Towards the Limited Substantive Conception

In light of the above said it seems like any attempt to construct a definition of democracy in international law is hampered by an inherent paradox:

democracy reduced to electoral process, however free and fair, does not bring anything new to the table as international and regional human rights instruments already contain a minimum set of civil and political rights and freedoms guaranteeing participation in elections, non-discrimination, free press, free speech etc. Democracy elevated to the rank of social virtue encompassing all achievements of liberalism and constitutionalism from the rule of law to good governance means too much and, thus, barely anything.

Moreover, the liberal aspect of the term ‘liberal democracy’ and its relationship to the democratic aspect is still a matter of debate within international legal circles. Global constitutionalism as a legal approach does not provide for a grandiose solution to this conundrum. However, it entails a certain set of assumptions when it comes to the doctrines of liberalism and constitutionalism which, in turn, shape the definition of democracy.

First, global constitutionalism as a subspecies of new liberalism does not accept just any type of liberalism. For democracy to be meaningful, it is not enough for state to guarantee negative liberty. To ensure genuine empowerment and equality — two core values of democracy — a different

119 Brad R Roth, ‘Evaluating Democratic Progress’ in Gregory H Fox and Brad R Roth (eds), Democratic Governance and International Law (CUP 2000) 497.

120 Richard Burchill, ‘The Promotion and Protection of Democracy by Regional Organizations in Europe: The Case of Austria’ (2001) 7 EPL 79, 82.

strand of rights should be guaranteed in addition to traditional civil and political rights, namely socio-economic rights. It means that real democracies are social-welfare democracies, which apart from securing freedom from arbitrary authority (negative freedom) also ensure proper conditions for exercising negative rights (positive freedom).¹²¹ In fact, the adoption of the ICESCR along with the ICCPR as well as the rapid expansion of the development discourse in international legal debate clearly manifests the triumph of social-welfare liberalism, or ‘“liberal” liberalism’¹²² over classical liberalism, or laissez-faire liberalism, in international law. This implies that democracy stands for normative goals ‘that include social justice, development of individuality, and solving of public problems’.¹²³

Second, constitutionalism from the perspective of the global constitutionalism thesis does not refer merely to having a constitution, but to having a particular kind of constitution, that is legitimate constitution¹²⁴ — a constitution embodying the principles of constitutionalism. On this account, constitutionalism is a political theory that captures more than the existence of, and adherence to, the written text; rather it is an understanding of the law ‘as a bulwark against the arbitrary exercise of power’.¹²⁵ Thus, while traditional theory of constitutionalism is rather descriptive in that it depicts any structure of government as constitutional as long as it originates and maintains its power in accordance with constitution, ‘new constitutionalism’, which underpins the doctrine of global constitutionalism, presupposes the existence of certain procedural and substantive characteristics which are, in turn, ‘an articulation of a “higher law” of the community of nations, reflecting a global communal consensus evidenced in common practice or international agreements’.¹²⁶ Indeed, more and more scholars subscribe to this new value-loaded understanding of constitutionalism. For Cottier, ‘legitimate’ constitution has to

121 See Isaiah Berlin, Four Essays on Liberty (OUP 1969) 122.

122 Michael W Doyle, ‘Kant, Liberal Legacies and Foreign Affairs’ (1983) 12 Phil & Pub Aff 205, 207. For a good summary of the core precepts of new liberalism, see Conrad Waligorski, Liberal Economics and Democracy: Keynes, Galbraith, Thurow, and Reich (UP of Kansas 1997) 11-17 (These are: (1) critique of laissez-faire economics; (2) ‘positive’ conception of freedom; (3) equality; (4) democracy; (5) individualism; (6) power; (7) equilibrium between public and private; (8) positive role of government).

123 Conrad Waligorski, Liberal Economics and Democracy: Keynes, Galbraith, Thurow, and Reich (UP of Kansas 1997) 26.

124 Anne Peters, ‘Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures’ (2006) 19 LJIL 579, 582.

125 Anthony F Lang and Antje Wiener, ‘A Constitutionalising Global Order: An Introduction’

in Anthony F Lang and Antje Wiener (eds), Handbook on Global Constitutionalism (Edward Elgar Publishing 2017) 4.

126 Larry Cata Backer, ‘Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering’ (2009) 16 J Global Legal Stud 85, 89. See also Thomas Cottier and Maya Hertig, ‘The Prospects of 21st Century Constitutionalism’ (2003) 7 Max Planck YB UN L (2003) 261, 278.

