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Democracy and International Law*

Published online by Cambridge University Press:  07 July 2009

Jan Wouters ,
Bart De Meester  and
Cedric Ryngaert
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Abstract

Traditionally, international law has barely paid attention to the democratic legitimacy of its most important subjects – states –, having been concerned only with relations between states and not within them. The neutral position of international law vis-à-vis a state's internal form of government changed after the collapse of communism. The question of whether the citizen could claim democratic governance, made headway. The normative value of democracy has also deeply influenced the foreign policy of a large number of states: since the 1990s, respect for democracy has at times been considered a condition for recognizing a new state and it is increasingly a prerequisite for membership of international organizations. A forcible imposition of democracy is however doubtful. Finally, the article examines whether international law itself is made in a sufficiently democratic manner. The formation of international law through treaties or custom, for instance, is inherently suffering from a democracy deficit, even though some remedies seem possible. There are likewise problems of democratic deficits in the decision-making processes in international organizations. Powerful states are able to use decision-making to their advantage by using all kinds of formal and informal mechanisms. The article explores, as a case-study, the situation in the World Trade Organization.

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Articles
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Netherlands Yearbook of International Law , Volume 34 , December 2003 , pp. 139 - 197
Copyright
Copyright © T.M.C. Asser Press 2003

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References

1. See Crawford, J., ‘Democracy and the Body of International Law’, in Fox, G.H. and Roth, B.R., eds., Democratic Governance and International Law (Cambridge, Cambridge University Press 2000) p. 95.Google Scholar

2. See for instance Fukuyama, F., The End of History and the Last Man (Harmondsworth, Penguin Books 1992)Google Scholar; Marks, S., ‘International Law, Democracy, and the End of History’Google Scholar, in Fox and Roth, eds., ibid., at pp. 532–566.

3. Thomas Franck fired the opening shot for the discussion in a much-discussed article from 1992. See Franck, T.M., ‘The Emerging Right to Democratic Governance’, 86 AJIL (1992) pp. 46–91.CrossRefGoogle Scholar

4. According to Art. 2(4) of the UN Charter, states would not be authorized to impose democracy by forcible means. See on the prohibition to intervene also the ‘Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among states in Accordance with the Charter of the United Nations, annex to UNGA Res. 2625 (XXV) of 24 October 1970. See also infra Section 6.

5. See also Art. 1(1) of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights: ‘All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’ See also the Declaration on the Granting of Independence to Colonial Countries and Peoples, UNGA Res. 1514 (XV) of 14 December 1960, para. 2.

6. See for instance Sack, A.N., Les effets de transformations des Etats sur leurs dettes publiques et autres obligations financières (Paris, Recueil Sirey 1927)Google Scholar. See on this matter also Feilchenfeld, E., Public Debts and State Succession (New York, MacMillan 1931)Google Scholar. See also recently Kremer, M. and Jayachandran, S., ‘Odious Debt’, Finance & Development, June 2002Google Scholar, Nr. 2, also available on <http://www.imf.org/external/pubs/ft/fandd/2002/06/kremer.htm>; a long version of their contribution is available under the title ‘Odious debt’ on <http://www.imf.org/external/np/res/seminars/2002/poverty/mksj.pdf>. See also, by the same authors, the opinion ‘Make Odious Debt Too Risky To Issue’, Financial Times (9 May 2003).

7. See <http://www.odiousdebts.org>. Odious debts is an organization that particularly advocates debt relief for the Third World. Under pressure of the United States, the idea of odious debts was also raised in the aftermath of the war in Iraq (2003). However, creditors proclaimed a moratorium on the relief of the debts contracted by Saddam Hussein.

8. Crawford, J., ‘Democracy and the Body of International Law’Google Scholar, in Fox and Roth, eds., op. cit. n. 1, at p. 97.

9. This argument is used for the remittal of the Iraqi debts contracted under the regime of Saddam Hussein. A moratorium on debt repayment has been imposed, awaiting the debt reshuffling by the most important creditors, united in the Paris Club. See <http://www.odiousdebts.org/odiousdebts/index.cfm>; <http://www.washingtontimes.com/commentary/20030409-69247226.htm>; <http://www.jubileeiraq.org>; <http://www.theweeklystandard.com>.

10. See Kant, I., Zum Ewigen Frieden (Erlangen, Fischer 1984).Google Scholar

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13. For a critical evaluation of this these see more particularly Gowa, J.S., Ballots and Bullets: the Elusive Democratic Peace (Princeton NJ, Princeton University Press 1999).Google Scholar

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15. Art. 21(1) UDHR.

16. Art. 21(3) UDHR.

17. Adopted by the UN General Assembly on 16 December 1966, internationally entered into force on 23 March 1976. At present, 149 states are party.

18. Fox, G.H., ‘The Right to Political Participation in International Law’Google Scholar, in Fox and Roth, eds., op. cit. n. 1, at pp. 55–57.

19. Marks, in Fox and Roth, eds., loc. cit. n. 2, at p. 532.

20. See infra Section 3.4.

21. UNGA Res. 43/157, 8 December 1988, para. 2.

22. Cf., the Declarations of the (at that time) Conference for Security and Co-operation in Europe (CSCE) [The CSCE, i.e., the Conference for Security and Co-operation in Europe, started in 1975 in Helsinki. It changed its name to OCSE, Organization for Security and Co-operation in Europe]: ‘The participating states declare that the will of the people, freely and fairly expressed through periodic and genuine elections, is the basis of the authority and legitimacy of all government’ (Art. 6 of the Document of the meeting of Copenhagen, Conference on the Human Dimension of the CSCE, 29 June 1990, ILM (1990) 1309) and ‘Democratic government is based on the will of the people, expressed regularly through free and fair elections’ (CSCE, Charter of Paris for a new Europe, Paris, 21 November 1990, ILM (1991) 194). In the first years after the Cold War, the attention of the international community was only to the electoral side of democracy.

23. The UN General Assembly had at that time not paid any attention to the dialectic relationship between democracy and human rights: It is asserted that democracy cannot take root if participation rights, such as the freedom of expression and assembly, are not first constitutionally guaranteed (Crawford, in Fox and Roth, eds., loc. cit. n. 8, at pp. 94–95). The negative experience with democracy in a number of previously totalitarian states led, in the 1990s, to more attention to the interrelation of democracy and the rule of law (see infra).

24. UNGA Res. 44/146, 15 December 1989, para. 4.

25. See Ben Achour, R., ‘La contribution de Boutros Boutros-Ghali à l'émergence d'un droit international positif de la démocratie’, in Boutros Boutros-Ghali Amicorum Discipulorumque Liber (Brussels, Bruylant 1998) p. 917.Google Scholar

26. UNGA Res. 46/137, 17 December 1991, para. 18.

27. Ben Achour, loc. cit. n. 25, p. 917.

28. UNGA Res. 47/138, 18 December 1992; UNGA Res. 48/131, 20 December 1993; UNGA Res. 49/30, 7 December 1994; UNGA Res. 49/190, 23 December 1994; UNGA Res. 50/133, 20 December 1995; UNGA Res. 51/31, 6 December 1996; UNGA Res. 52/18, 15 January 1998; UNGA Res. 53/31, 23 November 1998; UNGA Res. 54/36, 29 November 1999; UNGA Res. 55/44, 27 November 2000; UNGA Res. 56/96, 14 December 2001.

29. See supra n. 12.

30. Boutros-Ghali had, already in 1992, upon request of the Security Council, drafted An Agenda for Peace (A/47/277-s/24111, 31 January 1992) and, in 1994, upon request of the General Assembly, An Agenda for Development (A/48/935, 6 May 1994), in which he pleaded for democracy as means to realise peace and development.

31. B. Boutros-Ghali, An Agenda for Democratization, para. 8 and para. 28.

32. Ibid., para. 41.

33. Some go even further back in time. On the basis of Chapters XI and XII of the UN Charter, the UN General Assembly could validate the democratic process in the so-called trust areas. To legitimize the transfer from colonial oppression to independence, the General Assembly frequently monitored the elections in the newly independent countries in the 1960s.

