Non-binding Instruments as a Source of the Right to Democracy Democracy

The process of softening of international law, that is an increasing resort to non-treaty instruments in the regulation of international relations, signifies constitutionalisation of international law for:

Non-binding commitments may be entered into precisely to reflect the will of the international community to resolve a pressing global problem over the objections of the one or few states causing the problem, while avoiding the doctrinal barrier of their lack of consent to be bound by the norm.³¹⁶

The term ‘soft law’ is generally used to designate international instruments that are purposely excluded from the definition of treaty and aim to promulgate principles and rules of universal application without an intention to enter into binding commitments.³¹⁷ It is commonplace to define these instruments in negative terms, as lacking one or several characteristics normally ascribed to international law, such as, e.g., justiciability, precise normative content, enforceability and formal legal status.³¹⁸ Their relevance to international law is often underscored, inter alia, by their close resemblance to law, the extent to which they shape legal discourse, the extent of consensus around them, their impact on the behaviour of international actors and outcomes in international society.³¹⁹ Yet, the most coherent approach to soft law from the standpoint of the doctrine of sources is to conceive of it in terms of the degree of hardening of a norm into a rule of international law. Notably, not every normative

315 Jean d’Aspremont, Formalism and the Sources of International Law: A Theories of the Ascertainment of Legal Rules (OUP 2011) 120-29.

316 Dinah Shelton, ‘International Law and “Relative Normativity”’ in Malcolm D Evans (ed), International Law (OUP 2010) 144.

317 Alan Boyle and Chrisitne Chinkin, The Making of International Law (OUP 2007) 212;

Anthony Aust, Modern Treaty Law and Practice (3rd edn, CUP 2013) 49-50.

318 Jaye Ellis, ‘Shades of Grey: Soft Law and the Validity of Public International Law’ (2012) 25 LJIL 313, 315-18.

319 ibid 318-19.

commitment or statement can qualify as soft law but only such which ‘acquires a degree of traction [acceptance by states]’ and is ‘in the process of incubation’

which makes it a viable candidate for crystallising into hard law, though it may ultimately fail to become a binding rule of international law.³²⁰ Thus, the category of soft law can be understood as the one referring to ‘rules […] that are in the process of becoming, though may not ultimately become, binding rules of international law in the form of any of the established sources of international law — customary law, general principles of law, or as a binding interpretation of a rule of a treaty law’.³²¹ Because constitutionalisation of international law is driven by international consensus over a set of principles crucial for the existence and proper functioning of the international community, softening of international law, whereby global values find their most frequent and elaborate endorsement in non-binding instruments, is manifestation of global constitutionalisation.

Importantly, the ever-frequent invocation of non-binding instruments does not obliterate the positivist premises of the international legal doctrine, such as foreseeability and validity, since it is fair to say that the VCLT does not deny the status of law to them. As Hillenberg observed, the Vienna Convention applies to ‘international agreements concluded between States and governed by international law’.³²² To automatically exclude soft law instruments form the definition is too simplistic an approach as the drafting history of the Convention reveals that the qualification ‘governed by international law’

pertains to the distinction between agreements under international law and those under domestic law, not between treaties proper and soft law.³²³ Moreover, since state will is so commonly viewed as the lynchpin of international law, there is no reason to deny states the possibility to subscribe to international commitments in a less formal manner.³²⁴ Strikingly, the case law of the ICJ³²⁵ illustrates that while such soft law instruments as recommendations of international organisations are not binding as a matter of definition, they are nonetheless not without legal effect. Apart from being considered as evidence of existing law, or formative of state practice or opinio juris, or as aiders in the interpretation of treaty law, they increasingly assume

320 Thomas Gammeltoft-Hansen, Stephanie Lagoutte and John Cerone, ‘Introduction: Tracing the Roles of Soft Law in Human Rights’ in Thomas Gammeltoft-Hansen, Stephanie Lagoutte and John Cerone (eds), Tracing the Roles of Soft Law in Human Rights (OUP 2016) 5.

321 John Cerone, ‘A Taxonomy of Soft Law: Stipulating a Definition’ in Thomas Gammeltoft-Hansen, Stephanie Lagoutte and John Cerone (eds), Tracing the Roles of Soft Law in Human Rights (OUP 2016) 18.

322 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 33 (VCLT) art 2(1)(a).

323 Hartmut Hillgenberg, ‘A Fresh Look at Soft Law’ (1999) 10 EJIL 499, 503.

324 ibid 506.

325 See eg Nuclear Tests Case (Australia & New Zealand v France) (Merits) [1974] ICJ Rep 457, para 46; Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14, 186.

a more autonomous role in the ascertainment of legal rules. On this reading, they certainly constitute a part of international law.³²⁶

From the vantage point of global constitutionalism, more frequent invocation of soft-law instruments allows to fill gaps in international law and thereby aids in constructing international law as a unified normative system where global values, as commonly found in the text of non-binding commitments, act as a sort of glue holding autonomous legal regimes together.

