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.