Democracy and Human Rights: A Complex Relationship

Introduction

The importance of democracy in international law is increasing rapidly. Democracy is for instance used as a membership requirement by various organizations [1] and as a prerequisite for obtaining international financial support [2] or humanitarian aid. [3] The promotion, consolidation, defense or maintenance of democracy is also listed as a goal or fundamental principle of several regional and international organizations [4] . Even wars are currently being fought allegedly in the name of “the promotion and the spread of democracy.” [5]

However, in international law there does not exist a universally accepted definition of democracy. Regardless, there does appear to exist an international consensus on the existence of an indissoluble link between human rights and democracy. However, the exact nature of that link is unclear. It is the purpose of this article to explore the nature of the nexus between human rights and democracy.

Part one will examine how democracy is defined in international law and what methods can be used when doing so. Part two then focuses on the nature of the link between democracy and human rights.

Defining democracy in international law

Democracy a recent phenomenon

Contrary to other political theories such as communism, democracy does not have a(ny) founding father(s). Consequently democracy’s scope and meaning has not been developed by a limited number of people during a limited period of time. Conversely, democracy is a very old concept that can be traced back to ancient Greece. Etymologically the word is derived from the Greek “δημος” and “κ�?ατειν” which means respectively “people” and “power”. Throughout its long history, the concept has had several different meanings, some of which would be considered contrary to today’s interpretation. [6] Its current meaning is the result of a century long evolution. [7]

Regardless of this long and rich history, democracy in international law is a recent phenomenon. It was only after the Cold War that international law dared to address the issue of democracy which previously was considered to be a “domestic” issue and thus one not subject to international scrutiny. [8] In the literature this “shift” is explained by the events of 1989-1991 which led to the embrace of democracy in many countries, primarily in Eastern Europe. The “Third Wave of Democratization”, to use Samuel Huntington’s term, [9] led many scholars [10] , states and international organizations [11] to think about the idea of democracy as a legal principle. Despite the increased attention for the issue there does not exist a universally accepted definition of democracy.

Methods used in international law to define democracy

Defining democracy in international law is extremely difficult. Amongst legal scholars, disagreement even exist on whether the concept of democracy can überhaupt be defined in a way that is universally acceptable. Some authors claim that democracy is “the archetype of an essentially contested concept.” [12] “As it means different things to different people” they argue that “any attempts to define the concept would be meaningless at best and imperialistic at worst.” [13]

In international law the feasibility of defining democracy appears to be accepted. In the practice of states as exercised within a significant number of regional and international organizations and in the literature various definitions and circumscriptions of democracy can be found. However, disagreement exists on the exact content and/or phrasing of the definition.

From a theoretical standpoint, several methods can be used to define democracy, however none of them appears to be flawless. [14] One possible approach would be to look at nations generally referred to as democracies and define the concept according to certain features of those systems. Such an approach would not be useful as it is considered to be illogical to define democracy by induction from the practice of one political system. It would be no longer possible to praise that country for being democratic as a society cannot be praised for qualities which belong to it by definition rather than by political contrivance. [15]

A second method would be to define democracy based on an historical and or etymological analysis. [16] Given that the two words from which democracy has been derived are so ambiguous and broad [17] and given the recent nature of the legal debate on democracy this is not considered to be an appropriate method.

A third possible method would be to define democracy negatively i.e. stating what democracy is not. Such an approach has been used before in international law for instance the concept “civilians” in international humanitarian law is defined negatively. [18] This is a useful method as in human rights law it has been argued that examining the limits of a certain concept does provide a better insight into its meaning. [19] However, defining democracy negatively would lead to an open-ended definition giving leeway to more discussion. In international law an international consensus does appear to exist on certain non-democratic regimes such Apartheid and a Nazi regime. [20] One can hardly define democracy as a form of governance that does not constitute a regime of Apartheid and/or Nazi regime. Such a definition would not provide any further guidance to legal research aimed at establishing a legal framework to determine whether a nation is democratic.

A fourth method would be to define democracy according to certain basic principles. [21] The downside of this approach is that it is unclear which basic principles are withheld as core principles. [22] The latter method is used in international law and will therefore be withheld in this paper.

In international law, a multitude of circumscriptions of democracy can be found. The majority of them appear in policy documents and are phrased in a very general manner. Democracy is described in function of its constituent elements. It should however be noted that the list of constituent elements tends to differ in most descriptions.

