharing the view that elections are the central issue in a norm of democratic governance, have highlighted that holding regular elections which are free and fair may not always be sufficient to protect the democratic entitlement.54 Where candidates are opposed to liberal democracy, and are committed to the establishment in its place of, for instance, a theocratic political order, the question arises whether those candidates should be allowed to stand. Based on a survey of constitutional laws and traditions of diverse democratic states, Fox and Nolte contend that in customary international law the exclusion of such candidates is warranted, and perhaps even required. This reflects, they observe, a conception of democracy as not simply a set of procedures for ascertaining majority preferences, but rather as a means by which citizens are enabled to enjoy basic rights. Thus, Fox and Nolte find support in customary international law for an account of democracy that tolerates only the tolerant, and that in this respect insists on the value of `political liberalism'.55 More generally, they find support for an account of democracy that rests on the liberal notion that government is legitimated not just procedurally but also to the extent that it fulfils its side of the social contract and protects citizens' rights.
Those who advance the thesis of the emerging norm of democratic governance give close attention to the question of how compliance might be monitored and enforced. As noted, existing election-monitoring efforts and innovations with respect to participation in regional organizations are among the developments which persuaded the scholars that the norm was emerging in the first place. They consider a number of possible ways of strengthening enforcement. Franck proposes that the `older democracies' might volunteer to have their elections monitored, so as to encourage a custom of election-observation that might eventually evolve into an obligation.56 In the longer term, he proposes that democratic government might be set as a precondition to participation in all international organizations, including the United Nations, a proposal also developed by Fox.57 Franck suggests additionally that democratic government might be made a precondition for fiscal, trade and development benefits, and for the protection of UN and regional collective security measures. He strongly rejects as a means of enforcement unilateral intervention to install or reinstate elected governments, though he finds acceptable collective action at UN or regional level, even, in extreme cases, involving the use of force. Franck considers that, while the question of the scope and incidents of the norm of democratic governance is likely to remain on the international law agenda, the more pressing problem is the monitoring and enforcement of compliance. He urges that the future emphasis of international efforts should be laid accordingly.58
B. International Law and the `Liberal Peace'
The writers so far considered base their case for the emerging democratic entitlement on, above all, developments with respect to the holding of elections, international and regional election monitoring, and democratic conditionality in regional organizations. Those whose work will now be reviewed are also impressed with these developments. What strikes them as even more significant, however, is the correlation between liberal democracy and peace.59 This forms the basis of an argument that there should be a norm of democratic governance, and that the signs that it is emerging confirm this. The theorists of the right to democratic governance also draw support from the correlation between liberal democracy and peace to help explain and vindicate the right.60 Thus, the difference between the two sets of theses is largely one of emphasis. Both sets are at once empirically-based claims that a norm is emerging, speculations concerning its future as lex lata, explanations of why it is emerging, and justifications for its recognition in international law. And in both sets the so-called `liberal' or `democratic' `peace' plays a part.
Among the leading proponents of theses of this second type are Fernando Tesón61 and Anne-Marie Slaughter.62 In presenting the correlation between liberal democracy and peace, they take account of both speculative and empirical literature. With respect to the former, the key figure is Kant. These scholars, like the international relations analysts on whose work they draw, look to Kant for the insight that liberal states are likely to maintain peaceful relations with one another. Kant held that `perpetual peace' would depend on three things: every state having a `republican' constitution; a `pacific federation' being established among states, in the shape of an agreement to refrain from war against one another; and extensive international commerce, underpinned by `cosmopolitan law'. Republican government would discourage warfare, he believed, because, if government was accountable to citizens, the fact that citizens would - as soldiers, bereaved civilians, taxpayers, etc. - suffer the consequences of war would serve to engender caution in waging it.63
Internationalists have long attended to the points about the pacific federation and extensive international commerce. Particularly compelling in the aftermath of the twentieth century's two World Wars, these ideas are reflected in the League of Nations, the Kellogg-Briand Pact, the United Nations, and the General Agreement on Tariffs and Trade. Indeed, they inform the whole enterprise of modern international law and institution-building. But what, according to Tesón, Slaughter and the international relations analysts, has not received sufficient attention is Kant's insight about republican government. For these scholars the sort of `republican' state Kant had in mind corresponds in contemporary terms to a liberal democratic state.64 The Second World War, along with the bitter ideological rivalries of the Cold War, fuelled a realist outlook which got in the way of a proper appreciation of Kant's idea. Now that many countries of the world have embraced this liberal model, a fresh appraisal is called for. The notion that the prospects for peace may be greatest among liberal states should, these scholars maintain, no longer be ignored.
