Revisiting the human right to democracy: a positivist analysis

ABSTRACT

In this article I investigate from the perspective of legal positivism whether a human right to democracy exists. Based on the analysis of various universal and regional human rights treaties, I argue that such a right is indeed recognised under international law. The human right to democracy obliges states to let citizens take part in political decision-making and to conduct free elections, while it allows for a diversity of political systems executing these obligations. In response to the argument that the human right to democracy is far distant from political reality, I argue that while many states are governed by non-democratic regimes, they do not contest the validity of the democratic norm. Moreover, the human right to democracy can be instrumental in addressing flaws in democratic systems or the absence of democracy altogether. The article provides examples of how this works in practice by discussing the case law of various judicial and quasi-judicial human rights review bodies. I conclude by arguing that the human right to democracy as recognised by international law fits well within Benjamin Gregg’s normative framework of The Human Rights State (2016).

KEYWORDS:

• Human right to democracy
• human rights
• international human rights law
• ICCPR
• right to political participation

Acknowledgements

The author would like to thank Başak Bağlayan, Professor Benjamin Gregg, Professor Matthew Happold, René Wolfsteller, as well as my anonymous peer reviewer for their helpful comments on earlier drafts of this article.

Disclosure statement

No potential conflict of interest was reported by the author.

Note on contributor

Johannes Hendrik Fahner ([email protected]) holds degrees in History, Law, and International Relations from Utrecht University, as well as a Research Master Degree in Public International Law from the University of Amsterdam. Currently, Johannes Hendrik pursues a PhD in Public International Law under the supervision of Professor Matthew Happold (University of Luxembourg) and Professor Pieter Jan Kuijper (University of Amsterdam). His research project focuses on the applicability of principles of judicial deference in the context of international adjudication in the fields of human rights, trade and investment law.

Notes

1. UN Security Council, Resolution 2337, SC/12688 (2017).

2. Benjamin Gregg, The Human Rights State: Justice Within and Beyond Sovereign Nations (Philadelphia: University of Pennsylvania Press, 2016), 175, 177.

3. Ibid., 177, 187.

4. Ibid., 182.

5. Ibid., 175, 179.

6. Ibid., 179, 181.

7. Ibid., 177.

8. For example, Joshua Cohen, ‘Is There a Human Right to Democracy?’, in The Egalitarian Conscience. Essays in Honour of G.A. Cohen, ed. Christine Sypnowich (Oxford: Oxford University Press, 2006); Alyssa Bernstein, ‘A Human Right to Democracy? Legitimacy and Intervention’, in Rawls’ Law of Peoples. A Realistic Utopia?, ed. Rex Martin and David Reidy (Malden: Blackwell Publishing, 2007); Charles Beitz, The Idea of Human Rights (Oxford: Oxford University Press, 2009), 174–86; Thomas Christiano, ‘An Instrumental Argument for a Human Right to Democracy’, Philosophy and Public Affairs 39, no. 2 (2011): 142–76; David Reidy, ‘On the Human Right to Democracy: Searching for Sense without Stilts’, Journal of Social Philosophy 43, no. 2 (2012): 177–203; Matthew Lister, ‘There is No Human Right to Democracy. But May We Promote It Anyway?’, Stanford Journal of International Law 48, no. 2 (2012): 257–76; Seyla Benhabib, ‘Is There a Human Right to Democracy? Beyond Interventionism and Indifference’, in Philosophical Dimensions of Human Rights. Some Contemporary Views, ed. Christoph Broszies and Henning Hahn (Dordrecht: Springer, 2012); Carol C. Gould, ‘The Human Right to Democracy and its Global Import’, in Human Rights. The Hard Questions, ed. Cindy Holder and David Reidy (Cambridge: Cambridge University Press, 2013); Thomas Christiano, ‘An Egalitarian Argument for a Human Right to Democracy’, in ibid.; Ludvig Beckman, ‘The Right to Democracy and the Human Right to Vote: The Instrumental Argument Rejected’, Journal of Human Rights 13 (2014): 381–94; Fabienne Peter, ‘A Human Right to Democracy?’, in Philosophical Foundations of Human Rights, ed. Rowan Cruft, S. Matthew Liao and Massimo Renzo (Oxford: Oxford University Press, 2015).

