Gaming for 'good governance' and the democratic ideal: from universalist rhetoric to Pacific realities seen through a Fijian microscope.

• Author: Maogoto, Jackson Nyamuya

Abstract

At the start of the 21st century, the international community appears open, cosmopolitan, accommodating and neutral with sovereignty seen as a set of powers and competencies that can be enjoyed by all States regardless of their particular cultural identities. However, it should not be forgotten that sovereignty is a flexible instrument that readily lends itself to the powerful imperatives of the civilizing mission, in part because through that mission, sovereignty extends and expands its reach and scope. This article canvasses the international rubric and dynamic that informs the democracy and good governance crusade before moving the discussion to a regional setting targeting Pacific Island Countries with Fiji as a case study. It seeks to argue that democratic experimentalism, not the so-called 'McDonaldisation' (globalisation as homogenisation) of the world, is important. This is based on the premise that 'McDonaldisation' minimises the complex way in which the local interacts with the international. The efficacy of democratic experimentalism is that it acknowledges that rights are not based on first principles, but that, they are inevitably socially constructed and historically contingent, and thus closely connected with both individual and group identity.

Introduction

The historical development of human rights law provides the normative basis for the right to democracy. There is a persuasive case to be made for a democratic tradition in international law. Richard Barnes notes: 'Even the strongest critics of democracy are not denying the value of the concept, but rather they are cautious about accepting it blindly and ignoring the consequences and other potentially valid ideological perspectives.' (1) The Universal Declaration on Human Rights is the premier instrument on the right to democracy, and it contains the clearest statement on the issue of democracy. (2) While United Nations General Assembly ('GA') Resolutions are often regarded as not binding, it must be noted that the Universal Declaration of Human Rights is not just another GA Resolution. 'It has become an edifying referent for state constitutions, whose contents sometimes are a wholesale adoption of provisions of the Universal Declaration (3) Consequently, the conclusion that the declaration is a mere recommendation is based on narrow logic indeed. If the fundamental principles of the United Nations ('UN') are collectivism and sovereign equality, then one must concede at least that the declaration carries the collective moral force of the opinions of most sovereign States. The GA's Uniting for Peace Resolution (4) demonstrated the residual legal capacity of the GA. In any event, there can be no better evidence of a general practice accepted as law than a declaration of States reached in the most widely representative and democratic organ of the UN.

The influence of the Universal Declaration of Human Rights on subsequent international and regional developments regarding democratic governance is testament that it has effectively shed whatever stigma attended the circumstances of its birth. The eminence of the declaration is evident in its endorsement as a reflection of customary international law. (5) In fact the UN observes that the broadest legally binding human rights agreements, the International Covenant on Economic, Social and Cultural Rights (6) and the International Covenant on Civil and Political Rights (7) have 'take[n] the provisions of the Universal Declaration a step further by making them binding upon States parties'. (8)

Article 21 of the Universal Declaration of Human Rights emphasises the overriding importance of the will of the people. (9) Therefore, a government that is not based on the consent of the governed is not democratic. In addition, the government must be substantially representative of all distinct groups in the country. It follows that representation should be manifest in active as opposed to nominal participation such that 'representation and participation (are) experienced as part of a continuum'. (10) To be legitimate and democratic in international law, the emerging government must be based on the consent of the people, and participants must be representative of all national and distinct political groups in the country, not just those with access to resources and votes.

In some countries, including several in Europe and elsewhere, the problem is just the opposite: elections frequently and often predictably result in governments that are too responsive to the popular will of an ethnic majority, and insufficiently attentive, or openly hostile to, minority group interests. (11) The classic result in such cases is the tyranny of the majority. In other countries, elected governments abandon democratic principles altogether after attaining office. (12) In such cases, political actors make a mockery of traditional instruments and practices of democratic electoral practices. What is clear from the history of political evolution is that the acceptance, ownership, and entrenchment of democratic ideals and practices involves the infusion of democratic social organisation in key State mechanisms besides the current over-reliance on formal procedural democratic processes. Concern with furthering democracy requires moving beyond the procedural motions of democracy, such as universal suffrage, to the realisation of democracy in substance. While formal mechanisms may constitute necessary components of a democratic society, they fall far short of being sufficient in achieving the substance of democracy. Failure to provide sustained investment in the growth and strengthening of domestic roots in stake-holder communities will result in a poor crop at best, political conflict and war at worst.

The international community has a crucial role to play in providing the right environment for new democracies to get off the ground. At both the international and regional level, democracy has been recognised as an international norm. Unfortunately, however, support for democracy is still expressed in general terms. To this day, no clear-cut international consensus exists that adequately lays down the criteria that should be used to judge whether a particular government is substantively 'democratic' or not. (13) In part, this is because many States still do not share the West's enthusiasm for liberal, parliamentary democracy. (14) Crucially also, many States that invoke the internal noninterference norm, proscribed under article 2(7) of the Charter of the United Nations, (15) remain firmly convinced that the character of a State's government and the management of its internal affairs are fundamentally matters of domestic concern. (16) Some States, however, acknowledge that democratic governance has become a subject of international commitments and therefore of international concern, but believe strongly that change should be effected through dialogue and negotiation rather than through any other more pragmatic measures. (17) This is of course the ideal path, but it is a course that is open to be ignored or toyed with by those wishing to appear to be learning how to play fairly.

This article canvasses the international rubric and dynamic that informs the democracy and good governance crusade before moving the discussion to a regional setting targeting Pacific Island Countries, with Fiji as a case study. It seeks to argue that democratic experimentalism, not the so-called 'McDonaldization' (globalisation as homogenisation) of the world, is important. (18) This is based on the premise that 'McDonaldization' minimises the complex way in which the local interacts with the international. (19) The efficacy of democratic experimentalism is that it acknowledges that rights are not based on first principles, but that they are inevitably socially constructed and historically contingent, and thus closely connected with both individual and group identity. (20)

1. Enshrining & Championing the Democratic Ideal in International Law

A number of articles in the Universal Declaration of Human Rights substantiate provisions of the UN Charter relating to the rights of the citizenry in member States. Articles 55 and 56 of the UN Charter contain specific provisions in this respect. Article 55(c) commits the UN to the promotion of 'universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion'(21). Under article 56, 'All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in article 55'. (22)

The UN has promulgated instruments that are collectively equivalent to an International Bill of Rights (23) and helped gather international consensus for the idea that the populations of States have rights under international law. This extends to the protection of these rights, even against the government. Beginning with the UN Charter and the Universal Declaration of Human Rights, the UN has constructed a normative framework for the realisation of rights for the people. (24) The framework has been sustained over time by the actions of States in signing and ratifying various international human rights Agreements and related instruments, some of which are now part of customary international law. The international collaborative efforts involving UN organs, human rights workers and others have helped publicise the plight of the oppressed millions who yearn for more personal liberties and freedom from arbitrary detention, execution and political purges.

Among the human rights deemed fit objects of international concern is the right of political participation. This right is embodied in article 21 of the Universal Declaration of Human Rights, which states that 'the will of the people shall be the basis of the authority of government', and that 'this will shall be expressed in periodic...