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Intolerant Democracies Gregory H Wayne State University Law Faculty Research Publications Law School 1-1-1995 Intolerant Democracies Gregory H. Fox New York University, [email protected] Georg Nolte Max Planck Institute for Comparative Public Law and International Law Recommended Citation Gregory Fox & Georg Nolte, Intolerant Democracies, 36 Harv. Int'l. L. J. 1 (1995). Available at: https://digitalcommons.wayne.edu/lawfrp/210 This Article is brought to you for free and open access by the Law School at DigitalCommons@WayneState. It has been accepted for inclusion in Law Faculty Research Publications by an authorized administrator of DigitalCommons@WayneState. VOLUME 36, NUMBER 1, WnNTER 1995 Intolerant Democracies Gregory H. Fox* Georg Nolte** If there be any among us who wish to dissolve this union, or to change its republican form, let them stand undisturbed, as monu- ments of the safety with which error of opinion may be tolerated where reason is left free to combat it. Thomas Jefferson1 This will always remain one of the best jokes of democracy, that it gave its deadly enemies the means by which it was destroyed. 2 Joseph Goebbels ABSTRACT International law is increasingly concerned with national transitions to democratic government. The holding of free and fair elections alone, however, provides no guarantee that a democratic system will become firmly established and capable of resisting challenges by anti-demo- cratic actors. The question thus arises of how intolerant a democracy may become toward such actors in order to preserve itself without relinquishing the claim of being democratic. This problem has arisen on a number of occasions, perhaps the most dramatically upon the cancellation of the second round of the Algerian elections in early 1992. This Article explores the legal issues raised by the presence of anti-democratic actors in an otherwise generally .'free and fair" electoral process. The Article first examines two models of democratic govern- ment-the procedural and the substantive-which take opposite per- * Adjunct Professor of Law, New York University School of Law. ** Dr. iur., Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany. We would like to thank Thomas Franck, Jochen Abr. Frowein, Larry Garber, Marthias Herde- gen, Steven Ratner, David Richards, Anne-Marie Slaughter, Helmut Steinberger, Paul Szasz, and Rudiger Wolfrum for their invaluable comments on earlier drafts of this Article. 1. Thomas Jefferson, First Draft of the Inaugural Address (Mar. 4, 1801), in 8 THE WRITINGS OF THOmAS JEFFERSON 1, 3 (Paul Leicester Ford ed., 1897). 2. "Das wird immer einer der besten Witze der Demokratie bleiben, dass sie ihren Todfeinden die Mittel selber stellte, dutch die sie vernichret wurde," quoted in NATIONALsOzIALIsTISCHE DIKTATUR 16 (Karl Dietrich Bracher et al. eds., 1983). HarvardInternational Law Journal / Vol. 36 spectives on the permissibility of excluding anti-democratic actors. Using these models as organizing themes, it then examines the practice of a number of democratic states and the jurisprudence of international human rights regimes. The Article concludes that both national and international practice favor a substantive model of democracy, which holds that the long-term survival of democratic institutions outweighs short-term deprivation of political rights to anti-democratic actors. Having reached this general conclusion, the Article goes on to examine the standards required under international human rights law for the exclusion of such actors and the type of conduct that might justify a ban. Finally, the Article asks whether states that have obligations under human rights treaties to guarantee democratic government are now legally required to exclude anti-democratic actors if the integrity of their democratic institutions is at stake. The Article concludes that such a requirement does exist, though its concrete meaning will differ greatly from state to state. I. INTRODUCTION How to define "democracy" has remained one of the fundamental questions of political theory, engaging statesmen and philosophers in debate since ancient times. The issue has only recently been addressed in a serious way by international lawyers. Scholars such as Thomas Franck now claim that a distinct right to participate in government-a "democratic entitlement"-is emerging as an internationally protected human right.3 The task that Franck and others have set for themselves is nothing less than to define democracy in a global context, as their works seek to identify an international consensus on a set of core "democratic" principles. That international law should have any role in prescribing the makeup of domestic political institutions