9. Other contributions addressing this question are for example Gregory Fox and Brad Roth, eds, Democratic Governance and International Law (Cambridge: Cambridge University Press, 2000); Roland Rich, ‘Bringing Democracy into International Law’, Journal of Democracy 12, no. 3 (2001): 20–34; Jude I. Ibegbu, Right to Democracy in International Law (Lewiston: Edwin Mellen Press, 2003); Denise Brühl-Moser, ‘Recht auf Demokratie im Völkerrecht’, in Human Rights, Democracy and the Rule of Law. Liber Amicorum Luzius Wildhaber, ed. Stephan Breitenmoser et al. (Zürich: Dike, 2007); Jean D’Aspremont, L’état non démocratique en droit international. Etude critique du droit international positif et de la pratique contemporaine (Paris: Pedone, 2008); Henri Steiner, ‘Two Sides of the Same Coin?: Democracy and International Human Rights’, Israel Law Review 41, no. 3 (2008): 445–76; Hilary Charlesworth, ‘Is There a Human Right to Democracy?’, in Human Rights. The Hard Questions, ed. Holder and Reidy; Khalifa Alfadhel, The Right to Democracy in International Law: Between Procedure, Substance and the Philosophy of John Rawls (London: Routledge, 2017). See also the discussion in European Journal of International Law 22, no. 2 (2011): Susan Marks, ‘What Has Become of the Emerging Right to Democratic Governance?’, 507–24; Jean d’Aspremont, ‘The Rise and Fall of Democracy Governance in International Law: A Reply to Susan Marks’, 549–70.

10. See for a natural law-based criticism of positivism, Stephen Hall, ‘The Persistent Spectre: Natural Law, International Order and the Limits of Legal Positivism’, European Journal of International Law 12, no. 2 (2001): 301. I acknowledge the limits of positivism, but contend that natural law simply fails in a pluralist world.

11. Positivism is not necessarily incompatible with Gregg’s social constructionism. Some have studied international law itself as a form of social construction. See Carlo Focarelli, International Law as Social Construct: The Struggle for Global Justice (Oxford: Oxford University Press, 2012), 1: ‘international law is believed to be a global law of humankind’, with non-state actors and civil society playing an increasingly important role in its formation. See also Susan Waltz, ‘Universalizing Human Rights: The Role of Small States in the Construction of the Universal Declaration of Human Rights’, Human Rights Quarterly 23, no. 1 (2001): 44–72; Susan Waltz, ‘Reclaiming and Rebuilding the History of the Universal Declaration of Human Rights’, Third World Quarterly 23, no. 3 (2002): 437–48.

12. See David Beetham, Democracy and Human Rights (Cambridge: Polity Press, 2000), 89–114.

13. See, on ‘human rights’, for example, Marie-Bénédicte Dembour, ‘What Are Human Rights? Four Schools of Thought’, Human Rights Quarterly 32 (2010): 1–20. See, on ‘democracy’, for example, John Dunn, ed., Democracy. The Unfinished Journey. 508 BC to AD1993 (Oxford: Oxford University Press, 1992); David Held, Models of Democracy. Third Edition (Stanford, CA: Stanford University Press, 2006).

14. Given the limited space available here, I do not address two related topics, namely the right to self-determination under international human rights law and the democratic quality of international law itself.

15. ICCPR, Preamble. Comp. UDHR, Preamble.

16. Comp. James Nickel and David Reidy, ‘Philosophy’, in International Human Rights Law, ed. Daniel Moeckli, Sangeeta Shah, and Sandesh Sivakumaran (Oxford: Oxford University Press, 2010), 39: ‘Human rights advocates make strong claims. They assert that all people everywhere have high-priority, specific, and duty-imposing rights.’

17. John Rawls, The Law of Peoples. With ‘The Idea of Public Reason Revisited’ (Cambridge, MA: Harvard University Press, 1999), 78–81. Gregg’s ‘minimalist’ understanding of human rights is comparable to that of Rawls. It seems that for Gregg, norms only qualify as human rights if they justify coercive intervention or universal jurisdiction. Gregg, The Human Rights State, 179–80, 185–7, 197–8.

18. Compare ICJ, Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits Judgment of 27 June 1986, paras 267–8: ‘where human rights are protected by international conventions, that protection takes the form of such arrangements for monitoring or ensuring respect for human rights as are provided for in the conventions themselves … [T]he use of force could not be the appropriate method to monitor or ensure such respect.’

