Volume 42 | Number 1 Fall 2006
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II. Sovereignty, Self-Determination of Peoples, and Democracy
The evolution of international law that has taken place in the last decades has led not only to the restriction of the scope of State sovereignty, but also to the conditioning of its constitutive elements, particularly its legitimacy. While it may be argued that, until the second half of the twentieth century, the legitimacy of sovereignty was ipso facto inherent in the reality of an effective power over a territory and a community of people, in more recent times this situation has slightly changed due to the development of a movement, still in fieri at present, pursuing the idea that to be legitimate, sovereignty must be representative of the people living in the territory upon which it extends its scope.
Under traditional international law, the forms of sovereignty and its ways of management were part of the domestic jurisdiction of States. As a consequence, the idea of sovereignty that developed in the early modern times,20 as well as its practical applications (including dictatorial governments), were in no way inconsistent with international law, for the simple reason that it was not a matter that international law could interfere with. This notwithstanding, since the eighteenth century, the philosophy of sovereignty was progressively modified, with the rising of popular movements aimed at freeing peoples from the domination of despotic governments. For example, article 3 of the Declaration of the Rights of Men and of the Citizen, approved by the National Assembly of France on August 26, 1789, solemnly declared that “[l]e principe de toute souveraineté réside essentiellement dans la Nation. Nul corps, nul individu ne peut exercer d’autorité qui n’en émane expressément.”21 Also more solemnly, the U.S. Declaration of Independence of July 4, 1776 had previously considered the principle of democracy as originating from the “Laws of Nature” and by God Himself.22
Legally speaking, for nearly two centuries, the relevance of these proclamations remained limited in scope to the States concerned, although they operated as sparks for the rising of revolutionary movements pursuing the idea of democracy in different countries. Starting in the 1950s, the practice of the United Nations led to the evolution of the principle of self-determination of peoples, already proclaimed by article 1 paragraph 2 and article 55 of the U.N. Charter, towards a principle of customary international law granting the right of independence to any people subjected to foreign colonial domination. Such a principle, at least in its external sense, exhausts its relevance to the situations of forcibly imposed foreign occupation, without supporting the secessionist aspirations of minorities or ethnically-distinct groups or meaning that any government of the world must be the expression of the majority of its population. Thus, at present, it may not yet be maintained that a principle of general international law establishing that any sovereign power must be founded on democracy actually exists, since a number of non-democratic governments still exist in the world and are tolerated by the international community. This notwithstanding, it may not be sustained that international law is totally unconcerned with this matter. Leaving aside the recent proclamations aimed at justifying the violation of the sovereignty of others by using armed force with the need of “exporting democracy,” the element of democracy is now part of the dialogue among States (not only within the framework of developed countries) to a progressively growing extent, so as to raise some doubts of the international legality of certain particularly oppressive forms of government. At the declarative level, the principle of democracy was, for example, proclaimed in 1990 by the final document of the Copenhagen Meeting of the Conference on the Human Dimension of the Conference on Security and Co-operation in Europe (CSCE) (representing thirty-four countries, including the USSR, plus the Holy See), which recognized, among other things, that
pluralistic democracy and the rule of law are essential for ensuring respect for all human rights and fundamental freedoms, the development of human contacts and the resolution of other issues of a related humanitarian character [and welcomed] the commitment expressed by all participating States to the ideals of democracy and political pluralism as well as their common determination to build democratic societies based on free elections and the rule of law.23
More recently, with the Warsaw Declaration of June 27, 2000, the “Community of Democracies,” representing 106 States from all the different geographic, political, and cultural areas of the world, agreed to respect and uphold some core democratic principles and practices, including the rule that “[t]he will of the people shall be the basis of the authority of government, as expressed by exercise of the right and civic duties of citizens to choose their representatives through regular, free and fair elections with universal and equal suffrage . . . .”24
The fact that the principle of democracy is pursued not solely by Western countries is also demonstrated by other relevant international instruments, although not binding per se, adopted at the regional level. For example, the Charter of the Organization of American States (OAS) identifies the aim of “promot[ing] and consolidat[ing] representative democracy” as one of the “essential purposes” of the Organization.25 Also at the OAS level, the Inter-American Democratic Charter solemnly states that “[t]he peoples of the Americas have a right to democracy and their governments have an obligation to promote and defend it.”26
Similarly, the 2004 Dar-Es-Salaam Declaration on Peace, Security, Democracy and Development in the Great Lakes Region, adopted under the auspices of the United Nations and the African Union, emphasizes the “need to respect democracy and good governance”27 and to develop “a regional and inclusive vision for the promotion of sustainable peace, security, democracy and development.”28
At the EU level, virtually all agreements concluded by the European Community (EC) with developing countries are characterized by non-reciprocal trade preferences. These preferences are granted with the aim of promoting the social and economic development of the developing countries, and contain a “clause of democracy” conditioning the implementation of the agreements by the EC on the respect for the principle of democracy by the developing State.
Furthermore, for the purpose of the present analysis it is of paramount importance that the right “to take part in the government of [one’s own] country, directly or through freely chosen representatives” is included among fundamental human rights by nearly all pertinent international instruments.29 Such a right, as pointed out by the Universal Declaration of Human Rights, becomes effective when
[t]he will of the people [is] the basis of the authority of government; this will [is to] be expressed in periodic and genuine elections which [must] be by universal and equal suffrage and [must] be held by secret vote or by equivalent free voting procedures.30
In the light of the preceding observations, it appears that the question of whether a government is democratic or dictatorial is no longer a matter laying “essentially within the domestic jurisdiction of any state,”31 and that, a fortiori, although an international rule proclaiming the obligation for governments to be founded on the free choice of their citizens does not yet exist ex se, the absolute denial of any kind of democratic participation of the citizens in the life of the country is no longer being tolerated by the international community. It is not just a problem of democracy in a strict sense, but it is a matter that also invades the realm of fundamental rights. The 2005 elections in Iraq, with the Iraqi people risking their lives under the bullets of the rebels just for the opportunity to exercise their right to vote,32 demonstrated how the right to participate in the choice of their own government is perceived as fundamental by all the peoples of the world.