is remarkable in itself.4 How- 3. Thomas M. Franck, The Emerging Right to Democratic Governance, 86 A. J. INT'L L. 46 (1992). See also JAMES CRAWFORD, DEMOCRACY IN INTERNATIONAL LAW INAUGURAL LECTURE', WHEWELL PROFESSOR OF INTERNATIONAL LAW (1994); Jochen Abr. Frowein, Demokratie tnd Vdlkerrecht in Europa, V6LKERRECHT ZWISCHEN NORMATIVEMi ANSPRUCH UND POLITISCHER RFALiTX. FESTSCHRiFT FOR KARL ZEMANEK 365-75 (1994); David Padilla & Elizabeth Houp- pert, InternationalElection Observing: Enhancing the Principleof Free andFair Elections, 7 EIORY INT'L L. REV. 73 (1993); Gregory H. Fox, The Right to PoliticalParticipation in International Law, 17 YALE J. INT'L L. 539 (1992); Babacar Ndiaye, InternationalCo-operation to Promote Demcracy and Human Rights: Principles and Programmes, 49 Ray. INT'L COmm'N JURISTS 23 (1992); Jon M. Ebersole, The United Nations' Response to Requests for Assistance in ElectoralAMatters, 33 VA. J. INT'L L. 91 (1992); David Stoelting, The Challenge of UN-Monitored Elections in Indepcndent Nations, 28 STAN. J. INT'L L. 371 (1992); National Sovereignty Revisite. Perspectives on the Emerging Norm of Democracy in InternationalLaw, 86 PROC. ANNUAL MTG. A. SOC. INT'L L. 249 (1992); Milida N. Hodgson, Note, When to Accept, When to Abstain: A Frameworkfor U.N. Election Monitoring, 25 N.Y.U. J. INT'L L & PoL. 137 (1992). 4. As recently as 1987, the Restatement of Foreign Relations declared that "[i]nternational law 1995 / Intolerant Democracies ever, global and regional human rights instruments have spoken di- rectly to this question for some time. Article 25 of the International Covenant on Civil and Political Rights (Political Covenant), the gen- eral human rights treaty to which the largest number of states cur- rently subscribes, provides that "every citizen shall have the right and the opportunity .. without unreasonable restrictions ... to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors." 5 In delineating proper electoral procedures, article 25 sets out a legal threshold of governmen- tal legitimacy. As stated by one of the article's drafters, "no government ' 6 is valid unless it reposes on the will of the majority. For many years, article 25 and similar provisions of other human rights treaties lay dormant as a consequence of Cold War tensions. Their impact was marginalized by superpower support for so-called "peoples' democracies" on the one hand and anti-communist dictator- ships of the right on the other. Yet the transition to western forms of democracy in virtually all the former socialist countries, as well as in many developing countries, now makes it possible for the international community to address the perennial question of what makes a state "democratic." That this is a legitimate question for international law is borne out by the practice of states and international institutions in recent years. does not generally address domestic constitutional issues, such as how a national government is formed." RESTATEMENT (THIRD) Op FOREIGN RELATIONS LAW OF THE UNITED STATES § 203, cmt. e (1987). 5. International Covenant on Civil and Political Rights, openedfor signature Dec. 19, 1966, art. 25, S. ExEc. Doc. E, 95th Cong., 2d Sess. 23 (1978); 999 U.N.T.S. 171, 179 [hereinafter Political Covenant]. For a detailed discussion of Article 25, see Fox, supra note 3, at 553-60. As of July 30, 1993, there were 122 states parties to the Political Covenant. Report of the Human Rights Committee, U.N. GAOR, 48th Sess., pt. 1, Supp. No. 40, at 7, U.N. Doc. A/48/40 (1993). Article 25 was modeled after the virtually identical article 21 of the Universal Declaration of Human Rights, G.A. Res. 217A (IMI)(1948) [hereinafter Universal Declaration]. Other human rights instruments guaranteeing a right to political participation include the First Protocol to the European Convention on Human Rights and Fundamental Freedoms, opened for signatureMar. 20, 1953, art. 3, 213 U.N.T.S. 262, Europ. T.S. No. 9 (entered into force May 18, 1954) [Hereinafter European Convention]; American Convention on Human Rights, opened for signature Nov. 22, 1969, art. 23, O.A.S.T.S. No. 36, 9 I.L.M. 673 (1970) (entered into force July 18, 1978), [hereinafter American Convention]; the African [Banjul] Charter on Human and Peoples' Rights, adoptedJune 27, 1981, arc. 13, O.A.U. Doc. CAB/LEG/67/3 Rev. 5, 21 IL.M. 58 (1982) (entered into force Oct. 21, 1986); the Document of the Copenhagen Meeting of the Council on Security and Cooperation in Europe (CSCE) ( 5.1-5A, 7.1-7.9); the International Convention on the Elimination of all Forms of Racial Discrimination, adopted Dec. 21, 1965, art. 5(c), 660 U.N.T.S. 195, 5 I.L.M. 352 (entered into force Jan. 4, 1969)
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