19. See for example Anita Horn, ‘Moral and Political Conceptions of Human Rights: Rethinking the Distinction’, International Journal of Human Rights 20, no. 6 (2016): 724.

20. Benjamin Gregg, Human Rights as Social Construction (Cambridge: Cambridge University Press, 2012).

21. Gregg, The Human Rights State, 2.

22. Ibid., 176.

23. UN Human Rights Council, ‘Report of the Independent Expert on the Promotion of a Democratic and Equitable International Order, Alfred Maurice de Zayas’, A/HRC/21/45 (2012), para. 6.

24. For example, Jack Donnelly, Universal Human Rights in Theory and Practice. Second Edition (Ithaca, NY: Cornell University Press, 2003), 190. See also Hauke Brunkhorst, ‘Constitutionalism and Democracy in the World Society’, in The Twilight of Constitutionalism?, ed. Petra Dobner and Martin Loughlin (Oxford: Oxford University Press, 2012), 198.

25. A search in ‘Constitute’, a database of domestic constitutions developed by the Comparative Constitutions Project at the University of Texas at Austin, provides 120 results for the search term ‘democracy’, and 175 results for the term ‘democratic’.

26. Henry Steiner, ‘Political Participation as a Human Right’, Harvard Human Rights Yearbook 1 (1988): 89.

27. Armin von Bogdandy, ‘Globalization and Europe: How to Square Democracy, Globalization, and International Law’, European Journal of International Law 15, no. 5 (2004): 889–90.

28. John Dryzek, ‘Can There Be a Human Right to an Essentially Contested Concept? The Case of Democracy’, Journal of Politics 78, no. 2 (2016): 363. See also Susan Marks, The Riddle of All Constitutions. International Law, Democracy and the Critique of Ideology (Oxford: Oxford University Press, 2000), 149–50: ‘democratic ideas … must not be reduced to any particular set of institutions and practices. Instead, they must be permitted to retain their character as tools for criticizing actuality and orienting change’.

29. Anne Peters, ‘Membership in the Global Constitutional Community’, in The Constitutionalization of International Law, ed. Jan Klabbers, Anne Peters, and Geir Ulfstein (Oxford: Oxford University Press, 2011), 273. See also, more critically, Brad Roth, Governmental Illegitimacy in International Law (Oxford: Oxford University Press, 2000), 324–44.

30. Comp. Michael Freeman, ‘Rights’, in Encyclopedia of Democratic Thought, ed. Paul Barry Clarke and Joe Foweraker (New York: Routledge, 2001), 632: ‘The relation between rights and democracy is complex in theory because the deep moral grounds of rights and democracy are both similar and different. They are similar in that both rights and democracy rest on respect for individual persons and their autonomy.’ See also Donnelly, Universal Human Rights in Theory and Practice, 191: ‘Democracy and human rights share a commitment to the ideal of equal political dignity for all.’

31. For the prevalence of democracy in human rights law documents, see further below. For the inclusion of human rights in a definition of democracy, see for example Inter-American Democratic Charter, Article 3. See also UN Human Rights Council, Resolution 19/36, ‘Human Rights, Democracy and the Rule of Law’, A/HRC/RES/19/36 (2012), para. 1: ‘democracy includes respect for all human rights and fundamental freedoms’.

32. See for example Gregg, The Human Rights State, 177; Marc Plattner, ‘Liberalism and Democracy. Can’t Have One Without the Other’, Foreign Affairs 77 (1998): 171; James Crawford, ‘Democracy in International Law – A Reprise’, in Democratic Governance and International Law, ed. Fox and Roth, 114: ‘democracy is as much the product of the exercise of civil and political rights (…), as it is the precondition for them’. See also Michael Goodhart, Democracy as Human Rights. Freedom and Equality in the Age of Globalization (New York: Routledge, 2005). See also the preamble of the European Convention on Human Rights, affirming the importance of an ‘effective political democracy’ for the protection of human rights.

33. Tony Evans, ‘If Democracy, Then Human Rights?’, Third World Quarterly 22, no. 4 (2001): 628.

34. Comp. Peter Jones, Rights (Basingstoke: Palgrave Macmillan, 1994), 179: ‘it is quite implausible to suppose that an individual, all on his own, could have a right that an entire community should organize its public life in a democratic fashion’.

