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Two Sides of the Same Coin?: Democracy and International Human Rights

Published online by Cambridge University Press:  19 March 2012

Henry J. Steiner
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Abstract

The Article explores relationships between contemporary international human rights and democracy. In what respects are they two sides of the same coin, in what respects are they different coins? Do they depend on and complete each other? Can the two be in contradiction? The Article looks at these questions from several perspectives, including their historical connections, the changing definitions and understandings of each, their functional links, their determinacy, and their character as universal phenomena. It also indicates ways in which courts, which have long interpreted and applied human rights, now also reach decisions about constitutional issues by drawing on their conception of democracy.

Type
A Symposium on Constitutional Rights and International Human Rights honoring Professor David Kretzmer
Information
Israel Law Review , Volume 41 , Issue 3 , Winter 2008 , pp. 445 - 476
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2008

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References

1 See Wilentz, Sean, The Rise of American Democracy (2005)Google Scholar. The author traces the expansion of the limited suffrage from 1789 to 1828. At the start of this period the suffrage included only white male voters and had highly restrictive qualifications within this category. At the end there was an “established principle” that the suffrage extended to all adults in that category. During the period, American democracy developed “piecemeal” at local and national levels. See particularly the Preface and ch. 9. The process of expanding the franchise has since continued—indeed, to the present day—through state and federal legislation and constitutional amendments, as well as through increasingly vigorous judicial and legislative enforcement of the equal right to vote. Rights and democracy interactively grew in scope and depth. Arguments from each body of thought informed and enriched the other.

2 The Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3rd Sess., 1st. plen. mtg., U.N. Doc. A/810 71 (Dec. 12, 1948) [hereinafter UDHR].

3 See generally Beetham, David, Democracy and Human Rights (1999)Google Scholar, particularly ch. 5.

4 The contrast suggested in the text between selective absorption of rights and all-or-nothing acceptance of democratic government has become less stark, indeed blurred, since the vast growth after World War II in the number of democratic states throughout the world. Today's vocabulary has become more varied and nuanced, to capture the different degrees to which democratic structures and ideals have been instituted in different states—for example, through references to “illiberal democracies.” See page 458, infra.

5 Compare the discussion in Halperin, Morton, Democracy and Human Rights: An Argument for Convergence, in Realizing Human Rights 249 (Power, Samantha & Allison, Graham eds., 2000)CrossRefGoogle Scholar.

6 See generally Diamond, Larry, The Spirit of Democracy. at 4-14, 291–96 (2008)Google Scholar.

7 See, e.g., Huntington, Samuel, The Third Wave: Democratization in the Late Twentieth Century (1991)Google Scholar.

8 International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. Doc. A/6316, Dec. 16, 1966, 999 U.N.T.S. 171, entered into force Mar. 23, 1976 [hereinafter ICCPR)].

9 International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), U.N. Doc. A/6316 (Dec. 16, 1966), Dec. 16, 1966, 993 U.N.T.S. 3, entered into force Jan. 3, 1976 [hereinafter ICESCR].

10 See page 455, infra.

11 Nor does the Article explore a distinct though related question: the degree if any to which international officials or institutions may be obligated by the international system to observe basic rights and democratic government. See Moravcsik, Andrew, Is there a ‘Democratic Deficit’ in World Politics? A Framework for Analysis, 39 Government & Opposition 336 (2004)CrossRefGoogle Scholar.

12 See generally Steiner, Henry, Political Participation as a Human Right, 1 Harv. Hum. Rts. Y.B. 77 (1988)Google Scholar.

13 In addition to the several references to equality in other ICCPR articles, it is significant that Article 25 itself refers three times to the notion of equality: equal suffrage, gender equality in all its provisions, and access to public service on general terms of equality. Many today would view equality as an essential characteristic of democratic government. Within the ICCPR, Article 25 most closely approaches a requirement of democratic government.

14 ICCPR, supra note 8, arts. 28-45. See Steiner, Henry, Alston, Philip, & Goodman, Ryan, International Human Rights in Context: Law, Politics, Morals 845-49, 873–90 (3rd ed. 2008)Google Scholar

15 U.N. Human Rights Committee, General Comment No. 25, The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service (art. 25), U.N. Doc. CCPR/C/21/Rev.1/Add.7 (July 12, 1996).

16 The provisions referred to in this paragraph are set forth in paragraphs 1, 2, 6, 7, 8, 11, 12, 19, and 27.

17 See Langlois, Anthony, Human Rights without Democracy? A Critique of the Separationist Thesis, 25 Hum. Rts. Q. 990, 995–1000 (2003)CrossRefGoogle Scholar.

18 Statute of the Council of Europe, May 4, 1949, E.T.S. 1, entered into force Aug. 3, 1949.

19 See Final Declaration and Action Plan on Human Rights and Democracy of the Council of Europe's Second Summit Meeting of Heads of States and Governments (Strasbourg, Oct 11. 1997), 5 I.H.R.R. 581 (1998). That document refers to the states' “attachment to the fundamental principles of the Council of Europe—pluralist democracy, respect for human rights, the rule of law…” Article 4 of its Action Plan describes the states' initiative “for education for democratic citizenship with a view to promoting citizens' awareness of their rights and responsibilities in a democratic society…”

20 Statute of the International Court of Justice, art. 38(1)(b), 59 Stat. 1031; T.S. 993 (1945). Article 38(1)(a) refers to treaties.