This effectively means that not only is softening of international law a reaction to, and a bulwark against, fragmentation within and of international law but also an engine of unity between legal systems and regimes. Moreover, the specificities of international human rights law, such as, for example, the historical lack of enforcement mechanisms in the human rights field, facilitate a more privileged position of soft law in resolving interpretative indeterminacies. In this context, soft law instruments assume norm-filling (e.g., commentaries of the human rights bodies interpreting treaty provisions) and norm-creating functions (non-binding norms harden into a binding law when they reflect state consensus on certain issues).³²⁷ As regards the right to democracy, non-binding instruments provide for the most sophisticated account of democracy as a human right and a global value. Apart from international non-treaty agreements such as UNGA resolutions, resolutions of the Human Rights Council and its predecessor, the Commission on Human Rights, as well as general comments of the Human Rights Committee, discussed in the context of modern custom,³²⁸ there is a plethora of regional soft law documents endorsing democracy.

In Europe, the OSCE, previously the Conference on Security and Cooperation in Europe (CSCE), undertook a missionary role in the promotion of the democratic entitlement. Due to space limitations, the focus is placed on three principal documents employing human rights language in their references to democracy. The first document adopted by the CSCE, ‘Charter of Paris for a New Europe’ of 1990, committed member states ‘to build, consolidate and strengthen democracy as the only system of government of our nations’.³²⁹ It further articulated that ‘[d]emocratic government is based on the will of the people, expressed regularly through free and fair elections’.³³⁰ The Charter also included essential elements of democratic entitlement, such as the respect for

326 Alain Pellet, ‘Article 38’ in Andreas Zimmermann, Christian Tomuschat and Karin Oellers-Frahm (eds), The Statute of the International Court of Justice: A Commentary (OUP 2006) 714;

Jean d’Aspremont, Formalism and the Sources of International Law: A Theories of the Ascertainment of Legal Rules (OUP 2011) 149.

327 See Thomas Gammeltoft-Hansen, Stephanie Lagoutte and John Cerone, ‘Introduction:

Tracing the Roles of Soft Law in Human Rights’ in Thomas Gammeltoft-Hansen, Stephanie Lagoutte and John Cerone (eds), Tracing the Roles of Soft Law in Human Rights (OUP 2016) 6-7.

328 See section 4.2.2.

329 OSCE, The Charter of Paris for a New Europe (21 November 1990) 3

<https://www.oscepa.org/documents/all-documents/documents-1/historical-documents-1/673-1990-charter-of-paris-for-a-new-europe/file> accessed 30 August 2016.

330 ibid.

human rights and the rule of law, representativeness, legal pluralism, accountability to the electorate and impartial system of justice.³³¹ Needless to say, according to conventional view, the role of this instrument is minor, if not wholly futile, in serving as a norm of conduct for states in their relations with one another. And yet, given its deliberately norm creating language³³² enshrining values common to all European states, it is a perfect tool to interpret existing obligations of the Council of Europe and its member states.

The second document with even more detailed democratic provisions is the 1990 ‘Copenhagen Document’. It states that:

[P]luralistic 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.

They therefore welcome 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.³³³

It also affirmed such inherent elements of the right to democracy as the rule of law, free and fair elections, representative character of governmental structures and political pluralism.³³⁴

Last but not least, the 1991 ‘Moscow Document’ urges the revision of the traditional concept of sovereignty: ‘[T]he commitment undertaken in the field of the human dimension of the CSCE are matters of direct and legitimate concern to all participating States and do not belong exclusively to the internal affairs of the State concerned’.³³⁵ The document also condemns an unconstitutional overthrow of a legitimately elected government and speaks for the inadequacy of the effective control test as a condition for international recognition.³³⁶

In African region, apart from important treaty standards touching upon the issues of democracy, such as the Constitutive Act of the African Union (AUCA), the African Charter on Human and Peoples’ Rights and the African Charter on Democracy, Elections and Governance, there is a dense variety of soft instruments containing more elaborate terms with respect to state obligations to install and maintain a democratic form of government.³³⁷ One of

331 ibid.

332 Thomas Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86 AJIL 46, 67.

333 OSCE, Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE (29 June 1990) preamble <http://www.osce.org/odihr/elections/14304> accessed 29 August 2016.

334 ibid paras 3, 5.

335 OSCE, Document of the Moscow Meeting of the Conference on the Human Dimension of the CSCE (4 October 1991) preamble <http://www.osce.org/odihr/elections/14310> accessed 31 August 2016.

336 ibid para 17.