35. In a similar vein, it is contested to what extent democracies can adopt undemocratic policies. See Svetlana Tyulkina, Militant Democracy. Undemocratic Political Parties and Beyond (New York: Routledge, 2015).

36. See Donnelly, Universal Human Rights in Theory and Practice, 194–5.

37. For interesting examples from international practice see ECtHR, Tyrer v. United Kingdom, Application No. 5856/72 (1978); IACtHR, Gelman v. Uruguay, Series C No. 221 (2011).

38. See for an overview Hurst Hannum, ‘The Status of the Universal Declaration of Human Rights in National and International Law’, Georgia Journal of International and Comparative Law 25, no. 1 (1996): 340.

39. UDHR, Article 21. See for the situation before 1948, Gregory Fox, ‘The Right to Political Participation in International Law’, in Democratic Governance and International Law, ed. Fox and Roth, 50–3.

40. The drafting of Article 25 was based on Article 21 UDHR, as well as several Soviet drafts and a Yugoslav-French draft. Manfred Nowak, UN Covenant on Civil and Political Rights. CCPR Commentary. Second Edition (Kehl: Engel, 2005), 566–8.

41. Over 20 states, including Malaysia, Myanmar, Singapore and Vatican City, have neither signed nor ratified the ICCPR. Seven states, including China and Cuba, have signed but not ratified the ICCPR. See the UN Treaty Collection (https://treaties.un.org) for further details.

42. ICCPR, Article 25. Modeme argues that the differences between de UDHR and the ICCPR demonstrate a weaker obligation in the latter. Lawrence Modeme, ‘Democratic Entitlement in International Law? Still Far from the Promised Land’ (2010), http://www.culturaldiplomacy.org/academy/content/pdf/participant-papers/2010biec/Democratic_Entitlement_In_International_Law_-_Still_far_from_the_Promised_Land.pdf.

43. ICJ, Military and Paramilitary Activities in and against Nicaragua, para. 258.

44. Ibid., para. 259. According to James Crawford, the court should have referred to Nicaragua’s obligations under inter alia the ICCPR. James Crawford, ‘Democracy and International Law’, British Yearbook of International Law 44 (1993): 121. The court’s reluctance to acknowledge Nicaragua’s obligations in this regard may relate to the context of the case, in which the US sought to justify its interventions. Comp. para. 262: ‘[o]f its nature, a commitment like this is one of a category which, if violated, cannot justify the use of force against a sovereign State’.

45. According to Henry Steiner, Article 25(a) was left sufficiently ‘abstract and porous’, in order not to put at risk the global support for the ICCPR. Steiner, ‘Political Participation as a Human Right’, 86.

46. Samantha Besson, ‘The Human Right to Democracy – A Moral Defence with a Legal Nuance’ (2010), 4, http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-UD(2010)003-e: ‘the human right to democracy has become an integral part of positive international law’; Christina M. Cerna, ‘Universal Democracy: An International Legal Right or the Pipe Dream of the West’, NYU Journal of International Law and Politics 27 no. 2 (1995): 291: ‘democracy has achieved universal recognition as an international legal right’; Reginald Ezetah, ‘The Right to Democracy: A Qualitative Inquiry’, Brooklyn Journal of International Law (1997): 508: ‘[t]he right to a democratic governance is clearly borne out by article 21’; D’Aspremont, L’Etat non démocratique en droit international, 265: ‘il ne fait aucun doute qu’il existe une obligation conventionelle d’être démocratique’; Adam McBeth, Justine Nolan, and Simon Rice, The International Law of Human Rights (Oxford: Oxford University Press, 2011), 109: ‘the right to political participation effectively confers a right to a democratic system – or at least a system containing fundamental democratic elements’. But, on the other hand, Modeme, ‘Democratic Entitlement in International Law?’: ‘treaties (…) have not created a right to democracy (…) in international law’; Fabienne Peter, ‘The Human Right to Political Participation’, Journal of Ethics and Social Philosophy 7, no. 1 (2013): 11: ‘this right need not imply a right to democracy’. See for an intermediate position Jan Wouters, Bart de Meester, and Cedric Ryngaert, ‘Democracy and International Law’, Leuven Interdisciplinary Research Group on International Agreements and Development Working Paper No. 5 (2004): 17.