Slaughter and Tesón observe that international relations scholars have presented evidence which appears to back up this notion. Based on analysis of international wars since 1817, Michael Doyle, among others, has argued that a separate `zone of peace' does indeed exist among liberal states.65 This zone has steadily expanded as the number of liberal states has increased. Doyle has reported that throughout this period liberal states, while they have engaged in wars with non-liberal states, have remained at peace with one another. From this he has drawn the inference that liberal states are likely to be more pacific than non-liberal ones, not in general, but at least in their relations with other liberal states. The scope of this claim, the precise character of the link it posits, and the reasons for that link, remain the subject of debate. In its broad lines, however, the `democratic' or `liberal' `peace' is spoken of as a `fact'66 and `as close as anything we have to an empirical law in international relations'.67 It is an empirical law that, according to Slaughter and Tesón, has profound implications for international law.
The first implication is that international law should place the question of the legitimacy of governments on its agenda. It should abandon the idea that this is an exclusively national issue. The second implication is that international law should accept as legitimate only liberal democratic governments. It should stipulate that a legitimate government - one that has a right to exercise sovereign authority - is not just any government that wields factual power; it is a liberal democratic one. Tesón calls this a `Kantian theory of international law'. Slaughter employs the name given by international relations scholars, `liberal internationalism'.68 Internationalism evokes the second and third dimensions of Kant's formula for perpetual peace noted above, those that find reflection in international cooperation; liberal internationalism includes also the first dimension, `republican government'. Against an international law that is in thrall to realism and power politics, Slaughter counterposes a vision of an international law that takes seriously the connection between national political ideology and international relations, and in this way dedicates itself to (in the phrase of one international relations scholar) `grasping the democratic peace'.69
In effect this is a vision of a norm of democratic governance along the lines proposed in the first category of theses considered, though without the same emphasis on the notion of democracy as a human right.70 Slaughter thus finds signs that her vision is beginning to materialize in the developments to which Franck and others call attention. She also finds signs that the `zone of peace' is accompanied and reinforced by a `zone of law', in that transnational disputes involving only liberal states are more readily resolved through judicial procedures than is the case where non-liberal states are involved. She presents evidence that courts of liberal states cooperate with one another, and take into account each other's national interests, in a way that courts of non-liberal states do not, and in a way that courts of liberal states themselves do not where a dispute involving a non-liberal state is at issue.71
On the question of how this norm might be enforced, Tesón concurs with Franck and Fox that the UN and other international organizations might change their rules to admit only states with liberal democratic governments, and to allow only such governments to participate. In his view the unilateral use of force might even be justified in some circumstances, especially where violation of the norm is associated with gross abuses of human rights. Tesón also proposes that the law of treaties might be made to reflect the illegitimacy of non-liberal governments; such governments might, for instance, be deprived of the competence to create binding obligations in their own favour. Diplomatic law too might be changed so as to deny diplomatic status to representatives of non-liberal regimes.72 Slaughter differs in rejecting the right of unilateral intervention, and generally distances herself from Tesón's professed anti-statism. Nonetheless, she shares the view that liberal democracies have a `leadership' role to play in relation to liberal internationalist international law.73
As this discussion indicates, these claims revolve around a distinction between `liberal' or `liberal democratic' states and `non-liberal' states. It is worth pausing at this point to note more fully how the theorists understand this distinction. Slaughter defines a liberal state as, in broad terms, a state with `juridical equality, constitutional protections of individual rights, representative republican governments, and market economies based on private property rights'.74 This uncontroversial definition corresponds closely to that used by Doyle and other international relations analysts in their work on the `liberal peace'.75 Tesón adopts a similar approach, variously referring to the legitimate state of his `Kantian theory of international law' as a `democratic state', `free state', `liberal democracy' and `form of political organisation that provides full respect for human rights'.76 For both scholars the key feature of a liberal state, which explains its irenic character (at least vis-à-vis other liberal states), is the fact that there are powerful checks on the exercise of public power - constraints that operate principally through the periodic recall of legislators, the separation of powers and the protection of civil and political rights.
43 See the references cited at note 1. The thesis has earlier roots,
which can be found, e.g., in Steiner, `Political Participation as a Human
Right', 1 Harv. Hum. Rts Ybk (1988) 77.
45 Franck 1992, at 52. Franck is not referring to the
three-generational scheme used (and debated) in human rights commentary,
according to which civil and political rights are the first generation;
economic, social and cultural rights are the second; and peoples' rights are
the third.
48 Franck 1992; Franck 1995, ch. 4; and Franck 1994, passim.
49 See, e.g., Fox, supra note 3 and Cerna, supra note
3.
