DEMOCRATIC GOVERNANCE AND INTERNATIONAL LAW Prior to the end of the Cold War, the word “democracy” was rarely used by international lawyers. Few international organizations sup- ported democratic governance, and the criteria for recognition of governments took little account of whether regimes enjoyed a popular mandate. But the events of – profoundly shook old assumptions. Democratic Governance and International Law attempts to assess international law’s new-found interest in fostering transitions to democracy. Is an entitlement to democratic government now emerging in international law? If so, what are its normative founda- tions? How have global and regional organizations encouraged transitions to democracy, and are their efforts consistent with their constitutional frameworks? How should international law react to elections in which profoundly anti-democratic parties win the vote? In this collection, leading legal scholars grapple with these and other questions to assess the future of international law on this most domestic of questions. Gregory H. Fox is Assistant Professor of Law at Chapman University School of Law. Brad R. Roth is Assistant Professor of Legal Studies and Political Science and Adjunct Professor of Law at Wayne State University. DEMOCRATIC GOVERNANCE AND INTERNATIONAL LAW GREGORY H. FOX AND BRAD R. ROTH The Pitt Building, Trumpington Street, Cambridge, United Kingdom The Edinburgh Building, Cambridge , UK www.cup.cam.ac.uk West th Street, New York, –, USA www.cup.org Stamford Road, Oakleigh, Melbourne , Australia Ruiz de Alarcón , Madrid, Spain © Cambridge University Press This book is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published Typeface Monotype Baskerville /. pt. System QuarkXPress™ [] A catalogue record for this book is available from the British Library Library of Congress Cataloguing in Publication data Democratic governance and international law / edited by Gregory H. Fox & Brad R. Roth p. cm. hardback – paperback . International law – Political aspects. Democracy. .Fox, Gregory H., – . Roth, Brad R. –dc - hardback paperback Transferred to digital printing 2004 Contents List of contributors page viii List of acknowledgments xii Introduction: the spread of liberal democracy and its implications for international law Gregory H. Fox & Brad R. Roth Legitimacy and the democratic entitlement Thomas M. Franck The right to political participation in international law Gregory H. Fox Democracy and the body of international law James Crawford - Democratic legitimacy and the recognition of States and governments Sean D. Murphy Constitutionalism and democratic government in the inter-American system Stephen J. Schnably Government networks: the heart of the liberal democratic order Anne-Marie Slaughter v vi Contents Sovereignty and human rights in contemporary international law W. Michael Reisman “You, the People”: pro-democratic intervention in international law Michael Byers & Simon Chesterman Pro-democratic intervention by invitation David Wippman The illegality of “pro-democratic” invasion pacts Brad R. Roth International law and the “liberal peace” John M. Owen, Intolerant democracies Gregory H. Fox & Georg Nolte Whose intolerance, which democracy? Martti Koskenniemi Democratic intolerance: observations on Fox and Nolte Brad R. Roth A defense of the “intolerant democracies” thesis Gregory H. Fox & Georg Nolte Democracy and accountability: the criss-crossing paths of two emerging norms Steven R. Ratner Evaluating democratic progress Brad R. Roth What kind of democracy does the “democratic entitlement” entail? Jan Knippers Black Contents vii International law, democracy, and the end of history Susan Marks Index Contributors is a professor in the Graduate School of International Policy Studies at the Monterey Institute of Inter- national Studies in California and a senior associate member of St. Anthony’s College, Oxford. Previously, she served as research pro- fessor of public administration at the University of New Mexico and as senior research scientist and chair of the Latin American research team in the Foreign Affairs Studies Division of American University. She has authored or edited and co-authored nine books, most recently, Latin America, Its Problems and Its Promise (rd rev. edn, ), Development in Theory and Practice: Paradigms and Paradoxes (nd rev. edn, ), and Recycled Rhetoric and Disposable People: The Globalization of Insecurity (). is Associate Professor of Law at Duke University. From – he was a Fellow of Jesus College, Oxford. He is the author of Custom, Power and the Power of Rules () and the editor of The