In an effort to identify democracy’s core principles generally two approaches may be discerned: a minimalistic and a comprehensive one. [23] Supporters of the “minimalistic approach” consider democracy to be the sum of various composing elements and tend to limit the definition to one or several of them, generally the representative and participatory element. [24] Advocators of the “comprehensive approach” conversely consider democracy to more than just the sum of various elements. They believe the nexus between the various elements to be essential to the concept. [25]

The two approaches cannot be fully separated from each other. Some authors subscribe to both of them as they utilize a minimalistic approach out of practical concerns –however acknowledging the shortcomings and possible controversial character of such an approach- while ideologically favoring the comprehensive approach. [26]

Within the minimalistic approach an additional distinction is made in the literature, namely between formal and substance democracy. [27] Proponents of the former describe democracy as a method to producing governments, whereas believers in the latter define democracy as a form of governance acting in the people’s best interest i.e. they tend to stress the representative character of a democracy. Both approaches are closely connected and cannot be strictly separated from each other. [28]

Research shows that the majority of legal scholars –for whatever reason- tends to favor a minimalistic approach. Conversely, within the practice of international organizations a holistic approach seems to be preferred. [29] This may be explained by the fact that scholars are looking for specific criteria to determine whether a nation is democratic or are examining whether a right to democracy can or does exist in international law. Such research requires a detailed and specific definition of democracy. States, however, merely want to express their commitment to democracy in general. The documents in which they do so are generally political in nature the goal of which is not to create on any concrete obligations (see below). It has been correctly argued in the literature that these texts could only have been adopted by consensus due to the fact that they are written in such a general manner [30] and that the consensus would break down once one moves beyond the general discussions to the difficult issues of how democracy and human rights are to be interpreted and how they should be implemented or promoted. [31]

In conclusion, currently, there does not exist a universal consensus on one particular definition of democracy. However when looking at the vast array of definitions it becomes clear that one element appears to be present in all definitions, namely the respect for human rights. Minimalistic approaches tend to focus on specific elements or rights whereas holistic approaches stress the indissoluble link between democracy and human rights. The existence of some sort of link does not appear to be controversial or questioned, however the exact nature of the link is unclear. The following section will take a closer look at the nature of the connection between democracy and human rights.

The nexus between democracy and human rights

International consensus on the existence of a link between human rights and democracy

Without clarifying the concepts of democracy and human rights their interdependence has been recognized by many international and regional organizations inter alia the African Union [32] , the Organization of American States [33] , the European Union [34] , the Council of Europe [35] , the Organization for Security and Cooperation in Europe [36] , the Organisation Internationale de la Francophonie [37] , the Commonwealth [38] , the United Nations [39] , the Inter-Parliamentary Union [40] , the Community of Democracies [41] and by various Arab [42] and Asian [43] states.

As practically all nations are represented in one of these institutions, it may be concluded that there is an international consensus on the existence of a link between human rights and democracy.

The significance and scope of the universal recognition of a link between democracy and human rights should be put into perspective. Firstly, the meaning and scope of both terms is and remains controversial. One may not derive from the above that an international consensus is emerging on the content or scope of these two terms. [44]

Secondly, the existence of the link is recognized mainly in policy documents generally conceived not to be legally binding upon the participating states. However, it has convincingly been argued that the qualification of a policy document does not necessarily mean that it does not contain any legally binding norms as such documents may contain clauses stemming from international law, referring to international law or can be traced to international agreements by which the participating states are legally bound. [45] Rules contained in such documents can under certain conditions evolve to rules of customary international law. [46] The qualification as policy document does however influence the enforcement possibilities. [47]

It is noteworthy that the few documents which are legally binding are regional in nature. This can be explained by the fact that a regional consensus exists or can easier be achieved on the content of human rights (see below).

Thirdly, a universal consensus exists on the existence of a “link” between the two. The nature of that link is not specified and thus skeptics could rightfully argue that as the wording used is general in nature one could question whether a true consensus does exist on the nature of that link [48] .

The nexus between human rights and democracy

The references to the existence of a link between democracy and human rights can be divided into two groups. Some texts consider respect for human rights to be a prerequisite for democracy, or the other way around. Other texts list that democracy and human rights are interdependent and mutually reinforcing. The following section will examine the difference between these two approaches and its consequences and possible significance?

Respect for human rights is often perceived to be a prerequisite for democracy or vice versa namely that democracy constitutes a prerequisite for the respect of human rights. Sometimes respecting human rights is perceived to be one of a set of various elements, including amongst others -apart from respect for human rights- respect for the principles of the rule of law and separation of powers. [49] Other texts seem to consider respect for human rights as the only requirement that needs to be fulfilled in order to be considered to be a democracy. [50] For instance the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights for instance state “the expression “in a democratic society” shall be interpreted as imposing a further restriction on the limitation clauses it qualifies. The burden is upon a state imposing limitations so qualified to demonstrate that the limitations do not impair the democratic functioning of the society. While there is no single model of a democratic society, a society which recognizes and respects the human rights set forth in the United Nations Charter and the Universal Declaration of Human Rights may be viewed as meeting this definition”. [51]

Other texts reverse the order and consider democracy to a be a prerequisite for respecting human rights insinuating that in a democracy respect for human rights is best assured. [52]

Defining democracy in function of human rights is incorrect and problematic as it suggests the existence of a causal connection between the two. If a nation respects human rights it automatically may be considered to be a democracy and a democracy automatically respects human rights.