34. UNSC Res. 628 and 629 (1989).

35. UNSC Res. 637 (1989).

36. UNGA Res. 45/2 (1990).

37. UNGA Res. 47/114 (1992).

38. UNSC Res. 717 and 745 (1991).

39. UNSC Res. 782 and 797 (1992).

40. UNSC Res. 894 (1994).

41. East Timor is a special case, since the territory was since 1999 under UN administration (UNTAET) on the basis of UNSC Res. 1272.

42. On election monitoring and international law, see Franck, T.M., ‘Legitimacy and the Democratic Entitlement’Google Scholar, in Fox and Roth, eds., op. cit. n. 1, at pp. 32–46; Fox, loc. cit. n. 18, at pp. 70–84.

43. ‘1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. 2. Everyone has the right to equal access to public service in his country. 3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be held by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.’

44. ‘Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions: (a) to take part in the conduct of public affairs, directly or through freely chosen representatives; (b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) to have access, on general terms of equality, to public service in his country.’

45. ‘The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure free expression of the opinion of the people in the choice of the legislature.’

46. Under the heading ‘Human Rights, Democracy and Rule of Law’: ‘Democratic government is based on the will of the people, expressed regularly through free and fair elections. Everyone also has the right: […] to participate in free and fair elections.’ CSCE, Charter of Paris for a New Europe, Paris, 21 November 1991Google Scholar, available at <http://www.osce.org/docs/english/1990-1999/summits/paris90e.htm#Anchor-Huma-3228>.

47. CSCE, Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, Copenhagen, 29 June 1990Google Scholar, available at <http://www.osce.org/docs/english/1990-1999/hd/cope90e.htm>.

48. ODIHR Guidelines for reviewing a legal framework for elections, Warsaw, January 2001, p. 1Google Scholar, <http://www.osce.org/odihr/documents/guidelines/gl_rlfr_eng.pdf>.

49. Parliamentary Assembly of the Council of Europe, Res. 1264 (2001) of 8 November 2001, para. 3, available at <http://assembly.coe.int/Documents/AdoptedText/ta01/eres1264.htm#_ftnl>.

50. The European Commission for Democracy through Law was established on 10 March 1990 by the Committee of Ministers of the Council of Europe. As a supplementary organ of the Council of Europe it is based on the Partial Agreement Establishing the European Commission for Democracy through Law. (Council of Europe Committee of Ministers, Res. (90) 6 of 10 May 1990, <http://conventions.coe.int/Treaty/EN/PartialAgr/Html/Venise9006.htm>). Meanwhile, all Member States of the Council of Europe have become Member to the said agreement. The Commission is composed of independent experts who have achieved international fame through their experience in democratic institutions or through their contribution to the enhancement of law or political science. They work in their individual capacity and shall not receive or accept any instructions. The Commission is nowadays governed by a Revised Statute (Council of Europe Committee of Ministers, Res. 3 (2002) of 21 February 2002, <http://conventions.coe.int/Treaty/EN/PartialAgr/Html/Venise2002-3.htm>). The Commission is set up as a consultative body that co-operates with the Member States of the Council of Europe and also with non-Member States. It can formulate opinions on its own initiative or upon request of the organs of the Council of Europe, any Member State, an international organization or any institution that is related to the Venice Commission (Art. 1 Revised Statute).

51. Parliamentary Assembly of the Council of Europe, Res. 1264 (2001) of 8 November 2001, para. 6, <http://assembly.coe.int/Documents/AdoptedText/ta01/eres1264.htm#_ftnl>.

52. More precisely on 5–6 July 2002, at the 51st plenary session of the Venice Commission: see Code of Good Practice in Electoral Matters. Guidelines and Draft Explanatory Report, Opinion Nr. 190/2002_el, CDL-EL (2002), <http://venice.coe.int/docs/2002/CDL-AD(2002)023rev-e.html>.

53. Introduction to the Code of Good Practice in Electoral Matters, Opinion Nr. 190/2002_el, CDL-EL (2002), 5, <http://venice.coe.int/docs/2002/CDL-AD(2002)023rev-e.html>.

54. The right for foreign residents to vote and stand for elections in local authority elections is recognized in Art. 6 of the Council of Europe Convention on participation of foreigners in public life at local level, done at Strasbourg on 5 February 1992, ETS Nr. 144, <http://conventions.coe.int/Treaty/en/Treaties/Word/144.doc>. However, only 7 Member States of the Council of Europe have ratified this convention. Also the granting of the right to vote to nationals living abroad is a contentious issue, especially when nationality is granted on an ethnic basis. The draft explanatory report of the Code of Good Practice points to the example of Croatia conferring political rights on Croats living in Bosnia-Herzegovina. This is held unreasonable, particularly where local elections are concerned. See Explanatory Report to the Code of Good Practice, Opinion Nr. 190/2002_el, CDL-EL (2002), 14, <http://venice.coe.int/docs/2002/CDL-AD(2002)023rev-e.html> (hereafter ‘Draft Explanatory Report’).

55. This implies a balanced distribution of seats among constituencies, in order to avoid active (i.e., distribution of seats causing inequalities in representation as soon as it is applied) and passive (i.e., inequalities arising from protracted retention of an unaltered territorial distribution of seats and constituencies) ‘electoral geometry’. Idem., 16.

56. See Lenoir, N., ‘The representation of women in polities’, ICLQ (2001) pp. 217–247.Google Scholar

57. See, inter alia, Brolmann, C., Lefeber, R. and Zieck, M., eds., Peoples and Minorities in International Law (Dordrecht, Martinus Nijhoff 1995).Google Scholar

58. The state should make sure each party has even-handed access to media, billposting and funding. The state should also prevent and punish buying of votes by individuals. Explanatory Report to the Code of Good Practice, Opinion Nr. 190/2002_el, CDL-EL (2002), 19, <http://venice.coe.int/docs/2002/CDL-AD(2002)023rev-e.html>.

59. According to the Code of Good Practice, non-compliance must be punishable by disqualification of any ballot paper whose content is disclosed.

60. Delperée, F., ed., La participation directe du citoyen à la vie politique et administrative (Brussels, Bruylant 1986).Google Scholar

61. See also Art. 3.2 of the European Charter of local self-government, ETS Nr. 122, <http://conventions.coe.int/Treaty/en/Treaties/Html/122.htm>.

62. Draft Explanatory Report, p. 25.

63. See, inter alia, Beigbeder, Y., Le contrôle international des élections (Brussels, Bruylant 1994)Google Scholar; Idem, International monitoring of plebiscites, referenda and national elections: self determination and transition to democracy (Dordrecht, Martinus Nijhoff 1994)Google Scholar; Van Haegendoren, G., ‘International Election Monitoring’, 20 RBDI (1987) pp. 86–123Google Scholar; Freedom of elections and international observation of elections (Brussels, Bruylant, 1995).Google Scholar

64. See on the differences and consequences Grofman, B. and Lijphart, A., Electoral laws and their political consequences (New York, Agathon Press 1986).Google Scholar

65. Draft Explanatory Report, p. 33.

66. Code of Good Practice in Electoral Matters, Parliamentary Assembly Recommendation 1595 (2003), 30 January 2003, <http://assembly.coe.int/Documents/AdoptedText/TA03/EREC1595.htm>.

67. Code of Good Practice in Electoral Matters, Parliamentary Assembly Recommendation 1595 (2003) (reply adopted by the Committee of Ministers on 9 October 2003 at the 855th meeting of Ministers’ Deputies), CM/AS (2003) Rec. 1995 final, 13 October 2003, para 2, <https://wcm.coe.int/ViewDoc.jsp?id=74515&Lang=en>.

68. Ibid., para 4.

69. ODIHR Guidelines for reviewing a legal framework for elections, Warsaw, January 2001, p. 1Google Scholar, <http://www.osce.org/odihr/documents/guidelines/gl_rlfr_eng.pdf>.

