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Democracy as an International Obligation of States and Right of the People

Linda Wittor

There is a clear development towards the acknowledgement of democracy as a universal concern. States and international organisations openly support democracy and condemn setbacks in democratisation and consolidation of democracy. But how far does this development go? The author sheds light on the question of an international obligation of states to promote and protect democratic structures as well as a corresponding right of the people. Coming to the conclusion that such norms exist in certain regions and are emerging universally, the author further analyses whether this challenges existing rules of international law, namely the prohibition of the use of force and intervention. Lastly, it is dealt with the question of whether and how such a norm could be enforced under existing mechanisms.
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B. Democracy as a legal norm in international law


As elaborated above, democracy as a legal norm in international law can appear in two different forms. On the one hand, the norm can represent an international obligation of states (I.). On the other hand, there may be an international right of peoples or individuals to democracy (II.). Of course, both forms cannot be clearly distinguished and might even have the same sources. The following inquiry will separately analyse if the one or the other has emerged in international law.

Article 38(1)(a)-(c) ICJ Statute lists formal sources24 of international law, in other words the manifestation of rights and obligations of subjects of international law. The sources are international conventions, international custom and the general principles of law recognized by civilized nations. There is no hierarchy among these sources.25 However, while international conventions are found easily and prevailed by specific rules for their interpretation,26 there remain a few uncertainties with regard to the determination of international custom and even more for the determination of the general principles. Under Article 38(1)(d) ICJ Statute, judiciary decisions and the teachings of the most qualified publicists may serve as subsidiary means for the determination of rules of international law. Judicial decisions in this regard comprise decisions of international (quasi-) judiciary bodies27 – especially the Human Rights Committee28 – as well ← 31 | 32 → as arbitral tribunals29, regional courts30 and national courts31. The teachings of the most qualified publicists, on the other hand, comprise writings of single legal...

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