Respecting human rights does not automatically turn a nation into a democracy. Certain human rights can adequately be protected in non-democracies. Conversely, the above made insinuation that in a democracy respect for human rights is best assured is false. Empirical studies have illustrated that a democracy does not necessarily entail better protection of human rights. [53] Democracy may even exacerbate ethnic conflict and lead to greater violations of human rights especially in the period immediately following transition to a democratic system. Respect for human rights is only said to increase at the end of the democratization process i.e. when a democracy is well installed. [54]

In addition, longstanding democracies do not automatically provide the highest and best protection of human rights. For instance, in many democracies (e.g. Belgium and the United States) economic and social rights are not justiciable or only partly justiciable. Governments might provide a variety of welfare benefits including food and shelter, medical care and access to education. But citizens generally do not have the right to sue the government for such benefits in court. [55]

Often the term democracy is misused by nations claiming to be a democracy but massively violating human rights for instance the Democratic Republic of the Congo or the Democratic People’s Republic of Korea. [56] Thus “official” or “formal” democracies do not always adequately protect human rights. However, they perfectly can adequately protect certain human rights (while violating others).

The second and in my view more correct manner to identify the link between democracy and human rights is to describe both concepts as interdependent and mutually reinforcing. [57] Stressing the interdependence and mutual reinforcing character eliminates the causal connection between two concepts. “Interdependent” means that one cannot exist without the other. “Mutually reinforcing” means that both concepts directly or indirectly influence each other.

It is evident that a democracy cannot exist without human rights. It is also true that there is a greater likelihood that human rights are “better” respected. Democracy is often defined as a “value” (see above). Democracy comes from the people, it requires a political and cultural commitment. As such a democracy cannot be imposed from the outside as it consolidation requires a generation in time.

Proponents of the existence of a democratic entitlement in international law argue that the emergence of a democratic entitlement in international law has shed a new light on all existing rules and legislation including human rights. More specifically, these authors argue that a state can only be recognized if it is democratic [58] ; that the internal aspect of the right to self-determination only entails the rights to choose for a democratic form of governance [59] and/or that the use of military violence is allowed to promote and or defend/restore democracy when it is threatened. [60]

Both approaches do not resolve the following underlying issue. The phrase “respect for human rights” is a very vague as it is unclear what human rights are envisioned? Theoretically, all human rights are universal, indivisible and interdependent. [61] Thus, in order to be “democratic” all civil, political, economic, social and cultural rights would have to be respected. This would be problematic for the following reasons. First human rights appear to be an open-ended category of rights. [62] Secondly, all human rights treaties and texts contain a different set of rights. Moreover, not all nations accept all rights to be legally binding upon them [63] and different geographical regions tend to emphasize different human rights. [64] The interpretation and implementation may also vary according to the region. [65]

Secondly, the phrase does also not provide any clarity on the extent to which human rights must be respected or to what extent they may they be limited. In most human rights treaties certain human rights may be limited when “necessary in a democratic society”. This is a circular reasoning as on the one hand these texts recognize that a nation respecting human rights can be labeled democratic; on the other hand it is acknowledged that human rights may be limited in the event that they are democratic.

Conceptually democracy is linked to human rights. As many issues remain unsolved with regard to human rights, these issues reflect on the discussion of democracy. As such no true progress can ever be made with regard to democracy if no progress is made with regard to these outstanding human rights issues.

Conclusion

This article examined the link between democracy and human rights in international law. The importance of the research lies in the fact that democracy’s importance in international law is increasing rapidly, however no clarity appears to exist on its scope and content. Currently in international law there is no universal consensus on one particular definition of democracy. Regardless, there does appear to exist an international consensus on the existence of an indissoluble link between human rights and democracy. The exact nature of that link is unclear. As a closer look at the nature of that link can provide deeper insights into the meaning of democracy it was the purpose of this article to explore the nature of the nexus between human rights and democracy.

Part one examined how democracy is defined in international law and what methods can be used when doing so. Research has shown that there are several manners which may be used to define democracy and that all of them have certain flaws. International law favors the method of defining democracy in function of its underlying elements. Currently no consensus exists on one particular definition. Consequently many different circumscriptions of the term exist in international law. When looking at the vast array of these definitions it becomes clear that respect for human rights is present in all of these definitions.

Section of the paper then examined how respect for human rights relates to democracy. It has become clear that in international law two approaches exist: one accepts the existence of a causal link between the two terms, while the other considers both concepts to be interdependent and mutually enforcing. Research has shown that accepting the existence of a causal link between democracy and human rights is problematic for various reasons. Therefore the second approach was considered to be the better one. However, both approaches do not resolve standing issues with regard to the meaning of human rights. Due to the remaining unclarity surrounding the concept of human rights it would prove quasi impossible to define a universal acceptable “human rights standard” to determine whether a nation is democratic or not. Given that democracy’s fate is attached to that of human rights, as as long as no international consensus can be found on the exact content on human rights no true progress can be made on the issue of democracy.