70. OSCE, ‘Existing Commitments for Democratic Elections in OSCE Participating states. A progress report’, October 2003, p. 55Google Scholar, <http://www.osce.org/documents/odihr/2003/10/772_en.pdf>.

71. The ACEEEO was created in November 1991 in Budapest. It is a non-governmental nonprofit organization with the aim to contribute to democratic and fair elections in the Central and Eastern European region. The Association consists of Central and Eastern European election organs (with voting power) and also election organs from non-European states and interested national and international organizations, non-governmental organizations and individuals (all without voting power). The ACEEEO has consultative status in the Council of Europe. See Charter of the ACEEEO, adopted in Vilnius on 27 November 1998 and modified in Warsaw on 16 June 2000, <http://www.aceeeo.org/about/2htm>.

72. Draft Convention ‘On Election Standards, Electoral Rights and Freedoms’, approved by the ACEEEO in Moscow on 26–28 September 2002, <http://assembly.coe.int/Documents/WorkingDocs/doc02/EDOC9646.htm>.

73. Explanatory Note to the Draft Convention ‘On Election Standards, Electoral Rights and Freedoms’, <http://www.cikrf.ru/conference/conference_konv_en_proekt2.htm>.

74. Idem.

75. For a comment on the Draft Convention, see Grabenwarter, C., Comments on the Draft Convention on Election Standards, Electoral Rights and Freedoms, Venice Commission opinion Nr. 253/2003, CDL-EL (2003) 14Google Scholar, <http://www.venice.coe.int/site/interface/english.htm>.

76. Convention on the Standards of Democratic Elections, Electoral Rights and Freedoms in the Member States of the Commonwealth of Independent States (non-official translation), done at Kishinev on 7 October 2002.

77. Commonwealth of Independent States, Inter-Parliamentary Assembly, Res. 20–6 of 7 December 2002, <http://www.cikrf.ru/conference/resolution_7-12-02.htm>.

78. The UN has to receive a formal request of a Member State. See Boutros-Ghali, An Agenda for Democratization, para. 12.

79. Franck, in Fox and Roth, eds., loc. cit. n. 42, at pp. 43–44. The case of Zimbabwe may serve as an example of resistance to ‘neo-colonialist’ election monitoring. See Matiosa, K., ‘Election Monitoring and Observation in Zimbabwe: Hegemony versus Sovereignty’, 7 African Journal of Political Science (2002) pp. 129–154.Google Scholar

80. Speech on the occasion of the reception of the degree of Doctor Honoris Causa from the University Montesquieu- Bordeaux IV, 22 March 1996, cited in Ben Achour, loc. cit. n. 25, at p. 916.

81. Art. 31 (3) (b) Vienna Convention on the Law of Treaties, 23 May 1969 (hereinafter Vienna Convention).

82. E/.CN.4/1999/L.55/Rev.2.

83. Commission on Human Rights, press notice, HR/CN/99/61, 27 April 1999, available on <http://193.194.138.190/huricane/huricane.nsf/0?C4136C5E4B99AA4780256761004B93F5?opendocument>. See for instance India: ‘All peoples had the right to democracy, since it was a form of government rising from the people. It could not be proposed from outside’. Pakistan: ‘It was the consistent view of the Pakistani delegation that democratic governments must take into account the traditions and cultures of every country. Pakistan believed that any provision relating to democracy must take into account any foreign nations in occupation of lands not their own; such countries must not be allowed to use the façade of elections to justify their occupation or colonial domination.’ This was not included in the text. Indonesia: ‘Democracy was not to be put into a straightjacket as a “right”.’; China: ‘The promotion of democracy should also be based on respect for the differing historical, social and economic background of countries. The draft resolution did not contain this element, and for this reason China would abstain from the vote.’

84. Arts. 1 and 3 of the Universal Declaration on Democracy, adopted without voting by the Interparliamentary Council at its 161st session, Cairo, 16 September 1997, 1 NQHR, (2000) pp, 127–130Google Scholar. Art. 1 of the Universal Declaration on Democracy is in a sense drafted contradictorily. On the one hand the first sentence indicates that the democratic ideal is based on democratic values that are shared without any distinction by all peoples. On the other hand the second sentence of the article talks about a ‘basic right of citizenship’, which, however, has to pay respect to a ‘plurality of views’ and ‘the interest of the polity’. Art. 2 defines from that point of view that democracy is ‘a constantly perfected and always perfectible state or condition’.

85. ‘Warsaw Declaration: Towards a Community of Democracies, 27 June 2000’, ILM (2000) p. 1306Google Scholar. Around 100 countries agreed to this declaration. See for the text also <http://www.pdgs.org.ar/featured/prss-demo2.htm>.

86. The former Iraqi dictator Saddam Hussein was elected on 16 October 2002 with 100 percent of the votes for a new term as president. Also, in the People's Republic of China, all representatives in the National Congress are elected by well-elaborated procedures. China remains a one-party state but the Communist Party is since its 16th National Congress in 2002 open to all sections of society. This should enhance its democratic legitimacy. See <http://www.16congress.org.cn>.

87. Fox, G.H. and Roth, B.R., ‘Introduction: the Spread of Liberal Democracy and its Implications for International Law’Google Scholar, in Fox and Roth, eds., op. cit. n. 1, at pp. 14–15.

88. Boutros-Ghali, An agenda for Democratization, para. 45. See also Universal Declaration on Democracy, supra n. 84, Arts. 6 to 23.

89. The European Court on Human Rights has elaborated a large jurisprudence on this matter, which however goes beyond the underlying dissertation. See Wheatley, S., ‘Democracy in International Law: A European Perspective’, 51 ICLQ (2002) pp. 225–247.CrossRefGoogle Scholar

90. See on democracy and accountability in international law Ratner, S.R., ‘Democracy and Accountability: the Criss-crossing Paths of Two Emerging Norms’Google Scholar, in Fox and B.R. Roth, eds., op. cit. n. 1, pp. 449–492.

91. See Murphy, S.D., ‘Democratic Legitimacy and the Recognition of states and Governments’Google Scholar, in Fox and Roth, eds., op. cit. n. 1, at pp. 125–128.

92. See Rich, R., ‘Recognition of States: The Collapse of Yugoslavia and the Soviet Union’, 4 EJIL (1993)at p. 55.CrossRefGoogle Scholar

93. See Ben Achour, loc. cit. n. 25, at p. 910. The right to self-determination overshadowed all other considerations. See Declaration on the Granting of Independence to Colonial Countries and Peoples, supra n. 5.

94. Ratified by the ministers of foreign affairs of the Member States of the EC in the frame-work of the European Political Co-operation in Brussels on 16 December 1991, 12 Bulletin of the European Communities (1991) pp. 120–121Google Scholar, paras. 1.4.5–1.4.6.

95. These criteria were included in the guidelines on recognition of new states in Eastern Europe, but also apply, according to common declaration on Yugoslavia, to all Yugoslavian republics that declare before 23 December 1991 ‘whether they wish to be recognised as independent states’, ‘whether accept the provisions laid down in the draft Convention – especially those in Chapter II on human rights and rights of national and ethnic groups – under consideration by the Conference on Yugoslavia’ and ‘whether they continue to support the efforts of the Secretary General and the Security Council of the United Nations and the continuation of the Conference on Yugoslavia’.

96. See for a chronology of the recognition of Croatia: <http://www.croatiaemb.org/in%20the%20spotlight/chronology.htm>.

97. UNSC Res. 817(1993).

98. See <www.bosnia.org.uk/bosnia/history.cfm>. On the criteria for recognition in former Yugoslavia, see further: Murphy, loc. cit. n. 91, at pp. 132–139.

99. See on the shifts in opinions on criteria for recognition: Rich, loc. cit. n. 92, at pp. 55–56 and 63–65.

100. Murphy points to the fact that Bosnia-Herzegovina was recognized although the traditional conditions were not fulfilled. Conversely, Nagorno-Karabach was not recognized, although the traditional conditions were apparently fulfilled (Murphy, loc. cit. n. 91, at pp. 132, 136 and 138). Rich insinuates that the new criteria supplanted the former ones (Rich, loc. cit. n. 92, at p. 43).