337 See eg Organisation of African Unity, Declaration on the Political and Socio-Economic Situation in Africa and the Fundamental Changes Taking Place in the World (OAU Addis Ababa 1990) AHG/Decl.1 (XXVI); The African Commission on Human and Peoples’ Rights,

the most eminent examples is the 2000 ‘Declaration on the Framework for an OAU Response to Unconstitutional Changes of Government’.³³⁸ Drawing on articles 4 and 30 AUCA providing for the condemnation of the unconstitutional changes of government and suspension of state’s membership rights whose government came to power through unconstitutional means respectively, the Declaration envisages in more elaborate terms the operation of this sanction mechanism.³³⁹ Similar mechanisms of response to coups d’état have been established by other regional organisations in Africa. These include the 1991 Declaration of the ECOWAS, the essence of which was eventually incorporated into the 1993 Treaty of ECOWAS;³⁴⁰ the 2001 Protocol on Democracy and Good Governance expressly recognising the obligation to hold free, fair and transparent elections;³⁴¹ and the SADC Principles and Guidelines Governing Democratic Elections.³⁴²

Turning finally to Americas, the Inter-American Democratic Charter in its remarkable article 1 provides for a right of the peoples of the Americas to democracy and obliges their governments to promote and defend it.³⁴³ Similarly to its regional counterparts, the Charter recognises democracy as

‘essential for the social, political and economic development’, whose constitutive elements include, among others:

[R]espect for human rights and fundamental freedoms, access to and exercise of power in accordance with the rule of law, the holding of periodic, free, and fair elections based on secret balloting and universal suffrage as an expression of the sovereignty of the people, the pluralistic system of political parties and organizations, and the separation of powers and independence of the branches of government.³⁴⁴

Prior to this, the OAS took three steps to promote and consolidate democracy in American continent: the 1991 Santiago Commitment, the 1991 Resolution

‘Resolution on the Military’ (25 October—3 November 1994) Res.10(XVI)94; Organisation of African Unity, Solemn Declaration on the Conference on Security, Stability, Development and Cooperation in Africa (CSSDCA) (OAU Lome 2000) AHG/Decl.4 (XXXVI) etc. For a more detailed overview of the soft instruments adopted within the framework of the OAU/AU aimed to promote democracy and condemn military putsches, see Djacoba Liva Tehindrazanarivelo,

‘Les sanctions de l’Union africaine contre les coups d’État et autre changements anticonstitutionnels de gouvernement: potentialités et mesures de renforcement’ (2004) 12 Afr YBIL 255.

338 Organisation of African Unity (OAU Lome 2000) Doc AHG/Decl.5 (XXXVI).

339 For a more detailed analysis, see section 5.4.

340 Economic Community of West African States (ECOWAS) Revised Treaty (24 July 1993) 35 ILM 660.

341 ECOWAS, ‘Protocol on Democracy and Good Governance’ (22 December 2001) Doc A/SPI/12/01.

342 Southern African Development Community (Electoral Advisory Council) ‘SADC Principles and Guidelines Governing Democratic Elections’ (Mauritius, August 2004)

<http://www2.ohchr.org/english/law/compilation_democracy/sadcprinc.htm> accessed 28 June 2015.

343 OAS, Inter-American Democratic Charter, OEA/Ser.G/CP-1 (11 September 2001) art 1.

344 ibid art 3.

1080 and the 1992 Protocol of Washington, commonly referred to as ‘Santiago Commitment’ or ‘Santiago Doctrine’.³⁴⁵ Whilst the essential part of the Santiago Doctrine is non-binding in principle, it has been repeatedly invoked in response to democratic threats in the American hemisphere.³⁴⁶

Before moving to criticisms voiced against the soft law doctrine, it is vital to remind the reader that Asia in view of its cultural, social and economic diversity lacks a coherent human rights framework, whether hard or soft, to draw on when arguing for the existence of the regional norm of democratic governance. In fact, many scholars claim that Asia is the only part of the world that remained to a large degree immune from global democratic developments.³⁴⁷ And yet, there is some rudimentary progress in terms of recognising democracy as the only ‘human-rights-friendly’ form of government. South East Asia and West Asia (or Middle East) are regions where the progress is the most substantial. As to the former, while there is no regional legally binding human rights convention codifying the right to democratic governance, apart from brief reference to democracy as one of the purposes of the Association of Southeast Asian Nations (ASEAN) in the 2007 ASEAN Charter,³⁴⁸ one can nonetheless observe a sea change in the political climate of the region marked by a rising interest in human rights, including the right to democracy, discernible in the recent ASEAN Human Rights Declaration.³⁴⁹ Its article 25 (the right to participate in the government of one’s country and the right to free and fair elections) basically reaffirms the provisions of article 21 UDHR and article 25 ICCPR. Another important document is the SAARC Charter of Democracy of 2011.³⁵⁰ The Charter sets a clear commitment to strengthening democratic institutions and reinforcement of democratic practices, including through the effective maintenance of checks and balances among the branches of government, guaranteeing the independence of the judiciary and respect for the rule of law and the unequivocal renouncement of any unconstitutional change of an elected government. Although the document is technically biding, its provisions are formulated in generic language, which hinders the derivation of concrete obligations therefrom.

