Caution in what you wish for: the consequences of a right to democracy.

AuthorMitchell, Sara McLaughlin
  1. INTRODUCTION II. GUARANTEEING AND EXPANDING THE RIGHT OF DEMOCRACY A. Military Intervention B. Imposed Democracies C. Economic Sanctions D. Noncoercive Measures E. Some Conclusions III. CONSEQUENCES OF A MORE DEMOCRATIC WORLD A. The "Kantian" Peace B. Systemic Democratic Peace C. Conflict Management Strategies IV. CONCLUSION I. INTRODUCTION

    The publication of Thomas Franck's seminal article The Emerging Right to Democratic Governance in 1992 (1) began a vigorous scholarly discussion over a right to democracy. (2) The debate has occurred along several different dimensions, notably whether or not the right indeed exists at the present time and its evolution, (3) different cultural conceptions of the right, (4) and what role the international community has in protecting that right, (5) among others. Notably absent has been a concern with the consequences associated with guaranteeing or expanding an international legal right to democracy, as well as that right's effect on a world composed largely of democratic states.

    While the scholarly discourse has focused on legal elements of global democratization, the world itself has undergone dramatic changes. From 1974 through 1990, dozens of states experienced regime transitions to democracy in what Huntington called the "third wave of democratization." (6) In the last two decades, the pace has slowed, but nevertheless the trend has continued with nearly 40 states joining the democratic family and 96 of 164 countries (58.5%) classified as democratic by 2010. (7) Most recently, the uprisings in the Middle East ("the Arab Spring") have taken the democratization movement to the one region

    of the globe where democracy was largely absent. At this writing, it is not clear whether the final products of popular uprisings in Egypt, Tunisia, Libya, and elsewhere will necessarily be democratic regimes. (8) Nevertheless, such cases illustrate the importance of understanding not merely whether an abstract legal right exists, but what the consequences of extending such a right might entail.

    Democracy includes more than a stated condition for a country; indeed, North Korea's official name is the "Democratic People's Republic of Korea," but few would regard that country as exhibiting processes and rights remotely classifiable as democratic. A democracy includes certain common elements related to institutions and political rights. The Polity IV Project, the most widely used scholarly database on democracy and authoritarianism, reflects these conceptual and operational criteria:

    Democracy is conceived as three essential, interdependent elements. One is the presence of institutions and procedures through which citizens can express effective preferences about alternative policies and leaders. Second is the existence of institutionalized constraints on the exercise of power by the executive. Third is the guarantee of civil liberties to all citizens in their daily lives and in acts of political participation. Other aspects of plural democracy, such as the rule of law, systems of checks and balances, freedom of the press, and so on are means to, or specific manifestations of, these general principles. (9) The purpose of our analysis is to evaluate some of the consequences of a right to democracy. An evaluation standard of practical utility and desirable outcomes has been adopted in assessing other legal controversies, most notably those involving the use of force. (10) Yet such a metric has not yet found its way into legal debates on democracy. We intend to fill that gap with two foci. This Article examines how the international community might promote a right to democracy, and whether this will produce results that support the existing international legal and political order, or rather, produce unintended and deleterious consequences.

    First, protecting democratic rights in existing states and expanding the right to encompass other states necessarily means that the international community, and leading states in particular, might need to carry out a variety of actions, including the use of force. If a right to democracy precipitates external military intervention or economic sanctions to support existing or nascent democratic regimes, how effective are such actions? The first part of the Article examines whether military interventions are successful in protecting and expanding the right of democracy. The conclusions are decidedly mixed with some success stories, but high costs and failures in other cases. In a related fashion, democracy might also be forced on a society whose authoritarian government resists democratic change. This Article looks at instances where this has occurred (sometimes along with imposed constitutions) and assesses how often and under what conditions these imposed governments hold up in the long run. This analysis will allow us to evaluate the utility of military occupation and collective military efforts to spread the right to democracy. We also consider what effect economic sanctions and non-coercive measures have on democratization. Our general conclusion is that the international community is limited in its ability to ensure democracy through the use of military force and other coercive mechanisms. Although the outcomes are not uniform, this suggests uncertain prospects at best for long-term democracy in Iraq, Afghanistan, and various states in the Middle East.

    Second, a right to democracy should increase the number of democratic states in the world. This has a number of beneficial consequences for political behavior and international legal observance. The so-called "democratic peace," which posits that democratic states do not fight wars with other democracies, suggests that more democracies should lead to more peace and thereby greater observance of international legal prohibitions on the use of force. (11) An increasingly democratic world also means that democratic and nondemocratic states alike will avail themselves of peaceful conflict resolution mechanisms, including international adjudication and arbitration. Nevertheless, democratization is often a lengthy process. There is no guarantee that democratization will come to full fruition in all instances, as the case of Russia illustrates. More significantly, the democratization process itself might be a particularly dangerous one, raising the likelihood of civil unrest and international conflict with neighbors. (12) We might also observe an increased willingness of states to sign and observe a variety of international treaties including those dealing with human rights, but this is not necessarily the case, as the United States has proven to be an exception to many of these patterns. With a few qualifications, however, our conclusion is that the long-term consequences of expanded democracy around the globe are positive and promote the value of peaceful conflict resolution.

    We refer to existing debates in the legal literature to frame some of these concerns, but we also rely extensively on empirical work from the international relations discipline to address those concerns and understand the consequences of a fight to democracy. Doing so reflects what Shaffer and Ginsburg refer to as the "empirical turn in international legal scholarship." (13)

  2. GUARANTEEING AND EXPANDING THE RIGHT OF DEMOCRACY

    An international right to democracy does not in itself guarantee that more states will become democratic or that extant democratic states will remain that way. (14) The coterminous existence of various human rights standards (e.g., women's rights evidenced in CEDAW) (15) and the repeated and widespread violations of said standards are illustrative. Almost all writings on the right to democracy ignore the processes under which this right is achieved and rarely discuss any additional legal rules that might be necessary to achieve it. Yet we know that any new "normative" rule that expands rights requires compatible elements of the legal "operating" system or other normative rules to ensure that the rights are implemented and then enforced. (16) In this Article, we ignore issues concerning which actors hold the right to democracy and what legal remedies, including court structures, exist or might be created to handle disputes that might arise over their rights. Rather we consider what kind of actions undertaken by the international legal community might be brought to bear to protect the right to democracy and encourage its expansion. In this Part, we consider the viability of military intervention, occupations (including imposed constitutions), and economic sanctions in the support of a right to democracy.

    1. Military Intervention

      Traditional conceptions of intemational law on the use of military force prohibit military intervention and actions. Fundamental to these rules is Article 2, Section 4 of the UN Charter: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." (17)

      Such a prohibition places a presumption against military action, and thus any permitted uses of force have to be exceptions to this limitation. The primary exception to the prohibition against military force is the long-recognized right of self-defense. This right is reflected in Article 51 of the UN Charter:

      Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems...

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