47. Peter, ‘The Human Right to Political Participation’, 11–12. For an even more restricted interpretation see Modeme, ‘Democratic Entitlement in International Law?’, arguing that Article 25 only guarantees the right to vote in elections in states that already have a democratic system. In my view, this understanding is difficult to reconcile with the text of Article 25.

48. Crawford, ‘Democracy and International Law’, 113–14.

49. HRC, ‘General Comment 25’, CCPR/C/21/Rev.1/Add.7 (1996), para. 1. Comp. Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary. Third Edition (Oxford: Oxford University Press, 2013), 758: ‘Article 25(a) generally guarantees a right for all people to be governed democratically by an accountable government.’ See also Committee on Economic, Social and Cultural Rights, ‘General Comment 3’, E/1991/23 (1990), para. 8, holding that the Covenant on Social, Economic and Cultural Rights does not prescribe any particular form of government, ‘provided only that it is democratic’.

50. HRC, ‘General Comment 25’, para. 5.

51. Ibid., para. 6.

52. Ibid., para. 7. In the case of Marshall v. Canada (also known as Mikmaq Tribal Society v. Canada), the committee explained that Article 25(a) does not leave every individual the choice of whether to participate in government directly or through representatives: ‘Surely, it cannot be the meaning of article 25(a) of the Covenant that every citizen may determine either to take part directly in the conduct of public affairs or to leave it to freely chosen representatives. It is for the legal and constitutional system of the State party to provide for the modalities of such participation.’ HRC, Marshall v. Canada, Communication No. 205/1986 (1991), para. 5.4. Joseph and Castan read this case as suggesting that ‘article 25 does not guarantee a citizen a right of direct participation in public affairs, beyond the specific instances mentioned in article 25(b) and (c)’, but they note that later case law has modified this approach. Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights, 735–7. See also Ezetah, ‘The Right to Democracy’, 515; Mariya Riekkinen, ‘Can Russian Citizens Influence Public Decision-Making? An Evaluation against the Background of Article 25 of the ICCPR with Some Comparative Observations’, European Public Law 17, no. 4 (2011): 684.

53. HRC, ‘General Comment 25’, paras 15, 17; HRC, Chiiko Bwalya v. Zambia, Communication No. 314/1988 (1993), para. 6.6. See also Alecia Johns, ‘The Case for Political Candidacy as a Fundamental Human Right’, Human Rights Law Review 16, no. 1 (2016): 29–54.

54. HRC, ‘General Comment 25’, para. 17. See also HRC, M.A. v. Italy, Communication No. 117/1981 (1984).

55. IACtHR, The Word ‘Laws’ in Article 30 of the American Convention on Human Rights, Advisory Opinion OC-6/86 (1986), para. 34.

56. ECHR, Preamble. See also Susan Marks, ‘The European Convention on Human Rights and its Democratic Society’, British Yearbook of International Law 66 (1996): 209–38; Steven Wheatley, ‘Democracy in International Law: A European Perspective’, International and Comparative Law Quarterly 51, no. 2 (2002): 225–48.

57. ECtHR, United Communist Party of Turkey and Others v. Turkey, Application No. 19392/92 (1998), para. 45. The same argument could be made for the ICCPR, given its references to ‘a democratic society’ in the limitation clauses of Articles 14, 21 and 22. See HRC, Katsora et al. v. Belarus, Communication No. 1383/2005 (2010), para. 8.2.

58. ECHR, Protocol No. 1, Article 3.

59. ECtHR, Aziz v. Cyprus, Application No. 6994/01 (2004), para. 25. See also ECtHR, Mathieu-Mohin and Clerfayt v. Belgium, Application No. 9267/81 (1987), paras 48–50.

60. Inter-American Democratic Charter, Article 1. See for general information on the document César Gaviria Trujillo, ‘The Inter-American Democratic Charter at Ten: A Commitment by the Americas to the Defense and Promotion of Democracy’, Latin American Policy 3 (2012): 18–25. See also other contributions in the same issue. See also Jorge Heine and Brigitte Weiffen, 21st Century Democracy Promotion in the Americas: Standing Up for the Polity (New York: Routledge, 2015).

