This attitude is as old as international law and has usually constituted the dividing line between natural law and positivism. While this classical antagonism no longer suffices to describe the state of contemporary scholarship, 95 it is interesting to note that, even today, many commentators working on the question of democracy in international law tend to channel their aspirations through legal scholarship. Indeed, although most areas of scholarly research have weathered such an inclination, 96 the scholarly thinking about democratic governance in international law is an area where this leaning has been most prominent.
One of the most common manifestations of such attitude is, for instance, found in the contemporary constitutionalist accounts of international law, 97 according to which democracy is elevated into a constitutional principle of the international legal order. It is equally being witnessed in the international legal scholarship pertaining to democratic governance in international law. Indeed, among the many abovementioned scholars who have embraced the idea that international law enshrines a requirement as to the democratic origin of governments, many have been convinced that change of international law with respect to domestic governance could be achieved through progressive scholarly interpretations.
It comes down to the old belief of international legal scholars that they not only are commentators but that they also take part in the law-making in their capacity as scholars — a belief actually nurtured by Article 38 1 d of the Statute of the International Court of Justice which scholars relish referring to. This is especially true as regards those scholars who have tried to re-interpret the concept of self-determination beyond its decolonization-restricted scope with a view to deducing a principle of democracy. Others have tried to live up to the classical inductive methodology to establish customary international law, although they have then lowered the standard of general and consistent practice and that of opinio juris.
A third attitude could equally explain the amenability of legal scholars to the principle of democratic legitimacy. The legal scholarship having been interested in the study of the principle of democratic legitimacy also bespeaks an inclination to see the world in black and white and the correlative tendency to draw categories and statuses.
Indeed, a principle of democratic legitimacy allows a taxonomy between different categories of sovereign states and, possibly, between different sorts of rights and privileges. In that sense, the principle of democratic legitimacy has helped legal scholars to conceptualize and rationalize the volatile and highly fact-dependent question of statehood. While the theories of the fundamental rights of the state have yet to be revived, the introduction of a principle of democratic legitimacy makes possible such differentiations in the legal status of states and their respective rights.
These three leanings observed in the international legal scholarship are only a few of the many inclinations which pervade contemporary studies on democratic governance in international law. This is not the place to evaluate them. It is ultimately argued here that only the awareness thereof, if superimposed on the realization of the circular movements of the practice and legal scholarship depicted here, can preserve the authority of scholarly research on questions of democratic governance in international law, especially at a time when empirical studies point to a de-emphasizing of the democratic origin of governments in practice.
Although many of the observations made here have remained speculative in nature, this article, despite going down a different route from that followed by Susan Marks, has similarly tried to demonstrate that, when it comes to regulating domestic governance through international law, both the practice and legal scholarship have moved in a circle over the last 20 years. It has more specifically demonstrated that practice and international legal scholarship originally started with a regulation of domestic governance centred on classical political and civil rights, subsequently approaching it from the standpoint of a principle of democratic legitimacy based on the democratic origin of governments, before finally returning to a traditional — and probably more comfortable — human rights-based conception of domestic governance.
Shedding some light on these empirical and scholarly dynamics does certainly not call for a disregard of early scholarly studies of the principle of democratic legitimacy in the international legal order. First, as was explained above, some of the changes in the international legal system in the aftermath of the Cold War will certainly outlive the current return to policies centred on classical human rights and good governance.
Indeed, although the democratic origin of government may possibly take a back seat in the foreign policies of states and in the agenda of international legal scholarship, this parameter will continue to bear upon the evaluation of the legitimacy of governments in the years to come. Secondly, these early studies about the principle of democratic legitimacy will long remain of great importance as the practice of the years — is still too uncertain and fluctuating for any definite lesson to be drawn. Above all, if any lesson can be learned from the years —, it is thanks to the scholarly efforts devoted to the study of the changes brought about by the end of the Cold War in terms of domestic governance.
Many of these studies have usefully demonstrated that international law reached an unprecedented degree of regulation of domestic governance which possibly took the form of an obligation pertaining to the democratic origin of government. While the relevance of studies on democracy of the first decade that followed the end of the Cold War is not by any means put into question by the argument put forward here, the possible fall of democratic governance currently observed in practice nonetheless shows that these early studies must now be complemented by new scholarly inquiries if one wants correctly to capture the fluctuating state of the practice and legal scholarship on the question.
In that sense, the argument put forward here leads to a paradoxical conclusion. Indeed, the possible fall of the principle of democratic legitimacy observed in contemporary practice entails renewed scholarly attention being paid to the principle of democratic legitimacy. If that were to be the case, it is hoped that subsequent research will be carried out with a greater awareness of the empirical and scholarly dynamics which this modest article has sought to unearth. Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide.
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1 1989–2010: From Human Rights to a Requirement of Democratic Origin (the Rise?)
Volume Article Contents. Concluding Remarks: Lessons from a Possible Interlude. Oxford Academic. Google Scholar. Cite Citation.
Permissions Icon Permissions. Abstract Although going down a different path, this article reaches similar conclusions to those formulated by Susan Marks.
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For a classical account see L. Oppenheim, International Law 6th edn. Fox and B. Roth eds , Democratic Governance and International Law , at 1, Many of these seminal works are reproduced in ibid. For a critical appraisal of that literature see Marks, supra note 1. Barbero, Democracia y Derecho Internacional ; B.
Hafner et al. Mehdi ed. Klabbers, A. Peters, and G. Corten et al. See contra N. Petersen, Demokratie als teleologisches Prinzip. Riefler ed. See, e. On this topic see E. See generally S. This tendency to install democracies through the international administration of territories has occurred even with the veiled support of non-democratic states, as if these states acknowledge that democracy is the only admissible political regime: see, e.
Petersen, Demokratie als teleologisches Prinzip , supra note 12, at 89 this is what he calls the principle of Democratic Teleology. It is noteworthy that some of these missions were led by non-democratic states as if non-democratic states themselves are coming to terms with the ascendancy of democracy over any other kind of political regimes. Wolfrum ed. The most obvious example is the government of the People's Republic of China which is seen as legitimate by almost all countries in the world although it does not rest on any free and fair electoral process.
The same cannot be said with respect to Pakistan since the government has relentlessly pledged to organize democratic elections. See infra note See generally Fox and Roth eds. For one example consider the events in Pakistan. In particular, see the interview of President Musharraf on 11 Nov. Musharraf has since stepped down from military leadership: see, e. Also relevant are the developments in Myanmar.
About the Author
On this issue see, e. See also L. Diamond, Developing Democracy: Toward Consolidation , at 8—9. In the same vein see Pippan, supra note 12 at 7.
Dr. Razib Iqbal
See contra Roth, supra note 27, at Fox, supra note See also Binder, supra note 23, at Franck's right to democratic governance is itself very much grounded in participatory rights of human rights treaties as well as the right to self-determination. See Franck, supra note 11, at In the same vein see also J.
Ibegbu, Right to Democracy in International Law Tomuschat ed. Cassese, Self-Determination of Peoples. Bernhardt ed. For a criticism of that approach see Petersen, supra note Franck's right to democratic governance is primarily grounded in self-determination.
Wolfgang Kellerer (studasesatver.cf)
See Franck, supra note Abstract in PDF-file. Hagemann H. Jensen T. Skripov A. Meeting , Istanbul , Turkey , Aug. Acta Crystallogr. Jepsen L.