But see typologies of constitutions discussed by Grimm who maintains that all modern constitutions are prescriptive unlike pre-modern constitutions (non-legal) that are descriptive.

Dieter Grimm, ‘Types of Constitutions’ in Michel Rosenfeld and Andras Sajo (eds), The Oxford Handbook of Comparative Constitutional Law (OUP 2013) 106.

meet certain prerequisites, such as ‘setting up and limiting the power of the polity, defining the fundamental boundaries between the private and the public, the state and the individual and between the different branches of government’.¹²⁷ Further, d’Aspremont’s emphasis on the legitimacy of exercise in contrast to the legitimacy of origin¹²⁸ reflects, albeit implicitly, a need for a revision of the doctrine of constitutionalism from its classical variant as an irreversible one-time event where the legitimate establishment of constitution is not questioned to a new model subject to continuous evaluation of legitimacy of constitutional process by reference to constitutional values, such as the division of powers, checks and balances, the rule of law and human rights.

That said, ‘liberal’ liberalism and new constitutionalism animate the new definition of democracy. On this view, democracy is a system of government established through the process of periodic, free, fair and genuine elections based on universal suffrage in multiparty setting guaranteeing continuous political participation (by means of vote and other democratic institutions, such as referendums and civil society organisations) on conditions of equality and non-discrimination as well as protection of a certain core of socio-economic rights and operating on the basis of a legitimate constitution founded on the principles of checks and balances, divisions of power and the rule of law.¹²⁹ Thus, rather than being purely confined to the procedural notions of the rights to vote and stand for elections, democracy is ‘a series of rights that are collectively reinforcing’.¹³⁰ On this (substantive) account, democracy is more than a means to reach power. It is an end in itself because it ensures the realisation of the fundamental capabilities of all members of society.¹³¹ Simply put, democracy is a political regime that takes human rights seriously and tackles diversity by means of debate. Accordingly, democracy should be understood as a comprehensive legal model stretching beyond the minimalist aspects and encompassing a series of fundamental rights and freedoms that are reciprocally reinforcing.¹³² Such essential procedural pillars as the right to vote and the right to be elected in free and fair elections can only be fully guaranteed if accompanied by, among others, the right to education, since the voter’s knowledge of the structure of the state and how the political power is administered and distributed enhances his right to vote; the right to access media, providing voters with essential information platform on the basis of

127 Thomas Cottier and Maya Hertig, ‘The Prospects of 21st Century Constitutionalism’ (2003) 7 Max Planck YB UN L (2003) 261, 278.

128 See generally Jean d’Aspremont, ‘Legitimacy of Governments in the Age of Democracy’

(2006) 38 NYUJ Int’l L & Pol 877.

129 Importantly, the capitalist model of economics, assuming opening up of restrictions on trade and the protection of property rights, is another crucial underpinning of liberal democracy.

However, economic and political strands of liberalism are treated separately in this thesis, only the latter being relevant for this research.

130 Gregory H Fox, ‘Democracy, Right to, International Protection’ in Rudiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2013) para 10.

131 See Crawford B Macpherson, The Real World of Democracy (Clarendon Press 1966) 37.

132 Khalifa A Alfadhel, The Right to Democracy in International Law (Routledge 2017) 50.

which they could make their political choices; the right to fair trial and judicial remedy to ensure integrity and impartiality of the election administration and impede the violations of the right to vote and other rights.

Importantly, the UN Commission on Human Rights in its resolution

‘Promotion of the Right to Democracy’ came closest to the delineation of the right to democracy as an embodiment and mutual reinforcement of certain fundamental rights and freedoms, including the rights of opinion, thought, religion and peaceful assembly; the right to information; the rule of law and impartial and independent judiciary; the right to vote and stand for elections;

transparent and accountable government institutions etc.¹³³ Drawing on this resolution, one can distinguish five components of democracy: electoral, liberal-constitutional, participatory, deliberative and egalitarian.¹³⁴ The electoral component of democracy entails the identification of collective will by means of electoral process. The liberal-constitutional component embodies the protection of individual rights against a potential ‘tyranny of majority’ by the constitutional entrenchment and the constitutional protection of the rule of law, checks and balances and judicial independence from the executive. The participatory component envisages active participation of citizens in political decision making by means of vote as well as non-electoral engagement in political processes through civil society organisations and mechanisms of direct democracy. The deliberative component presupposes the overriding importance of dialogue and deliberation in formation of political decisions over subjective appeals to solidarity, national sensibility and resort to coercion.

