The Fall of the Wall and the Principle of Democracy

Freedom lovers celebrating the 20 year anniversary of the fall of the Berlin Wall were shocked when faced with a New Berlin Wall a few days ago. U2’s concert in Berlin on November 5th came with massive barriers to block the view of those without one of the free tickets. Restricting mobility, excluding certain people from a free concert and building a wall in Berlin challenges the very democratic principles which prevailed in this city some time ago. The New Berlin Wall and the always present question of the division along the 38th parallel of the Korean peninsula brings up the issue of how international law has changed since November 9th, 1989 – in particular, whether there is a right of democratic governance.

The fall of the Berlin Wall stands as a symbol of democratization, a culmination of a sweeping force that brought many European communist governments to an end. As the boundary between communism and democracy, restriction and supposed freedom came down, the question of the right to democratic governance in international law arose.

As a starting off point, the ICJ in its 1986 Nicaragua decision held that international law did not have any customary norms regarding internal forms of government. Such a view is consistent with the fundamental (read: out-dated) principle of sovereignty – the one which finds its roots in the Peace of Westphalia. However, sovereignty, like many other principles, is subject to change. A new understanding of sovereignty following the end of the Cold War saw the international community intervene often through the Security Council. Today, sovereignty is threatened to be diminished even further as States question the legality of intervention without explicit Security Council authorization.

On the treaty level, article 25 of the ICCPR is often cited as a source in support of the right to democracy. It gives citizens the right to take part in genuine and periodic elections (25(b)). While the Covenant predates 1989, scholars relied on it in the 90s to establish the democracy principle. However, there are some States which have ratified the Covenant but still do not have veritable electoral democracies today. Nevertheless, through the ICCPR and other human rights treaties, the international community has made a commitment to offer individuals the right to choose by whom they will be governed.

A second source for this right is found in UN General Assembly Resolutions. While they do not represent international law per se, they can form opinio juris – a necessary aspect of customary international law. Amongst the various relevant resolutions, Resolution 55/96 (adopted in 2000) calls upon states to promote democracy. Niels Petersen, a Senior Research Fellow at the Max Planck Institute for Research on Collective Goods, Bonn, argues that the resolution does not oblige states to achieve democracy itself but rather to take steps towards democracy. The focus is on the process and transition rather than the end result.

Some regional organizations show a commitment to the principle of democracy. Democracy is firmly entrenched in the constitutive documents of the EU and of the Organization of American States. Moreover, the 2000 Constitutive Act of the African Union promotes democratic principles and institutions as a paramount purpose of the Union.

A final source in support for a democratic principle in international law comes from interventions done in order to implement democracy. Some unilateral American interventions have been condemned by the international community and as such do not offer solid ground from which to establish the principle. However, collective interventions done with Security Council authorization offer further support for the existence of the right. Petersen offers Resolution 940 as an example of the Security Council effectively restoring the internal order in Haiti, while using the guise of international peace and security. A second example given is the ECOMOG intervention in Sierra Leone, done in the name of democracy, which received ex-post facto SC authorization (Resolutions 1132 and 1156).

Since the wall has fallen, there seems to be some existence of a democratic principle within international law. A concern for state sovereignty, as Petersen argues in his dissertation, does however curb this right to a focus on the process rather than the actual result. Twenty years after East Germans flowed freely into West Berlin, one must wonder whether the existence of an obligation to democratize will be the blueprint for Korean reunification.

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3 Responses to “The Fall of the Wall and the Principle of Democracy”

  1. Nafay Choudhury says:

    Excellent piece Lee. While I cannot claim to be a specialist by any means on this topic, two particular points came to mind when reading your article. The first is the extent to which the international community (and I guess I mean the Western/developed world in particular) should have control over the democratization process. The past elections in Gaza, where Hamas took the majority, sets a example where the aspirations of a people, embodied by a popular election, was not received well by certain members of the international community.

    My second point concerns the phrase “obligation to democratize”, which raised a “yellow flag” in my mind. I wonder to what extent democratization fully parallels the various aspirations of individuals in various parts of the world. Can it not be the case that democratization serves to impede the values of some? For example, consensus models are the norm in many indigenous communities in North America and “tribal” communities in parts of Africa and Asia. Such examples raise serious questions about the claim of democratization as a clearly universal principle.

  2. Brett Hodgins says:

    In response to your second point Nafay, although I do not believe that enforcing democratization militarily should ever be pursued (and Lee’s two positive examples, in Haiti and Sierra Leone, were not examples of democratization but rather of reinforcing existing democratic processes), I don’t think it can ever be the case that (non-forced) democratization serves to impede the values of anyone. Democracy does not need to be in the exact form (an adversarial party-based system) that we see in Canada or the United States. Democracy is simply allowing the people to choose the form and members of their government through elections on a one-vote-per-person basis. A democratic system could easily adopt a more consensual system of government where this is culturally the norm.

    The consensual “tribal” systems of government you mention exist today only at the micro-level of government; no national government in Africa or Asia is (or could be) simply a scaled-up form of this. Questioning the universality of the principle that all citizens must have a say in the form and composition of their government is based on a cultural relativism motivated by a misplaced apprehension of being “disrespectful” towards foreign cultures. This line of argument is used by apologists for disgusting regimes which oppress their own people and then urge the West not to interfere, hiding behind a shield of Western political correctness and guilt over colonial histories.

    I know this certainly wasn’t what you were arguing, Nafay. But the idea that we mustn’t “push our values” (democracy) on unrepresentative governments abroad raises an equivalent “yellow flag” in my own mind.

  3. Lee Rovinescu says:

    Nafay, Brett – Thank you both for your insightful comments. I was hoping for some sort of dialogue to arise. I apologize for the delay in my response.
    While I discussed electoral systems as a component of democracy, I should clarify that this does not necessarily have to be a part of the broader definition of democracy. Instead, a community that does not have periodic elections can still reinforce certain principles inherent in a democratic society (e.g. freedom of movement, which was not available to the East Germans). A second example would be the concept of separating powers between the different branches of government. Fusing the legislative, executive and judicial branches together without a system of “checks and balances” is contrary to the ideals of democracy. Niels Petersen discusses the broader definition of democracy in his paper that I hyper-linked above.


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