50 Cerna, supra note 3. In connection with applications for
membership from Central and Eastern European States, the Council of Europe has
begun to require evidence of commitment to democracy. See, e.g., `Report on the
Legal Order of the Russian Federation', Council of Europe Doc. AS/Bur/Russia 7
(1994), reprinted at 15 Hum. Rts L. J. (1994) 249. The Organisation of
American States has long had this as a formal - though, for much of the OAS's
life, unenforced - requirement for OAS member states. See the Declaration of
Santiago, adopted at the Fifth Meeting of Consultation of Ministers of Foreign
Affairs, August 1959, reprinted in T. Buergenthal and R. Norris (eds.),
Human Rights: The Inter-American System (hereinafter Buergenthal and
Norris), Binder 1, Booklet 6, 134. More recently, the OAS has sanctioned the
further step of engaging in collective action to secure the installation, or
reinstatement, of democratic government in the event that a coup occurs. See
OAS General Assembly Resolution 1080 (adopted 5 June 1991) reprinted in
Buergenthal and Norris, Binder 2, Booklet 7.6, 43; and Protocol of Amendments
to the Charter of the OAS (`Protocol of Washington') (adopted 14 December
1992), OAS AG/DOC.11 (XVI-E/92).
54 Fox and Nolte, supra note 3. They have in mind particularly
the case of Algeria.
55 See J. Rawls, Political Liberalism (1993).
56 Concerning this and the other proposals considered here, see
Franck 1992.
59 The scope of the correlation that is claimed to exist will be
discussed below.
60 See, e.g., Franck 1995, at 134-137, and Fox and Nolte,
supra note 3 , at 61-63.
62 See the references to Slaughter's work cited at note 2. Slaughter
1995 develops a more general `Liberal model' of international law. `Liberalism'
is presented as an account of how some - liberal - states `do behave rather
than how they should behave' (at 508). But `Liberal' theory appears to be
envisaged as serving a normative function as well, inasmuch as Slaughter evokes
the possibility that this theory might become `normatively applicable to all
States even if positively descriptive of only some' (at 538). See further
infra, section III.
63 See I. Kant (H. Nisbet, trans.), `Perpetual Peace: A Philosophical
Sketch' (1795), in H. Reiss (ed.), Kant: Political Writings (1991), at
93 et seq.
64 If Kant himself drew a sharp distinction between a republican
constitution and a democratic one, this was because his conception of democracy
was a pre-modern one. His frequently quoted definition of a `republican'
constitution entails three principles: `firstly, the principle of
freedom for all members of society (as men); secondly, the principle of
dependence of everyone upon a single common legislation (as subjects);
and thirdly, the principle of legal equality for everyone (as
citizens)'. He wrote that `republicanism [is] that political principle whereby
the executive power ... is separated from the legislative power', and that
`republican' government is, in principle, `representative'. Ibid, at
99-102.
65 Doyle, `Kant, Liberal Legacies and Foreign Affairs', 12
Philosophy & Public Affairs (1983) 205 (Part 1) and 323 (Part 2).
For a survey of relevant empirical literature, see B. Russett, Grasping the
Democratic Peace (1993), ch. 1.
66 Russett, supra note 64 (Ch.1: `The Fact of
Democratic Peace').
67 Levy, `Domestic Politics and War', 18 J.
Interdisciplinary History (1988) 653, 662.
68 For her general `model' of international law, developed in recent
work, Slaughter prefers the term `Liberal', and distinguishes a `Liberal'
theory of international relations from `Wilsonian liberal internationalism'.
See Slaughter 1995, at 508 et seq. for her definition of `Liberal' in
this context.
70 Tesón does, however, argue that international law should
accord legitimacy only to liberal democratic states not just for prudential
reasons but also because this is morally justified. His `Kantian theory'
includes the idea that governments should be required to respect liberal rights
because this is the right thing to do. See Tesón 1992, esp. 81-84.
71 Slaughter 1992b. See Slaughter 1995 for further development of
this argument. Slaughter claims, for instance, that interaction between the
executive and legislative branches of government is also greater among liberal
states than among non-liberal states or between liberal and non-liberal states.
73 Slaughter 1992a, at 404 and 394. Doyle for this reason expresses
concern at what he takes to be the decline of the United States from hegemonic
status. See Doyle, supra note 64, at 233-235.
74 Slaughter, 1992b, at 1909. This is largely reiterated, though the
need for market economies based on private property rights is separately
stated, in Slaughter 1995, at 511-152.
75 See, e.g., Doyle, supra note 64, at 206.
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