61. Inter-American Democratic Charter, Article 3.

62. See Christopher Joyner, ‘The United Nations and Democracy’, Global Governance 5, no. 3 (1999): 333–57; Kirsten Haack, The United Nations Democracy Agenda. A Conceptual History (Manchester: Manchester University Press, 2011). See for an example of the General Assembly, UNGA, Resolution 43/157, ‘Enhancing the Effectiveness of the Principle of Periodic and Genuine Elections’ (1988).

63. UN Commission on Human Rights, Resolution 1999/57, ‘Promotion of the Right to Democracy’ (1999).

64. Ibid., para. 1.

65. Ibid., para. 2. See for another list, including ‘a pluralistic system of political parties and organizations’, UN Commission on Human Rights, Resolution 2002/46, ‘Further Measures to Promote and Consolidate Democracy’ (2002), para. 1.

66. For example, Jude Ibegbu, Right to Democracy in International Law; D’Aspremont, L’etat non democratique en droit international, 270–93.

67. Thomas Franck, ‘The Emerging Right to Democratic Governance’, American Journal of International Law 86, no. 1 (1992): 49. See also Samuel Huntington, The Third Wave. Democratization in the Late Twentieth Century (Norman: University of Oklahoma Press, 1991); Thomas Franck, ‘Legitimacy and the Democratic Entitlement’, in Democratic Governance and International Law, ed. Fox and Roth, 25–47. See also Susan Marks, The Riddle of All Constitutions, 37–42. For critical replies to Franck, see Thomas Carothers, ‘Empirical Perspectives on the Emerging Norm of Democracy in International Law’, Proceedings of the American Society of International Law 86 (1992): 261–7; Gerry Simpson, ‘Imagined Consent: Democratic Liberalism in International Legal Theory’, Australian Yearbook of International Law 15 (1994): 123–7.

68. Franck, ‘The Emerging Right to Democratic Governance’, 90.

69. Boutros Boutros-Ghali, An Agenda for Democratization (New York: United Nations, 1996), 1.

70. See Sean Murphy, ‘Democratic Legitimacy and the Recognition of States and Governments’, in Democratic Governance and International Law, ed. Fox and Roth, 123–54; Yves Beigbeder, International Monitoring of Plebiscites, Referenda and National Elections. Self-determination and Transition to Democracy (Dordrecht: Martinus Nijhoff, 1994).

71. See for some explanations for this Robert Dahl, Democracy and Its Critics (New Haven, CT: Yale University Press, 1989), 244–64.

72. Gregg, The Human Rights State, 182.

73. For example, Freedom House, ‘Freedom in the World 2016’ (2016), https://freedomhouse.org/sites/default/files/FH_FITW_Report_2016.pdf; The Economist Intelligence Unit, ‘Democracy Index 2015. Democracy in an Age of Anxiety’ (2015), http://www.eiu.com/Handlers/WhitepaperHandler.ashx?fi=EIU-Democracy-Index-2015.pdf&mode=wp&campaignid=DemocracyIndex2015.

74. Gerardo Munck, Measuring Democracy. A Bridge Between Scholarship and Politics (Baltimore, MD: Johns Hopkins University Press, 2009).

75. Larry Diamond, ‘Facing Up to the Democratic Recession’, Journal of Democracy 26, no. 1 (2015): 141–2. See also Russell Dalton, Democratic Challenges – Democratic Choices. The Erosion of Political Support in Advanced Industrial Democracies (Oxford: Oxford University Press, 2007).

76. Diamond, ‘Facing Up to the Democratic Recession’, 142. See also the special issue Global Policy 6 (2015), ‘Changing the European Debate: A Rollback of Democracy’.

77. D’Aspremont, ‘The Rise and Fall of Democracy Governance in International Law’, 564.

78. See, for example, Hilary Charlesworth, ‘Customary International Law and the Nicaragua Case’, Australian Yearbook of International Law 11 (1984): 1–31.

79. D’Aspremont, ‘The Rise and Fall of Democracy Governance in International Law’, 556. See also D’Aspremont, L’Etat non démocratique en droit international, 285.

80. Gregg, The Human Rights State, 182.

81. Ibid., 175.

82. A historic example is the so-called ‘Act of Free Choice’, which was organised by Indonesia in 1969 to determine whether the former Dutch colony of Western New Guinea should become independent or integrated within Indonesia. The ‘Act’ consisted of a vote by around 1,000 men to represent the entire population of 800,000, which confirmed accession to Indonesia. The referendum was widely contested and only few consider it a ‘free embrace’. İlker Gökhan Şen, Sovereignty Referendums in International and Constitutional Law (Cham: Springer, 2015), 104.