101. See Rich, loc. cit. n. 91, at pp. 60–62.

102. See Murphy, loc. cit. n. 91, at p. 135.

103. North-Atlantic Treaty, signed in Washington DC on 4 April 1949.

104. Emphasis added.

105. Washington Declaration, North Atlantic Council, 23–24 April 1999, available at <http://www.nato.int/docu/pr/1999/p99-063e.htm>.

106. Emphasis added.

107. Treaty on the establishment of the Council of Europe, signed in London on 5 May 1949.

108. The latter state has signed the protocol on 3 April 2003: <http://conventions.coe.int/treaty/EN/cadreprincipal.htm>.

109. The preamble of the original version of the Treaty on European Union contained (Treaty of Maastricht, 1992) a similar provision: see inter alia, Devroe, W. and Wouters, J., De Europese Unie. Het Verdrag van Maastricht en zijn uitvoering: analyse en perspectieven, [The European Union. The Treaty of Maastricht and Its Execution: Analysis and Perspectives] (Leuven, Peeters 1996) at pp. 92–93, Nos. 104–106Google Scholar. See for an analysis of Art. 6 TEU, inter alia, Verhoeven, A., The European Union in Search of a Democratic and Constitutional Theory (The Hague, Kluwer Law International 2002) at pp. 321–325.Google Scholar

110. See European Commission, The European Union: the Enlargement Proceeds (Brussels, 2001) 23 p.Google Scholar, also available on <http://www.europe.eu.int/comm/publications/booklets/move/30/txt_eng.pdf>.

111. For the final version, see CONV 850/03, available on <http://www.europe.eu.int/futurum/index_eng.htm>.

112. Arts. I-44 to I-51 of the Constitution.

113. See on this matter also Crum, B., ‘Vertegenwoordigende democratic in de Europese Unie. Een verkenning van de institutionele mogelijkheden’, Paper for the conference ‘De Nederlandse stem in de Europese Conventie’, Wetenschappelijke Raad voor het Regeringsbeleid, The Hague, 21 May 2003Google Scholar, available via <http://www.wrr.n1/ne/nieuws.php#22>.

114. It has for long been well-established case-law of the European Court of Justice that actions by EU Member States must respect fundamental rights as far as they fall within the scope of Community law: see A. Verhoeven, op. cit. n. 109, at pp. 354–359. Arts. 6 and 7 TEU also require respect for democracy and the rule of law outside the Community pillar.

115. For a discussion, see inter alia, Wouters, J., ‘Institutionele aspecten van het Verdrag van Amsterdam’ [Institutional Aspects of the Amsterdam Treaty], in Blanpain, R., ed., Europa na het Verdrag van Amsterdam, [Europe After the Treaty of Amsterdam] (Leuven, Peeters 1998) at pp. 66–68, paras 75–77.Google Scholar

116. For the Community pillar, Art. 309 EC, similar to Art. 7, is applicable.

117. Art. 46(e) TEU.

118. See on Art. 7 TEU also Verhoeven, op. cit. n. 109, at pp. 349–354.

119. Art. 9 of the OAS Statute was only included by the Protocol of Washington (14 December 1992). This Protocol has entered into force since more than two thirds of the OAS Members have ratified it (<http://www1.umn.edu/humanrts/oasinstr/washingtonratifications.html>). On 5 December 1985 the Protocol of Cartagena had already confirmed that representative democracy is indis–pensable for stability, peace and development in the region. Since this Protocol, promotion and confirmation of representative democracy are major objectives of the OAS.

120. See for the text of this Charter <http://www.oas.org/charter/docs/resolutionl_en_p4.htm>.

121. The Secretary-General of the OAS, Cesar Gaviria, offered his good offices to solve a political stand-off and avoid the danger of a new coup against the democratically elected President Hugo Chavez. On 4 June 2002 the OAS adopted a declaration on democracy in Venezuela (<http://www.oas.org/xxxiiga/english/docs_en/docs_items/AGcgdoc16_02.htm>). On 19 December 2002, it voted a resolution to support the efforts of the Secretary-General and the democratic structures in Venezuela (<http://www.oas.org/OASpage/eng/Venezuela/CP10628E01.htm>). It is accepted that the OAS plays an important role in safeguarding of the Venezolan democracy (see for instance the declaration of the American ambassador Noriega vis-à-vis the Permanent Council of the OAS on 28 May 2002, <http://www.uspolicy.be/Issues/Foreignpolicy/noriega.052902.htm>; see also <http://www.csmonitor.com/2002/1008/p09s02-coop.html>).

122. A/RES/55/2. See <http://www.un.org/millennium/declaration/ares552e.htm>.

123. Ibid., para. 6.

124. Ibid., para. 24. See referring to the Millennium Declaration quotations, UNDP Thematic Trust Fund, Democratic Governance, available at <http://www.undp.org/trustfunds/devgovttf.pdf.>

125. Ibid., paras. 25, 27 and 28 also contain commitments with respect to support for the consolidation of democracy in Africa and the political and institutional structures of emerging democracies in Africa.

126. The election was fiercely criticized by the United States. See <http://www.usinfo.state.gov/topical/pol/terror/03011310.htm>.

127. This requirement is even inserted into the Statute of the European Bank for Reconstruction and Development (EBRD). See Art. 1 of the Treaty Establishing the EBRD, available at <www.ebrd.org>: ‘In contributing to economic progress and reconstruction, the purpose of the Bank shall be to foster the transition towards open market-oriented economies and to promote private and entrepreneurial initiative in the central and eastern European countries committed to and applying the principles of multiparty democracy, pluralism and market economics.’

128. See World Bank, Governance and Development, the World Bank (Washington, 1992)Google Scholar; World Bank, Governance. The World Bank's Experience, the World Bank, (Washington, 1994)Google Scholar; World Bank, Helping Countries Combat Corruption. The Role of the World Bank, (Washington, 1997)Google Scholar; World Bank, Development and Human Rights. The Role of the World Bank, (Washington, 1998)Google Scholar; <http://www.worldbank.org/wbi/governance/overview.htm>; Camdessus, M., ‘Good Governance. The IMF's Role, attached to The Role of the IMF in Governance Issues Guidance Note’, approved by the IMF Board of Governors on 25 July 1997Google Scholar, <www.imf.org/external/pubs/ft/exrp/gov-ern/govindex.htm>. For an overview, see Wouters, J. and Ryngaert, C., ‘Good governance: lessons from international organizations’, in Curtin, D.M. and Wessel, R.A., eds., Good Governance in the European Union. Lessons from National and International Law (Schoten, Intersentia 2004) (forthcoming).Google Scholar

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130. The NEPAD-initiative was received positively during the G-8 Summit in 2002 (<www.g8.utoronto.ca/evaluations/2002kananaskis/assessment_africaplan.html>). During the G-8 Summit in 2003, an action plan and implementation report with respect to NEPAD were presented (<http://www.g8.fr/evian/english/navigation/news/meeting_of_the_g8_aid_agencies_on_nepad._press_conference_given_by_the_minister_delegate_for_cooperation_and_francophony__pierre-andre_wiltzer.html>).

131. See for the latter for instance the so-called Cotonou Agreement, which entered into force on 1 April 2003 (2000/483/EG, Partnership Agreement Between the Members of the African, Caribbean and Pacific Group of states and the European Community and its Member states, signed in Cotonou, 23 June 2000, OJ L 317/3, 2000). Art. 9 of the Agreement stipulates that respect for human rights, democratic principles and the rule of law are essential elements of the Agreement. Art. 96 provides for a consultation procedure in case the requirements of Art. 9 are not met. Appropriate measures could be takea. including ultimately the suspension of the Agreement.

132. See Reisman, W.M., ‘Coercion and Self-Determination: Construing Charter Article 2(4)’, 78 AJIL (1984) pp. 642–645CrossRefGoogle Scholar. Reisman draws on the speech delivered by Elihu Root at the Annual Meeting of the Society in 1917, to which reference was made above (supra Section 3.1): ‘So long as military autocracy continues, democracy is not safe from attacks, which are certain to come some–time, and certain to find it unprepared. The conflict is inevitable and universal; and it is à l'outrance. To be safe democracy must kill its enemy when it can and where it can. The world cannot be half democratic and half autocratic’ E. Root, loc. cit. n. 11, at p. 10.