21 For analyses of the nature and discourse of rights, including comparisons between judicial interpretation of constitutionally based rights and interpretation of normal legislation, see Bobbio, Norberto, The Age of Rights 18 (trans. Cameron, Allan, 1996)Google Scholar; Klare, Karl, Legal Theory and Democratic Reconstruction, 25 U. of Brit. Colum. L. Rev. 69, 97–103 (1991)Google Scholar; and Kennedy, Duncan, A Critique of Adjudication (1997)Google Scholar, especially chs. 12 & 13. Although directed primarily to national contexts, the observations in these readings illuminate decision-making about the meaning of international human rights by international officials and tribunals as well.

22 This observation, and the Article as a whole, bypasses the related, ever more significant field of the humanitarian laws of war and its notorious violations, such as targeting or recklessly endangering civilians.

23 See page 473, infra, for a discussion of the Inter-American Democratic Charter.

24 See Cover, Robert, Obligation: A Jewish Jurisprudence of the Social Order, 5 J. Law & Relig. 65 (1987)CrossRefGoogle Scholar, for analysis of rights-oriented as opposed to duty-oriented societies.

25 See, e.g., Dahl, Robert, How Democratic is the American Constitution? (2001), at 73-89, 121–57Google Scholar. Dahl's illustrations include: (1) the allocation to each of the 50 states of two senators in the U.S. Senate, whatever the population of that state, so that a voter in a small-population state (Wyoming, about 500,000) exercises far greater voting power than does a voter in a large-population state (California, about 36,000,000); (2) the role of the Electoral College in the election of the President, which gives disproportionate power to smaller states, and which has several times led to election of a president who failed to win the nation's popular vote. Compare such constitutional arrangements with the provisions of General Comment No. 25, supra note 15. See also Levinson, Sanford, Our Undemocratic Constitution (2006), at 25-77, 81–97Google Scholar, which criticizes numerous aspects of the Constitution as undesirable from the perspective of democratic theory, including life tenure for federal judges, and the President's veto power over legislation (subject to Congressional overriding by a supermajority). For both authors, the criticism is directed primarily at the incompatibility of the identified provisions with democratic ideals, rather than to the question of those provisions' consistency with international human rights.

26 See, e.g., Zakaria, Fareed, The Future of Freedom: Illiberal Democracy at Home and Abroad (rev. ed. 2007)Google Scholar; Diamond, supra note 6, at 55.

27 See the discussion of judicial decisions based on understandings of democracy at page 469, infra.

28 Compare the observations in Vermeule, Adrian, Mechanisms of Democracy (2007)CrossRefGoogle Scholar. The author concentrates on the small-scale institutional devices, the “essential mechanisms” of democracy “writ small,” that differ among governments and that may experience considerable changes over time. The design of and choice among these “second order” mechanisms (such as aspects of process and procedure within a legislative body) can have important consequences for implementing or blocking realization of a government's policies.

29 See The Electoral System in Israel, in the Knesset's English website: http://www.knesset.gov.il/description/eng/eng_mimshat_beh.htm (last visited Nov. 10, 2008).

30 Cf. Sen, Amartya, Democracy as a Universal Value, in The Global Divergence of Democracy 3, 9–11 (Diamond, Larry & Plattner, Mark eds., 2001)Google Scholar.

31 See Ian Kershaw, Hitler, 1889-1936: Hubris 431-95 (1998).

32 See Darrow, Mac & Alston, Philip, Bills of Rights in Comparative Perspective, in Promoting Human Rights by Bills of Rights: Comparative Perspectives 465 (Alston, Phillip ed., 1999)Google Scholar.

33 Academic and political debate over judicial review continues to thrive. See, e.g., the current debate between Waldron, Jeremy, The Core of the Case against Judicial Review, 115 Yale L.J. 1346 (2006)CrossRefGoogle Scholar, and Fallon, Richard, The Core of an Uneasy Case for Judicial Review, 121 Harv. L. Rev. 1693 (2008)Google Scholar. Possible outcomes to such debates among scholars or in the political arena range well beyond a 'yes-no” choice about traditional judicial review of legislation. More complex relationships between courts and the legislature may soften that dichotomy and involve both branches in resolving the question of constitutionality or of the consistency of national legislation with human rights treaties. The U.K. Human Rights Act 1998 illustrates such possibilities. See Clapham, Andrew, The European Convention on Human Rights in the British Courts: Problems Associated with the Incorporation of International Human Rights, in Promoting Human Rights by Bills of Rights: Comparative Perspectives 95 (Alston, Phillip ed. 1999)Google Scholar.