Lastly, the egalitarian component entails the equal importance of socio-economic rights (with respect to civil and political rights) in attainment of political equality.¹³⁵

This refined substantive definition is not a panacea and does not solve all theoretical and practical problems that animate the concept of democracy.

However, it overcomes certain major criticisms within debates on theories and models of democracy. Thus, the new definition of democracy does not confine democracy to a mere process of electoral competition, neither does it fail to set conceptual limits on the notion of democracy to keep it operational. Unlike the original substantive conception of ‘everything goes’, the limited substantive conception of democracy is not concerned with abstract notions of social justice and human dignity. Rather, it provides for a normative evaluative framework bolstering the capacity of the existing network of human rights to serve their original goals, including liberty, equality and self-empowerment, by means of popular control over collective decision-making as a mutually reinforcing system. Moreover, the extent of protection of human rights and liberties as an evaluative criterion of democratic government is not taken in

133 UNCHR, ‘Promotion of the Right to Democracy’ (27 April 1999) UN Doc E/CN.4/RES/1999/57, para 2.

134 Staffan I Lindberg and others, ‘V-Dem: A New Way to Measure Democracy’ (2014) 25 Journal of Democracy 159, 160-61.

135 ibid.

abstract, meaning that every human right should be perfectly guaranteed for an entity to qualify as democratic. Rather, human rights and freedoms, including socio-economic rights, should be respected at least to the extent they ensure minimum space for genuine and continuous participation, equality (both during and between elections) and diversity. Such an approach solves the problem of both competitive authoritarianism and illiberal constitutionalism as the two concepts by virtue of effectively defeating the de facto impact of citizens’ choices on the political and institutional layout of their governments would not fall under the definition of democracy.

On the other hand, for democracy to maintain its universal appeal, certain local democratic variations should be accepted. However, to ensure that these variations do not serve as a cover for soft forms of authoritarianism, the minimum liberal core of the concept of democracy, namely meaningful participation and effective contestation of the majoritarian politics, is to be preserved to the extent that the five aforementioned elements of democracy are effectively realised. This is based on a suggestion that the liberal aspect of liberal democracy is not to be sacrificed for the sake of the democratic aspect, albeit it may be adjusted to ensure broader participation. In this sense, liberty is a key democratic value, whereas broad political participation is a means to ensure liberty. Whenever the liberty of thought and conscience, autonomy and the right to political opposition are compromised in the name of majoritarian objectives, this is not democracy, however massively supported such objectives might be. Such conceptualisation may seem to be lacking analytical precision and even imperialistic, since the principles animating the above-suggested definition of democracy are liberal principles originating in the seventeenth-century Europe and, thus, anything but universal. However, the particular historical and geographical pedigree of an idea does not per se preclude its universalist claims. To assert otherwise is to endorse the crude relativist view that a state’s political system is a matter of its own business and beyond criticisms. As the world goes increasingly interdependent, state’s internal affairs are a subject of general concern. This requires an adoption of a minimum code of moral and political principles of good governance, which are both universally valid and culturally sensitive. World governments are free to evolve their national politics in line with their cultural particularities but in a way compatible with these regulative principles.¹³⁶ Whilst it goes beyond the scope of this argument to prove the cross-cultural consensus over these principles, it suffices to mention the 1948 Universal Declaration of Human Rights (UDHR) laying down the general principles every government should satisfy. Because the declaration translates these principles into the language of rights and recognises that the will of the people constitutes the basis of the authority of government, it implies liberal democracy. Since the declaration was signed by a large number of governments representing different cultures, geographical areas and political systems, it commands considerable universal

136 See eg Bhikhu Parekh, ‘The Cultural Particularity of Liberal Democracy’ (1992) 40 Pol Stud, issue s1 August 1992, 160, 173.

support. Thus, the principles of liberal democracy, on which the UDHR is founded, are increasingly becoming ‘a common standard of achievement for all peoples and nations’.¹³⁷