133. See D'Amato, A., ‘The Invasion of Panama was a Lawful Response to Tyranny, 84 AJIL (1990) at p. 516CrossRefGoogle Scholar, refuting Farer's argument that ‘[i]f sovereignty means anything, it means that one state cannot compromise another state's territorial integrity or dictate the character or the occupants of its governing institutions.’ (Farer, T.M., ‘Panama: Beyond the Charter Paradigm’, 84 AJIL (1990) at p. 507)CrossRefGoogle Scholar. Interestingly, D'Amato does not term the intervention favoured by him ‘pro-democratic’, but rather ‘anti-tyranny’, thereby referring to the duty to stop widespread human rights abuses, and, thus, to humanitarian intervention (D'Amato, ibid., at p. 519).

134. Ibid., at p. 520.

135. See on the Reagan-doctrine and additional reading: <http://www.state.gov/r/pa/ho/time/dr/17741.htm>.

136. See inter alia, Doswald-Beck, L., ‘The Legality of the United States Intervention in Grenada, Indian JIL (1984), 200–223Google Scholar; Gordon, E. and Committee on Grenada, ‘International Law and the United States Action in Grenada’, 18 The International Lawyer (1984) pp. 331–380Google Scholar; Joyner, C.C., ‘The United States Action in Grenada: Reflections on the Lawfulness of Invasion’, 78 AJIL (1984) pp. 131–144CrossRefGoogle Scholar; Karas, J.M. and Goodman, J.M., The United States Action in Grenada: an Exercise in Realpolitik’, 16 Univ. Miami LR (1984) pp. 53–108Google Scholar; Moore, J.N., Law and the Grenada Mission (Charlottesville VA, University of Virginia School of Law, Center for Law and National Security, 1984)Google Scholar; Moore, J.N., ‘Grenada and the International Double Standard’, 78 AJIL (1984) pp. 145–168CrossRefGoogle Scholar; Vagts, D.F., ‘International Law Under Time Pressure: Grading the Grenada take-home examination’, 78 AJIL (1984) pp. 169–172CrossRefGoogle Scholar; Dunn, P.M., American Intervention in Grenada: the Implication of Operation “Urgent Fury” (Boulder CO, Westview 1985)Google Scholar; Levitin, M.J., ‘The Law of Force and the Force of Law: Grenada, the Falklands, and Humanitarian Intervention’, 27 Harvard ILJ (1986) pp. 621–657Google Scholar; Maizel, S.R., ‘Intervention in Grenada’, 35 Naval LR (1986) pp. 47–86Google Scholar; Davidson, S., Grenada: a Study in Politics and the Limits of International Law (Aldershot, Avebury 1987)Google Scholar; Hilaire, M., ‘International Law and the United States Intervention in Grenada’, 30 Revue de droit militaire et de droit de guerre (1991) pp. 147–182Google Scholar; Beck, R.J., The Grenada Invasion: Politics, Law and Foreign Policy Decision Making (Boulder, West View Press 1993)Google Scholar; Beck, R.J., ‘International Law and the Decision to Invade Grenada: a Ten-Year Retrospective’, 33 Virginia JIL (1993) pp. 765–817.Google Scholar

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138. See Reisman, W.M., ‘Humanitarian Intervention and Fledgling Democracies’, Fordham International Law Journal (1995), 794–805Google Scholar; Reisman, W.M., ‘Sovereignty and Human Rights in Contemporary International Law’Google Scholar, in Fox and Roth, op. cit. n. 1, pp. 239–258.

139. See D'Amato, loc. cit. n. 133. D'Amato's analysis is as controversial as it is influential. He contends that only physical acts and not statements constitute state practice for the purposes of customary international law. This implies that the physical act of pro-democratic intervention by states contributes to the formation of a rule of customary international law, whereas statements by states condemning such action would be irrelevant.

140. See Teson, F.R., ‘Collective Humanitarian Intervention’, 17 Michigan JIL (1996) pp. 323–371Google Scholar; Teson, F.R., Humanitarian Intervention: an Inquiry into Law and Morality (Irvington-on-Hudson NY, Transnational Publishers 1997) 338 pp.Google Scholar; Teson, F.R., ‘The Liberal Case for Humanitarian Intervention’, in Holzgrefe, J.L. and Keohane, R.O., eds., Humanitarian Intervention (Cambridge, Cambridge University Press 2003) pp. 93–129.CrossRefGoogle Scholar

141. See for an early response to Reisman, Schachter, O., ‘The Legality of Pro-Democratic Invasion’, 78 AJIL (1984) pp. 645–650.CrossRefGoogle Scholar

142. See Byers, M. and Chesterman, S., ‘“You, the People”: Pro-democratic Intervention in International Law’Google Scholar, in Fox and Roth, eds., op. cit. n. 1, pp. 259–292.

143. Ibid., at pp. 272–273. Upon receiving the ‘invitation’, however, the preparation of the intervention was already in an advanced stage. See infra on pro-democratic intervention by invitation.

144. ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) 27 June 1986Google Scholar, ICJ Rep. (1986) p. 109, para. 208: ‘[T]he United States has, on the legal plane, justified its intervention expressly and solely by reference to the “classic” rules involved, namely, collective self-defence against an armed attack.’; pp. 109–110, para. 209: ‘The Court therefore finds that no such general right of intervention, in support of an opposition within another state, exists in contemporary international law.’

145. See M. Byers and S. Chesterman, loc. cit. n. 145, pp. 274–279.

146. UNGA Res. 44/240 (1989). In the same vein, the Grenada intervention was condemned by UNGA Res. 38/7 (1983). In both instances, condemnation of the intervention by the Security Council was vetoed by the United States.

147. The Economist, ‘America's debate on Haiti: Did he go or was he pushed?’ (6 March 2004).Google Scholar

148. See Wippman, D., ‘Pro-democratic Intervention by Invitation’Google Scholar, in Fox and Roth, eds., op. cit. n. 1, pp. 294–295. Interestingly, Wippman was counsel for Nicaragua in the Nicaragua case (1986).

149. International Law Commission, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts’, 2001, available at <http://www.un.org/law/ilc/archives/statresp.htm>.

150. UNSC Res. 387 (1976).

151. See ICJ, Nicaragua, ICJ Rep. (1986) p. 108Google Scholar, para. 206: ‘[The Court] has to consider whether there might be indications of a practice illustrative of belief in a kind of general right for states to intervene, directly or indirectly, with or without armed force, in support of an internal opposition in another state, […]’; pp. 109–110, para. 209: ‘The Court […] finds that no such general right of intervention, in support of an opposition within another state, exists in contemporary international law.’

152. See Wippman, loc. cit. n. 148, at pp. 295 and 300.

153. See ICJ, Nicaragua, ICJ Rep. (1986) pp. 100–101Google Scholar, para. 190; II Yb ILC (1966) at p. 248.

154. See ICJ, Nicaragua, ICJ Rep. (1986) p. 101, para. 191.Google Scholar

155. Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among states In Accordance with the Charter of the United Nations, UNGA Res. 2625 (XXV) (1970): ‘Every state has an inalienable right to choose its political, economic and cultural systems, without interference in any form by another state.’

156. See Gray, C., International Law and the Use of Force (Oxford, Oxford University Press 2000) at p. 57Google Scholar. See also Schachter, O., ‘International Law: the Right of States to Use Armed Force’, 82 Michigan LR (1984) at p. 1641CrossRefGoogle Scholar; Moore, J.N., ‘Legal Standards for Intervention in Internal Conflicts’, 13 Georgia JICL (1983) at p. 196.Google Scholar

157. Art. 39 UN Charter.

158. See Glennon, M., ‘Sovereignty and Community after Haiti: Rethinking the Collective Use of Force’, 89 AJIL (1995), at p. 72CrossRefGoogle Scholar; Byers and Chesterman, loc. cit. n. 142, at pp. 282–283.