83. Diamond, ‘Facing Up to the Democratic Recession’, 153.

84. See, in a similar vein, Amartya Sen, ‘Democracy as a Universal Value’, Journal of Democracy 10, no. 3 (1999): 3–17.

85. For the case law of the ECtHR see for example Hans-Martien ten Napel, ‘The European Court of Human Rights and Political Rights: The Need for More Guidance’, European Constitutional Law Review 5, no. 3 (2009): 464–80; see also Iulia Motoc and Ineta Ziemele, eds, The Impact of the ECHR on Democratic Change in Central and Eastern Europe: Judicial Perspectives (Cambridge: Cambridge University Press, 2016).

86. For examples concerning other States see HRC, Pietraroia v. Uruguay, Communication No. 44/1979 (1981), para. 16; HRC, Dissanayake v. Sri Lanka, Communication No. 1373/2005 (2008), para. 8.5.

87. HRC, Sinitsin v. Belarus, Communication No. 1047/2002 (2007), para. 7.3; HRC, Sudalenko v. Belarus, Communication No. 1354/2005 (2010), para. 6.7. But see HRC, A.P. v. Russia, Communication No. 1857/2008 (2013), where the HRC found that the mere requirement to be listed by a registered political party did not constitute a violation.

88. HRC, Sudalenko v. Belarus, Communication No. 1992/2010 (2015).

89. HRC, Korneenko and Milinkevich v. Belarus, Communication No. 1553/2007 (2009), para. 8.4. An earlier case of Korneenko, concerning his non-eligibility, was held inadmissible, as the contested validity of certain signatures in support of his candidacy was reviewed by domestic courts. HRC, Korneenko v. Belarus, Communication No. 1358/2005 (2008). See also HRC, Korneenko et al. v. Belarus, Communication No. 1274/2004 (2006), in which the HRC found a violation because of the dissolution of Korneenko’s movement ‘Civil Initiatives’.

90. Disenfranchisement of persons deprived of liberty has been denounced by the HRC and the ECtHR. ECtHR, Hirst v. United Kingdom (No. 2), Application No. 74025/01 (2005); HRC, Yevdokimov and Rezanov v. Russia, Communication No. 1410/2005 (2011).

91. HRC, Paksas v. Lithuania, Communication No. 2155/2012 (2014), para. 8.4. See also ECtHR, Paksas v. Lithuania, Application No. 34932/04 (2011).

92. IACHR, Montt v. Guatemala, Report No. 30/93 (1993), para. 34.

93. ECOWAS Court of Justice, Congrès pour la Démocratie et le Progrès et al. v. Burkina Faso, Affaire No. ECW/CCJ/APP/19/15 (2015), para. 28.

94. Ibid., paras 31–2.

95. ACHPR, Constitutional Rights Project v. Nigeria, Communication No. 102/93 (1998), para. 48.

96. Ibid., para. 50.

97. IACHR, Aylwin Azócar et al. v. Chile, Report No. 137/99 (1999), para. 31.

98. Ibid., paras 39, 41.

99. Ibid., para. 46.

100. Ibid., para. 67.

101. Ibid., paras 76, 99.

102. Ibid., para. 115.

103. IACHR, Statehood Solidarity Committee v. US, Report No. 98/03 (2003), para. 88.

104. Ibid.

105. Ibid., para. 89.

106. Ibid., para. 101.

107. Ibid., paras 101, 110.

108. HRC, Costa v. Spain, Communication No. 1745/2007 (2008).

109. Ibid., para. 3.2. In Mátyus v. Slovakia, the HRC found a violation because of the manner in which election districts were drawn. Mátyus v. Slovakia, Communication No. 923/2000 (2002), para. 9.2.

110. HRC, Beydon et al. v. France, Communication No. 1400/2005 (2005), para. 4.5. See also André Brun v. France, Communication No. 1453/2006 (2006), para. 6.4; HRC, ‘General Comment 25’, para. 8.