34 For critical observations about the stress on the majority rule principle for collective decision-making in theories about democracy see Dworkin, Ronald, Is Democracy Possible Here? 139–43 (2006)CrossRefGoogle Scholar.

35 See Steiner, Henry, Do Human Rights Require a Particular Form of Democracy?, in Democracy the Rule of Law and Islam 193, 202 (Cotran, Eugene & Sherif, Adel Omar eds., 1999)Google Scholar.

36 See Lazare, Daniel, The Frozen Republic (1996)Google Scholar.

37 See ch. 7 of International Human Rights in Context, supra note 14.

38 Cf. the discussion in Langlois, supra note 17.

39 See, e.g., World Conference on Human Rights, June 14-23, 1993, Vienna Declaration and Programme of Action, ¶ 37, U.N, Doc.A/CONF.157/23 Part I, para. 8 (July 12, 1993): “Democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing. Democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives.… The international community should support the strengthening and promoting of democracy.… in the entire world.”

40 Sen, Amartya, Democracy as a Universal Value, in The Global Divergence of Democracy 3, 11–13 (Diamond, Larry & Plattner, Mark eds., 2001)Google Scholar. See Franck, Thomas, The Emerging Right to Democratic Governance, 86 Am. J. Int'l L. 46, 53 (1992)CrossRefGoogle Scholar. Franck describes democracy as “on the way to becoming a global entitlement, one that will be increasingly promoted and protected by collective international process.” With respect to viewing democracy as an entitlement, he underscores the significance of the trend toward “systematic monitoring of compliance” with the requirements for genuine elections by nongovernmental, governmental and intergovernmental observers.

41 Convention on the Elimination of all Forms of Discrimination against Women, G.A. Res. 34/180, ¶ 34, U.N. GAOR, Supp. NO. 46, at 193, U.N. Doc. A/34/36 (Dec. 18, 1979), entered into force Sept. 3, 1981. See particularly arts. 2, 10, 11, 14 & 16.

42 See Pildes, Richard, Foreword: The Constitutionalization of Democratic Politics, 118 Harv. L. Rev. 28 (2004)Google Scholar (discussion concentrates on United States); Hirschl, Ran, The Judicialization of Mega-Politics and the Rise of Political Courts, 11 Annu. Rev. Polit. Sci. 93 (2008)CrossRefGoogle Scholar.

43 The European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221, E.T.S. 5., entered into force Sept. 3, 1953 [hereinafter ECHR].

44 A phrase repeated in id. arts. 9, 10, & 11.

45 Protocol No. 1 to the European Convention on Human Rights and. Fundamental Freedoms, Mar. 20, 1952, 213 U.N.T.S. 262, E.T.S.9., entered into force May 18, 1954.

46 United Communist Party of Turkey v. Turkey, 1998-I Eur. Ct. H. 1.

47 Refah Partisi (The Welfare Party) v. Turkey, 2003-II Eur. Ct. H.R 267.

48 Id. ¶ 98.

49 Id. ¶ 99.

50 Id. ¶ 105.

51 Charter of the Organization of American States, Apr. 30, 1948, O.A.S.T.S No. 1-C (1948), 119 U.N.T.S. 3. Integrated text of the Charter as amended, reprinted in 33 I.L.M. 1529 (1994).

52 Organization of American States, American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. 36, 1144 U.N.T.S. 123.

53 General Assembly of the Organization of American States, AG/RES. 1838 (XXXI-O/01), adopted by the General Assembly of the Organization of American States at its special session held in Lima, Peru, (Sept. 11, 2001), available at website: http://www.oas.org/OASpage/eng/Documents/Democractic_Charter.htm (last visited June 4,2008).

54 Id. art. 1.

55 Id. art. 7.

56 Yatama v. Nicaragua Case 12.388, Inter-Am. C.H.R, Report No. 125/01, OEA/Ser. C 127 (June 3, 2005) (Preliminary Objections, Merits, Reparations and Costs), available at http://www.corteidh.or.cr./docs/casos/articulos/seriec_127_ing.pdf (last visited May 18, 2008). Prior to the Democratic Charter of 2001, a number of Reports of the Inter-American Commission of Human Rights had explored relationships between human rights in the American Convention and the Inter-American system's development of ideas related to democracy. See Steiner, Henry & Alston, Philip, International Human Rights in Context: Law, Politics, Morals 677–87 (2nd ed. 2000)Google Scholar.

57 American Convention on Human Rights, supra note 52, art. 23.

58 Yatama v. Nicaragua, supra note 56, ¶ 229.

59 Id. ¶ 226.

60 Id. ¶ 195.

61 Id. ¶ 201.

62 Id. ¶ 13.

63 Id. ¶ 20.

64 Horwitz, Morton, Foreword: The Constitution of Change: Legal Fundamentality without Fundamentalism, 107 Harv. L. Rev. 30, 57 (1993)Google Scholar.

65 Horwitz, Morton, In Memoriam: William J. Brennan. Jr., 111 Harv. L. Rev. 23, 25 (1997)Google Scholar.

66 Pildes, supra note 42, at 31.