159. See for Southern Rhodesia: UNSC Res. 221 (1966) and 232 (1966), 253 (1968), 277 (1970), 386 (1976), 403 (1977), 411 (1977), 423 (1978), 445 (1979), 418 (1977). See for South Africa: UNSC Res. 386 (1976), 403 (1977), 411 (1977), 423 (1978), 445 (1979).

160. See the ‘Declaration on the Granting of Independence to Colonial Territories and Peoples’, UNGA Res. 1514 (XV), 1960.

161. See Miller, R.A., ‘Self-Determination in International Law and the Demise of Democracy’, 41 Columbia JTL (2003) pp. 601–648.Google Scholar

162. UNSC Res. 841 (1993).

163. Byers and Chesterman note that humanitarian intervention was considered more important, because it was mentioned earlier in the preamble. See Byers and Chesterman, loc. cit. n. 142, at p. 287. Such a reading is, however, difficult to reconcile with the ‘unique and exceptional circumstances’ that the Security Council found in the Haiti case. Indeed, in 1992, the Security Council had already espoused the concept of humanitarian intervention so as to intervene in Somalia (UNSC Res. 733(1992)).

164. See supra.

165. Council of Ministers of the OAU, 33th Ordinary Session, Harare (Zimbabwe), 28–31 May 1997, DOC.CM/2004 (LXVI).

166. Communique issued at the meeting of the Foreign Ministers of ECOWAS on Sierra Leone, Conakry (Guinea), 26 June 1997 (S/1997/499); Declaration of the ECOWAS Committee of Four Foreign Ministers on Sierra Leone (ECOWAS Committee), 30 July 1997 (S/1997/646); final Communiqué of the Summit of ECOWAS, Abuja (Nigeria), 28–29 August 1997; Decision on sanctions against the military junta in Sierra Leone issued at the summit (S/1997/695, Annexes I and II).

167. UNSC Res. 1132(1997).

168. UNSC Res. 1162 (1998).

169. UNSC Res. 1156 (1998) and 1171 (1998).

170. UNSC Res. 1181 (1998), 1220 (1999), 1231 (1999), 1245 (1999), 1260 (1999). Later, the Security Council established the UN Mission in Sierra Leone (UNAMSIL): UNSC Res. 1270 (1999), 1289 (2000), 1299 (2000), 1306 (2000), 1313 (2000), 1315 (2000), 1321 (2000), 1334 (2000), 1346 (2001), 1370 (2001), 1385 (2001), 1389 (2002), 1400 (2002), 1436 (2002), 1470 (2003), 1492 (2003) and 1508 (2003). See for an extensive account of the military intervention in Sierra Leone: Bundu, A., Democracy by Force? A Study of International Military Intervention in the Conflict in Sierra Leone from 1991–2000 (Parkland FL, Universal Publishers 2000) pp. 330.Google Scholar

171. ECOWAS, Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-keeping and Security, Lomé, 10 December 1999Google Scholar, available at <http://www.iss.co.za/AF/RegOrg/unity_to_union/pdfs/ecowas/ConflictMecha.pdf>.

172. Ibid., Art. 10(c).

173. Heads of State and Government of the OAU, ‘Declaration on a Framework for an OAU Response to Unconstitutional Changes in Government’, 36th Ordinary Session, Lomé (Togo) 10–12 July 2000Google Scholar, AHG/Decl. 5 (XXXVI).

174. A pro-democratic intervention by ECOWAS remains subject to constraints imposed by the UN Security Council pursuant to Article 103 of the UN Charter. See also Wippman, D., ‘Pro-democratic Intervention in Africa’, Proceedings of the American Society of International Law, (Washigton DC, ASIL 2002) pp. 143–145.Google Scholar

175. Available at <http://www.africa-union.org/rule_prot/PROTOCOL-%20PEACE%20AND%20SECURITY%20COUNCIL%20OF%20THE%20AFRICAN%20UNION.pdf>.

176. Article 3 (f) of the Protocol Relating to the Establishment of a Peace and Security Council.

177. Ibid., Art. 4 (j) of the Protocol.

178. Ibid., Art. 7(g) of the Protocol.

179. General Assembly of the OAS, Inter-American Democratic Charter, Special Session, Lima (Peru), 11 September 2001Google Scholar, available at <http://www.oas.org/main/main.asp?sLang=E&sLink=http://www.oas.org/OASpage/eng/Documents/Democractic_Charter.htm>.

180. Ibid., Art. 20. This article is a formalization of the Santiago Commitment to Democracy and the Renewal of the Inter-American System (OEA/Ser.P./XXI.0.2) (1991).

181. See with respect to the Santiago Commitment: Wippman, loc. cit. n. 148, at p. 323.

182. Document on the Copenhagen Meeting of the Conference on the Human Dimension of the Conference on Security and Co-operation in Europe (CSCE), 29 June 1990, reprinted in ILM (1990) at p. 1305.

183. Ibid., para. 7.

184. See Halberstam, M., ‘The Copenhagen Document: Intervention in Support of Democracy’, 34 Harvard ILJ, (1993) pp. 163–175.Google Scholar

185. See Roth, B.R., ‘The Illegality of Pro-democratic Invasion Pacts’Google Scholar, in Fox and Roth, op. cit. n. 1, at p. 329.

186. Pursuant to Art. 53 of the Vienna Convention on the Law of Treaties, such a peremptory norm ‘can be modified […] by a subsequent norm of general international having the same character.’ The right to democracy is not a peremptory norm and can, thus, not impinge on the right to self-determination. Interestingly, Roth admits that, as the prohibition of genocide and crimes against humanity is a peremptory norm, its enforcement may trump the right to self-determination. However debatable construing a substantive peremptory norm to imply its enforcement might be, Roth's analysis seems to legitimize humanitarian intervention.

187. Ibid., at p. 331.

188. Cf, UNGA Res. 2625 (XXV) (1970): ‘Every state has an inalienable right to choose its political, economic and cultural systems, without interference in any form by another state.’

189. See Roth, loc. cit. n. 185, at p. 335.

190. ICJ, Case Concerning East Timor (Portugal v. Australia), ICJ Rep. (1995) p. 102, para. 29. It goes beyond the scope of this article to address the relation between norms of jus cogens and erga omnes obligations.

191. See the formulation of Art. 1(1) of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, supra n. 5.

192. See e.g., the ‘Declaration on the New International Economic Order’, UNGA Res. 3201 (S-VI), 1974.

193. Western domination over the making of international law would, according to some authors, account for the Western bias of current international law. See Kwakwa, E., ‘Regulating the International Economy: What Role for the state?’, in Byers, M., ed., The Role of Law in International Politics (Oxford, Oxford University Press 2000) pp. 227–246.Google Scholar

194. See Pinto, M.C.W., ‘Democratization of International Relations and its Implications for Development and Application of International Law’, in Al-Nauimi, N. and Meese, R., eds., International Legal Issues Arising under the United Nations Decade of International Law (The Hague, Kluwer Law International 1995) at p. 1260.Google Scholar

195. See Art. 7 Vienna Convention on the Law of Treaties.

196. See Arts. 11–16 Vienna Convention on the Law of Treaties.

197. In Belgium all treaties are, since the fourth reform of the state (1993), submitted to the federal parliament and/or the regional parliamentary assemblies, by virtue of Art. 167, paras. 2 and 3 of the Constitution. In 1831, Belgium was the first country to insert parliamentary approval of treaties into the constitution. See Schindler, D., ‘Völkerrecht und Demokratie’, in Hafner, G., Loibl, G., Rest, A., Sucharipa-Behrmann, L. and Zemanek, K., eds., Liber Amicorum Professor Seidl-Hohenveldern – in Honour of his 80th Birthday (The Hague, Kluwer Law International, 1998) pp. 611–630Google Scholar. It may happen that the executive branch circumvents parliamentary interference by entering into executive agreements.