111. ACHPR, Sir Dawda K. Jawara v. Gambia, Communication Nos 147/95, 149/96 (2000), para. 73.

112. ACHPR, Lawyers for Human Rights v. Swaziland, Communication No. 251/2002 (2005), para. 53.

113. See various of the contributions listed supra note 8.

114. Gregg, The Human Rights State, 197.

115. Ibid., 197–8. On the latter question, see David Wippman, ‘Pro-Democratic Intervention’, in The Oxford Handbook of the Use of Force in International Law, ed. Mar Weller (Oxford: Oxford University Press, 2015).

116. Comp. Same Varayudej, ‘A Right to Democracy in International Law: Its Implications for Asia’, Annual Survey of International and Comparative Law 12, no. 1 (2006): 17: ‘[t]hose who have supported the right of pro-democratic intervention need to establish not only that a right to democratic entitlement is now accepted as a rule of customary international law by the international community as a whole, but also that a right to democratic governance will necessarily entail the right of a State or “coalition of the willing” to use force to establish, maintain or restore a democratic regime in another State.’

117. Gregg, The Human Rights State, 179.

118. Ibid., 175.

119. Comp. Bernstein, ‘A Human Right to Democracy?’, 279.

120. Comp. Gregg, The Human Rights State, 177: ‘Democracy is not the only way in which author and addressee can coincide, but it is the way most correct and compelling. Democracy and the criterion of the free embraceability are not only compatible; they are mutually reinforcing.’

121. Ibid., 176.

122. Jeremy Waldron, ‘The Core of the Case Against Judicial Review’, Yale Law Journal 115 (2006): 1346.

123. Jeremy Waldron, ‘Five to Four: Why Do Bare Majorities Rule on Courts’, Yale Law Journal 123 (2014): 1719.

124. Samantha Besson, ‘Whose Constitution(s)? International Law, Constitutionalism, and Democracy’, in Ruling the World? Constitutionalism, International Law, and Global Governance, ed. Jeffrey Dunoff and Joel Trachtman (Cambridge: Cambridge University Press, 2013), 392–3.

125. Gregg, The Human Rights State, 179.

126. Ibid.

127. It should be noted that having a nationality as such is considered a human right, for example in Article 24 ICCPR.

128. For example, Alison Kesby, The Right to Have Rights: Citizenship, Humanity, and International Law (Oxford: Oxford University Press, 2012); Marie-Benedicte Dembour, ed., When Humans Become Migrants. Study of the European Court of Human Rights with an Inter-American Counterpoint (Oxford: Oxford University Press, 2015).

129. See Seyla Benhabib, ‘On the Alleged Conflict between Democracy and International Law’, Ethics and International Affairs 19, no. 1 (2005): 85–100.

130. A promising approach is found in the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (25 June 1998). See also David Held, ‘The Changing Contours of Political Community. Rethinking Democracy in the Context of Globalization’, in Global Democracy: Key Debates, ed. B. Holden (London: Routledge, 2000); Henry Teune, ‘Citizenship Deterritorialized: Global Citizenships’, in The Future of Citizenship, ed. Jose V. Ciprut (Cambridge, MA: MIT Press, 2008), 229–52.

131. Gregg, The Human Rights State, 179.

132. Ibid., 181. See for an argument in favour of a global democracy, Richard Falk and Andrew Strauss, ‘Toward Global Parliament’, Foreign Affairs 80 (2001): 212–20. See also Daniele Archibugi, David Held, and Martin Köhler, eds, Re-imagining Political Community. Studies in Cosmopolitan Democracy (Stanford, CA: Stanford University Press, 1998); Carol C. Gould, Globalizing Democracy and Human Rights (Cambridge: Cambridge University Press, 2004), 159–82.

133. This reverts back to the classic debate between universalism and relativism. See Alison Dundes Renteln, ‘The Unanswered Challenge of Relativism and the Consequences for Human Rights’, Human Rights Quarterly 7 (1985): 514–40, with further references.

134. The term ‘common sympathies’ is found in the work of John Stuart Mill. See Rawls, The Law of Peoples, 23–5. See also Benhabib, ‘On the Alleged Conflict between Democracy and International Law’, 96, arguing that the term ‘people’ has two dimensions, an ethnos or ‘community of shared fate, memories, and moral sympathies’ and a demos or ‘the democratically enfranchised totality of all citizens’. Benhabib observes that these two categories do not always overlap.

135. Gregg, The Human Rights State, 179–80.