In the Arab World, the revised Arab Charter on Human Rights, adopted in 2004 under the auspices of the League of Arab States, entered into force in

345 Stephen F Schably, ‘Constitutionalism and Democratic Government in the Inter-American System’ in Gregory H Fox and Brad R Roth (eds), Democratic Governance and International Law (CUP 2000) 162-64.

346 See section 5.3.

347 See eg Larry Diamond, ‘Why Are There No Arab Democracies?’ (2010) 21 Journal of Democracy 93; Tarek Masoud, ‘Has the Door Closed on Arab Democracy?’ (2015) 26 Journal of Democracy 74.

348 Charter of the Association of Southeast Asian Nations (adopted 20 November 2007, entered into force 15 December 2008) 2624 UNTS 223 (ASEAN Charter) art 1(7).

349 AICHR, ASEAN Human Rights Declaration (18 November 2012)

<http://www.asean.org/news/asean-statement-communiques/item/asean-human-rights-declaration> accessed 28 June 2015.

350 SAARC, SAARC Charter of Democracy (February 2011) <http://www.saarc-sec.org/SAARC-Charter/5/> accessed 22 September 2017.

2008.³⁵¹ Albeit couched in treaty language, it is essentially soft in terms of its negotium³⁵² given its weak implementation mechanism.³⁵³ Moreover, it does not include democratic provisions akin to other regional human rights treaties, except for vague references to the right to occupy public office in one’s country and the freedoms of thought, conscience, opinion, assembly and association.³⁵⁴ In the same vein, the Cairo Declaration on Human Rights in Islam, adopted under the aegis of the Organisation of Islamic Cooperation (OIC), endorses the right to express one’s opinion freely as well as the right of everyone ‘to participate, directly or indirectly in the administration of his country’s public affairs’ and ‘the right to assume public office’.³⁵⁵ Whether the expression

‘indirectly’ refers to representative democracy is open to debate. However, interpretation of any of the above-mentioned instruments should be done through the prism of the principles of the UDHR and the two twin covenants.

For states that are not parties to the covenants, the UDHR, whose provisions are widely recognised as reflecting customary international law, imposes a direct obligation to ensure that their regional practices are not in contradiction to its provisions. It should also be noted that nearly a third of the Arab countries are members of the African Union, to whom its more elaborate standards on democracy are directly applicable.

Whether softening of international law is a layer of global constitutionalism or something else, criticisms abound. Mainstream scholars contend that legal effects that these instruments produce are not sufficient to transpose them into the realm of law. Unlike legal acts, soft law represents merely legal facts (incapable of generating binding obligations) and irrespective of the will of their authors cannot qualify as law.³⁵⁶ Further, the same strand of scholars argue for a redundancy of non-treaty commitments since when applied to a particular case, they are either employed to bolster the

351 League of Arab States, Arab Charter on Human Rights (adopted 22 May 2004, entered into force 15 March 2008) 12 IHR Rep 883.

352 For a more elaborate discussion on two types of soft law, namely soft instrumentum and soft negotium, see Jean d’Aspremont, ‘Softness in International Law: A Self-Serving Quest for New Legal Materials: A Rejoinder to Tony D’Amato’ (2009) 20 EJIL 911.

353 The Charter merely establishes an Arab Human Rights Committee composed of seven experts entrusted with the task to review state reports. There are no provisions regulating individual and/or state communications. See generally Mervat Rishmawi, ‘The Arab Charter on Human Rights and the League of Arab States: An Update’ (2010) 10 HRL Rev 169; Mervat Rishmawi,

‘The Revised Arab Charter on Human Rights’ in Catarina Krause and Martin Scheinin (eds), International Protection of Human Rights: A Textbook (2nd edn, Åbo Akademi University 2012).

354 League of Arab States, Arab Charter on Human Rights (adopted 22 May 2004, entered into force 15 March 2008) 12 IHR Rep 883, arts 26, 28, 33.

355 Organization of the Islamic Conference, The Cairo Declaration on Human Rights in Islam (5 August 1990) UN Doc A/Conf 157/PC/62/Add.18, arts 22(a), 23(b).

356 Michel Virally, ‘La distinction entre textes internationaux ayant une portée juridique entre leurs acteurs et textes qui en sont dépourvus’ (1983) 60 Annuaire de l’Institut de droit International 166, 246.

application of hard law or are completely disregarded as non-law.³⁵⁷ In this

application of hard law or are completely disregarded as non-law.³⁵⁷ In this