198. With the possible qualification that it can insist on certain reservations to be made, if of course such reservations are allowed under the treaty.

199. Parliamentary intervention enhances the domestic democratic character of international law-making. Yet, paradoxically, it may run counter to the realization of international democracy. Often, a treaty only takes effect after ratification by a substantial amount of treaty parties. Accordingly, if national parliaments refuse to approve a treaty, it may not take effect. Although states have democratically reached a consensus on an international conference, they remain dependent on the uncertain outcome of a domestic parliamentary debate. See Pinto, loc. cit. n. 194, at pp. 1263–1265.

200. International treaty law does not take domestic democratic concerns of the parties to the treaty into account. When a state bypasses its parliamentary assembly in the treaty-making process, the assembly has no recourse under international law. Indeed, a party to a treaty may not invoke the provisions of its internal law as justification for its failure to perform a treaty (Article 27 of the Vienna Convention on the Law of Treaties). Art. 46 of the Vienna Convention on the Law of Treaties qualifies this rule in that a state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.

201. See Schindler, loc. cit. n. 197, at p. 616. According to Art. 9(2) of the Vienna Convention on the Law of Treaties, a two third majority now suffices to adopt a treaty text.

202. See Pinto, loc. cit. n. 194, at p. 1288.

203. See for instance the recommendations of the Belgian parliamentary working group on globalization (Documents parlementaires, Chamber of Representatives, 2002–2003, DOC 50 2330/003, 1.3).

204. Contra, Paust, J.J., ‘Customary International Law in the United States: Clean and Dirty Laundry’, 40 GYIL (1997) 79Google Scholar. The persistent objector theory would be a myth, as US courts have never resorted to it in order to avoid the application of customary international law in the United States.

205. Pursuant to Art. 53 of the Vienna Convention on the Law of Treaties, treaties cannot derogate from norms of Jus cogens: see supra Section 6.6.

206. See for instance Bradley, C.A. and Goldsmith, J.L., ‘Customary International Law as Federal Common Law: a Critique of the Modern Position’, 110 Harvard LR (1997) pp. 856–857CrossRefGoogle Scholar. However, see the criticism of this view and arguments stressing the relative democratic nature of the customary law-making process in comparison to the treaty-making process, Wouters, J., ‘Customary international law before national courts: Some reflections from a continental legal perspective’, Non-state Actors and International Law (2004) pp. 25–38.Google Scholar

207. See on democratization at the international level: B. Boutros-Ghali, An Agenda for Democratization, paras. 61–115.

208. See Schindler, loc. cit. n. 197, at p. 619.

209. See for criticism: Bello, W., Prospects for Good Global Governance: The View From the South, Report prepared for the Bundestag, Federal Republic of Germany, Focus on the Global South, CUSRI, Chulalongkorn University, Bangkok, 2001Google Scholar, also available at <www.bundestag.de/gremien/welt/gutachten/vg12.pdf>.

210. In spite of the text of Art. 27(3) of the UN Charter, the institutional practice of the Security Council allows for a resolution to be adopted if one or more permanent members abstain.

211. E.g., the Belgian Constitution, which requires a two third majority for taking certain decision, with a simple majority in every linguistic group: Art. 4 (modification or correction of the boundaries of the linguistic regions), Arts. 5, 162 and 166(2) (status of local and provincial governments), and a great number of other articles relating to the communities and the regions (Arts. 117, 118, 121(1), 123, 128, 129(2), 136, 137, 143(3), 167(5), 175, 177 and 178). A constitutional amendment, however, does not require a linguistic majority (Art. 195).

212. See Pinto, loc. cit. n. 194, at p. 1263.

213. Luff, D., Le droit de l'Organization Mondiale du Commerce. Analyse critique (Brussels, Bruylant 2004) pp. 6–7Google Scholar. See also Alvarez, J.E. and Leebron, D.W., ‘Symposium: The Boundaries of the WTO: Linkages’, 96 AJIL (2002) pp. 5–27.Google Scholar

214. Art. XII(1) Marrakesh Agreement Establishing the World Trade Organization, Marrakesh, 15 April 1994.

215. Fox, G., ‘Strengthening the State’, 7 Indiana Journal of Global Legal Studies (1999) p. 63.Google Scholar

216. Atik, J., ‘Democratizing the WTO’, 33 George Washington ILR (2001) at p. 466.Google Scholar

217. There are, however, a few exceptions (Arts. IX(2); IX(3); X; XII(2) of the Marrakesh Agreement on the Establishment of the WTO). In practice, voting never occurs. See <http://www.wto.org/english/thewto_e/whatis_e/tif_e/orgl_e.htm>; <http://www.twnside.org.sg/title/bg13-cn.htm>. Proposals to reduce the consensus rule in the WTO are circulating, because such a rule de facto protects the interests of industrialised countries from a possible alliance of developing countries. See for example the recommendations of the Belgian parliamentary working group on globalization (Document parlementaires, Chamber of Representatives, 2002–2003, DOC 50 2330/003, paras. 3.1.1.4.-3.1.1.5).

218. WTO, WTO Policy Issues for Parliamentarians (Geneva, WTO Publications 2001) p. 14.Google Scholar

219. Atik, loc. cit. n. 216, at p. 469.

220. Ibid.

221. The ‘quad’ (abbreviation for ‘quadrilaterals’) were originally trade policy talks between the US, EC, Japan and Canada. The term is now also applied to the four acting together. See Goode, W., Dictionary of Trade Policy Terms (Cambridge, Cambridge University Press 2003) at p. 287.Google Scholar

222. An example of the importance of the Quad could be seen in the Tokyo Tariff negotiations. Disagreements among the major trading countries on these aspects were one of the reasons why the conclusion of the Tokyo Round was delayed. Industrial tariff negotiations resumed only after the Quad reached and agreement on these issues at Tokyo in July 1993. See Hoda, A., Tariff Negotiations and Renegotiations under the GATT and the WTO. Procedures and Practices (Cambridge, Cambridge University Press 2001) at p. 37.Google Scholar

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224. Sutherland, P. and Sewell, J., ‘Challenges facing the WTO and policies to address global governance’, in Sampson, G.P., ed., The Role of the World Trade Organization in Global Governance (Tokyo, United Nations University Press 2001) at p. 88.Google Scholar

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226. Atik, loc. cit. n. 216, at p. 469.

227. The objective is to help build the necessary institutions and to train officials. Two WTO committees deal specifically with trade and development: the Committee on Trade and Development and the Sub-Committee on Least-Developed Countries. On the occasion of the third Ministerial Conference in Seattle on 1 December 1999, the Agreement establishing the Advisory Centre on WTO Law (‘ACWL’) was signed by a number of WTO Members. It entered into force on 15 July 2001 and has currently thirty-two signatories. The Centre provides legal counselling on WTO law matters to developing-country and economy-in-transition Members of the Centre and all least developed countries free of charge. It also provides legal support throughout dispute settlement proceedings in the WTO at discounted rates for its Members and least developed countries. See Agreement establishing the Advisory Centre on WTO Law, done at Seattle on 30 November 1999, available at <http://www.acwl.ch>.

228. This coalition is called the G20+, with reference to its origin: the G20.

229. The coalition would be comprised of Argentina, Bolivia, Brazil, Chile, China, Cuba, Egypt, India, Indonesia, Mexico, Nigeria, Pakistan, Paraguay, the Philippines, South Africa, Thailand and Venezuela. Costa Rica, Colombia, Ecuador, Guatemala and Peru already left the group. Some of the South-American countries decided to pull out in order not to threaten future bilateral deals with the US. See M. Valente, A strategy meeting for G20+, IPS 9 October 2003.

230. See Howse, R., ‘How to Begin to Think About the “Democratic Deficit” at the WTO’, Draft paper (2002)Google Scholar available at <http://faculty.law.umich.edu/rhowse/Drafts_and_Publications/howse7.pdf>.

231. Mike Moore, After Seattle – The WTO and Developing Countries, Formal Evidence to the International Development Committee of the House of Commons and Remarks to the All Party Parliamentary Group on Overseas Development of the House of Commons, 7 March 2000, available at <http://www.wto.org/english/news_e/spmm_e/spmm26_e.htm>.