Role of Law in International Politics (). is a doctoral candidate at Magdalen College, Oxford. His thesis, on humanitarian intervention, is being supervised by Professor Ian Brownlie. He has recently published articles on war crimes, theories of human rights, and euthanasia. is Whewell Professor of International Law in the University of Cambridge and the Director of the Lauterpacht Research Centre for International Law. He is a member of the International Law Commission and its Special Rapporteur on State Responsibility. His inaugural lecture at Cambridge was on the subject of “Democracy in International Law” (). . is an Assistant Professor of Law at Chapman University Law School. He has been a Senior Fellow at the Orville H. viii Contributors ix Schell, Jr. Center for International Human Rights at Yale Law School and an Adjunct Professor of Law at New York University Law School. His publications include “Strengthening the State,” Indiana Journal of Global Legal Studies, and “Self-Determination in the Post-Cold War Era: A New Internal Focus?” Michigan Journal of International Law. is the Murray and Ida Becker Professor of Law at New York University Law School and Director of its Center for International Studies. Professor Franck is the author of Fairness in International Law and Institutions (, ). He is President of the American Society of International Law (–) and has litigated before the International Court of Justice. is a Professor of International Law, University of Helsinki and Director, The Erik Castrén Institute of International Law and Human Rights. Former Counsellor (legal adviser) Ministry for Foreign Affairs of Finland. He is the author of From Apology to Utopia: The Structure of International Legal Argument (). He is currently working on a book of essays on international legal history. is a University Lecturer in the Faculty of Law,University of Cambridge, and a Fellow of Emmanuel College. She teaches, and writes on, international law and human rights law. In recent publica- tions, as well as in a forthcoming book, she addresses the interrelation of democracy and international law. . is an Associate Professor of Law at George Washington University in Washington, D.C. He served from to in the U.S. Department of State Office of the Legal Adviser and from to as Legal Counselor at the U.S. Embassy in The Hague. He is the author of Humanitarian Intervention: The United Nations in an Evolving World Order (), which was awarded the Certificate of Merit by the American Society of International Law. is Professor of International Law at the University of Goettingen. From to he was a Fellow at the Max Planck Institute for Comparative Public Law and International Law. During this time he taught at the universities of Leipzig (–), New York (), Saarbruecken (–) and Regensburg (). He is the author of Eingreifen auf Einladung (Intervention upon Invitation) (Springer ) as well as a number of articles on international law, comparative constitutional law, and comparative administrative law. x Contributors . , is Assistant Professor of Government and Foreign Affairs at the University of Virginia. He has held post-doctoral fellow- ships at Harvard and Stanford. He is the author of Liberal Peace, Liberal War, American Politics and International Security (), and of “The Canon and the Cannon,” International Security ,no. (Winter /). . is Professor of Law at the University of Texas School of Law. He was recently a member of the UN Secretary- General’s Group of Experts charged with making recommendations regarding accountability of the Khmer Rouge for their atrocities in the s, and was also a Fulbright Senior Scholar in the Organization for Security and Cooperation in Europe Regional Research Program. He is the author (with Jason Abrams) of Accountability for Human Rights Atrocities in International Law Beyond the Nuremberg Legacy (), which was awarded the Certificate of Merit by the American Society of International Law, and the author of The New UN Peacekeeping: Building Peace in Lands of Conflict After the Cold War (), as well as numerous articles. is McDougal Professor of Law at Yale, the co- Editor in-Chief of the American Journal of International Law, Counselor of the American Society of International Law, a member of the Advisory Committee on International Law of the Department of State and the Vice-Chairman of Policy Sciences, Inc. He has served as the President of the Inter-American Commission on Human Rights and has advised governments on international law matters. . is Assistant Professor of Legal Studies and Political Science at Wayne State University in Detroit.