International Law and the Entitlement to Democracy After War

Abstract

Since the end of the Cold War, the international community has engaged in two tasks that run contrary to traditional notions of state sovereignty. first is the reconstruction of domestic political institutions in states emerging from civil second is the promotion of liberal democracy as the preferred form of national governance. Whether one understands state sovereignty in territorial or functional terms, both tasks break new ground. At the heart of most Westphalian conceptions of state autonomy is the capacity for self-government. International law prior to the end of the Cold War was highly protective of how states selected their leaders and designed their constitutional systems. As a respected international law treatise stated in 1905, The Law of Nations prescribes no rules as regards the kind of head a State may have. Every State is, naturally, independent regarding this point, possessing the faculty of adopting any Constitution according to its discretion. (1) It is commonplace that state sovereignty has never been absolute, either in theory or practice; however, for the international community to involve itself in matters of internal governance--let alone to specify a model of liberal democracy as the normative ideal--intrudes upon functions that even the most permeable conceptions of sovereignty have regarded as wholly domestic. These assumptions have now changed. External actors, led primarily by the United Nations, have become negotiators of peace agreements to end civil wars; drafters of new constitutions, electoral laws, and judicial procedures; and supervisors of all aspects of postwar transitions. These postconflict reconstruction or peacebuilding missions (the terms are used interchangeably) have taken place on every continent. They have become so common that, at the end of the twentieth century, it was the rare civil conflict that ended without the UN being assigned an important role in the state's reconstruction. (2) A UN panel has defined peacebuilding as activities undertaken on the far side of conflict to reassemble the foundations of peace and provide the tools for building on those foundations something that is more than just the absence of war. (3) Between 1991 and 2002, seventeen UN peacebuilding missions were deployed. (4) During the same period, international law has increasingly identified liberal democracy as the preferred form of national governance. (5) Scholars have identified an emerging entitlement in international law--the view that representative government, chosen in fair and periodic elections, is a human right of all citizens. (6) state practice underpinning this emerging norm is widespread and diverse: resolutions of the Security Council urging free and fair elections; clarification of the treaty-based right to political participation by international human rights bodies; refusal of states and international organizations to recognize regimes taking power by extraconstitutional means; the conditioning of foreign aid on comportment with norms; and the conditioning of treaty relations on the maintenance of democratic institutions. These and other similar acts are the raw data from which norms of customary international law emerge. Postconflict reconstruction initiatives bring together these two normative strains of reconstructing state institutions after conflict and democracy promotion. When the UN has contributed to the political and legal structure of postconflict societies, it has invariably drawn on the body of emerging democratic norms. While this cross-pollination is not often explicit, the institutions and procedures it has recommended for postconflict states find direct parallels in the body of human rights norms concerning political participation. On issues ranging from universal suffrage to party pluralism to media access for opposition groups, international norms and the practice of democracy promotion missions are remarkably congruent. …