Ultimately, the lack of deeper analytical precision of the present conceptualisation stems from the very essence of the liberal rationale, namely defence of values solely essential for maintaining individual liberty, short of imposing an overarching normative world vision. This suggest that governments are allowed a certain margin of discretion when it comes to combining democracy and liberalism depending on their history, traditions, values and needs. Some may opt for their equal relationship whereby each limits the excesses of the other. Other may decide to assign greater role to the democratic element by providing a greater network of channels for popular participation, whereas the liberal component ensures the protection of minority interests. The most obvious example is the Nordic model of social democracy, where the primacy is assigned not to liberal values, as the classic model of liberal democracy entails, but to democratic controls over injustices in society.¹³⁸ Or the political system can be tailored in a manner to ensure a more balanced relationship between the individual and the community by providing for a fairer distribution of opportunities through the engagement in, inter alia, major economic reforms. This model has been dubbed by Parekh as

‘democratically liberal’ rather than a liberal democracy.¹³⁹ Ultimately, the liberal element may be the dominant partner by ensuring that the democratic process does not undermine individual autonomy and control over decision-making process. To this end, Richard Youngs advocates a guiding principle of

‘liberalism plus’ which suggests that ‘democratic variation should be pursued through innovations that add to the core template of liberal democracy rather than subtract from it’. It means giving ‘greater meaning to political liberalism’s core spirit of tolerance, pluralism, and popular accountability over the powerful’.¹⁴⁰ In other words, one should return to the original procedural understanding of liberalism which emerged as a philosophy of toleration instead of fallaciously associating it with amorality, excessive individualism, attack on conservative tradition and community and intolerance for religion.¹⁴¹

137 Universal Declaration of Human Rights, UNGA Res 217(III)A (10 December 1948) preamble.

138 See Milja Kurki, Democratic Futures: Revisioning Democracy Promotion (Routledge 2013) 67-74.

139 Bhikhu Parekh, ‘The Cultural Particularity of Liberal Democracy’ (1992) 40 Pol Stud, issue s1 August 1992, 160, 169.

140 Richard Youngs, The Puzzle of Non-Western Democracy (Carnegie Endowment for International Peace 2015) 6.

141 ibid 111.

3.5. Conclusion

It is established that the definition of democracy is a critical issue to be addressed if one is to speak of democracy as a human right. Political science is demonstrated to lack a coherent definition of democracy. Within its broad discourse on the notion of democracy, one can distinguish three broad theories:

classical, procedural and substantive, none of which stands scrutiny on its own.

Whereas the classical theory of democracy is too broad, according to which democratic government is the one formed by the will of the people expressed through political participation and serves the people by means of promoting development and material goods, the procedural conception is too narrow and equates democracy to electoral method. Neither provides for the adequate account of democracy, because whilst the former conception does not indicate clear guidelines as to how to distinguish democratic regimes from non-democratic ones, the latter claims that any regime originating in elections is democratic. The substantive conception was invented to tackle the problem of excessive reliance on elections in qualifying the political character of the regime by appealing to democracy’s underlying principles, such as equality and self-empowerment. Yet, because it does not set precise conceptual limits to the application of these principles, it has been widely disqualified as fuzzy and unworkable.

The conceptual indeterminacy of the notion of democracy in political science is exacerbated by the fact that there are two competing models of democracy: revolutionary, characterised by broad public sphere and absence of genuine choice in political processes, and liberal, marked by the centrality of individual liberty in the political space, the presence of internal and external checks on political power and the system of free, fair and regular elections.

The complexity lies in the fact that both models are commonly viewed as democratic but in different ways, and the both could undermine the practice of democracy if carried to extremes: the threat of excessive communitarianism in the case of revolutionary democracy and excessive individualism in the case of the liberal model. Even though it is established that liberal democracy is now widely recognised as the only model compatible with international human rights law, ambiguity as to the precise conceptual frames of its underlying components, such as liberal, constitutional and democratic, persists until today.

The treatment of democracy in international law largely mirrors the uncertainties and challenges faced by political scientists, albeit the procedural liberal conception seems to considerably dominate international legal debate, largely due to its measurability. It revolves around the question of elections and their compatibility with international human rights law. Even though such procedural approach to the definition of democracy is criticised on many fronts, particularly because it conceals and neglects the normative essence of democracy as a framework of empowerment and equality and thereby renders democracy toothless against manipulation by antidemocratic actors, viewing democracy through the prism of elections seems safer and more practical than

delving into complex discussions of democracy’s normative elements, such as respect for human rights and the rule of law, whose empirical ascertainment

delving into complex discussions of democracy’s normative elements, such as respect for human rights and the rule of law, whose empirical ascertainment