232. Petersmann, E.-U., ‘European and International Constitutional Law: Time for Promoting “Cosmopolitan Democracy” in the WTO’ in de Burca, G. and Scott, J., eds., The EU and the WTO: Legal and Constitutional Issues (Oxford, Oxford University Press 2001) at p. 98.Google Scholar

233. See Howse, loc. cit. n. 230, at p. 8.

234. See WTO, Understanding the WTO, 3rd edn., (Geneva, WTO Publications 2003) at p. 18Google Scholar, available on <http://www.wto.org/english/thewto_e/whatis_e/tif_e/understanding_e.pdf>.

235. See Gerhart, P. M., ‘The Two Constitutional Visions of the World Trade Organization’, 24 Univ. Pennsylvania JIEL (2003) at p. 8.Google Scholar

236. See Ostry, S., ‘The World Trading System: In Dire Need of Reform’, 24 Temple International and Comparative Law Journal (2003) at p. 110.Google Scholar

237. European Parliament Resolution on the communication from the Commission to the Council and the European Parliament on the EU approach to the WTO Millennium Round, COM(1999) 331 B C5–0155/1999 B 1999/2149(COS), 18 November 1999, OJ C 189, 7 July 2000, p. 213, para. 74; European Parliament Resolution on the Third Ministerial Conference of the World Trade Organization in Seattle, 15 December 1999, OJ C 296, 18 October 2000, p. 121.

238. Lamy, P., ‘What are the Options After Seattle?’, Speech to European Parliament, 25 January 2000Google Scholar, <http://europa.eu.int/comm/commissioners/lamy/speeches_articles/spla09_en.htm>.

239. See ‘The WTO: The Role of Parliamentarians’, Public Symposium: The Doha Development Agenda and Beyond, Summary Report, 6 May 2002Google Scholar, <http://www.revistainterforum.com/english/articles/050602artprin_en3.html>.

240. See Final Declaration of the Parliamentary Meeting on International Trade, Geneva, 8–9 June 2001, available at <http://www.ipu.org/splz-e/trade01dclr.htm>.

241. See Parliamentary Meeting on the Occasion of the fourth WTO Ministerial Conference in Doha, <http://www.ipu.org/splz-e/doha.htm>.

242. See Cancun Session of the Parliamentary Conference on the WTO, <http://www.ipu.org/splz-e/cancun.htm#post-doha>.

243. M. Moore, After Seattle – The WTO and Developing Countries, Formal Evidence to the International Development Committee of the House of Commons and Remarks to the All Party Parliamentary Group on Overseas Development of the House of Commons, 7 March 2000, available at <http://www.wto.org/english/news_e/spmm_e/spmm26_e.htm>.

244. WT/MIN(01)/DEC/1, 14 November 2001, Available at <http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm>.

245. WT/MIN(03)/20, 14 September 2003, Available at <http://www.wto.org/english/thewto_e/minist_e/min03_e/min03_14sept_e.htm#statement>.

246. European Parliament Resolution on the Fifth Ministerial Conference of the WTO in Cancún, 25 September 2003, B5–0399(2003), para. 20, available at <http://europa.eu.int/comm/trade/issues/newround/doha_da/epr250903_en.htm>.

247. See Neuhold, C., ‘Into the New Millennium: The Evolution of the European Parliament from Consultative Assembly to Co-Legislator’, Eipascope (2000-2001) at p. 3Google Scholar, also available at <http://www.eipa.nl/Eipascope/00/2000-1/2000_1.pdf>.

248. Howse, loc. cit. n. 230, at p. 9.

249. ‘The new de-restriction procedures represent a compromise between developed country Members such as the US, the EC and Canada, on the one hand, and some developing countries, including India and Malaysia, on the other. Industrialised countries had been pushing for automatic de- restriction of all documents, and one developed country source said that the EC was “less than enthusiastic” with the final decision, as it had been significantly watered down from previous proposals. These Members tend to post their own submitted documents on publicly- accessibly government websites. Some developing countries were less comfortable with releasing documents related to negotiating processes, saying they preferred to maintain the right to give their capitals time to review papers before circulation.’ See at <http://www.ictsd.org/we-ekly/02-05-15/storyl.htm>.

250. See WTO document WT/GC/W/464/Rev. 1. Where a delegation specifically requests that a document produced by the Secretariat be restricting, the waiting time for de-restriction has been reduced from eight months to 6–8 weeks. Under the new provisions, documents produced by the Secretariat can be restricted by the issuing body and will be de-restricted 60 days after the date of circulation. Members retain the right to restrict their own submitted documents, though they must renew their restriction requests monthly after an initial period of 60 days or until first consideration by the relevant body.

251. See Esty, D.C., ‘Non-Governmental Organizations at the World Trade Organization: Co-operation, Competition or Exclusion’, 1 Journal of International Economic Law (1998) at pp. 125–126CrossRefGoogle Scholar, available at <http://www3.oup.co.uk/jielaw/hdb/Volume_01/Issue_01/pdf/010123.pdf>.

252. Ibid., at p. 127.

253. Ibid., at p. 136.

254. See Hudec, R.E., ‘“Circumventing” Democracy: The Political Morality of Trade Negotiations’, 25 NY Univ. JIL & Pol. (1993) at p. 312Google Scholar, cited in Atik, loc. cit. n. 216, at p. 459.

255. Art. V(2) of the Marrakesh Agreement Establishing the World Trade Organization, Marrakesh, 15 April 1994.

256. Guidelines for Arrangements on Relations With Non-Governmental Organizations adopted on 18 July 1996, para. 4 (WT/L/162, 23 July 1996).

257. See at <http://www.wto.org/english/thewto_e/minist_e/min01_e/min01_ngo_activ_e.htm>.

258. On the first conference in Singapore in 1996, only a modest 108 NGOs attended the conference. On the contrary in 2003, the request for accreditation for the Canciin conference was so large that the WTO decided to seriously limit access of NGOs. NGOs could send by mail a request for registration indicating how they are concerned with matters related to those in the WTO. Selected NGOs could register three representatives. Of these three, only one was allowed at the convention centre at a given time. Finally, 795 NGOs participated in the conference. See WTO, Annual Report 2004 (Geneva, WTO Publications 2004) p. 76Google Scholar, available on <http://www.wto.org/english/res_e/booksp_e/anrep_e/anrep04_e.pdf>.

259. For a recent discussion, see McRae, D., ‘What is the Future of WTO Dispute Settlement?’, 7 Journal of International Economic Law (2004) pp. 3–21.CrossRefGoogle Scholar

260. See Stephan, P.B., ‘The New International Law: Legitimacy, Accountability, Authority and Freedom in the New Global Order’, 70 Univ. Colorado LR (1999) at pp. 1559–1560.Google Scholar

261. See Mollers, C., ‘Steps to a Tripartite Theory of Multi-level-Government’, Jean Monnet Working Paper 5/03, New York University School of Law (2003) p. 45.Google Scholar

262. See Den Bossche, P. Van, ‘The Doha Development Round Negotiations on the Dispute Settlement Understanding’, Working Paper Nr. 47, Institute for International Law, Katholieke Universiteit Leuven, November 2003, 21Google Scholar, available at <http://www.law.kuleuven.ac.be/iir/nl/wp/WP47e.pdf>.

263. Appellate Body report on United States – Import prohibition of certain shrimp and shrimp products, WT/DS58/AB/R, 12 October 1998.

264. Appellate Body report on European Communities – Measures concerning meat and meat products (Hormones), WT/DS26/AB/R & WT/DS48/AB/R, 13 February 1998.

265. Contribution of the United States to the Improvement of the Dispute Settlement Understanding of the WTO Related to Transparency, 9 August 2000, TN/DS/W/13, available at <http://www.ustr.gov/enforcement/2002-08-09-transparency.pdf>. See also <http://www.ustr.gov/releases/2002/08/02-82.htm>.

266. Negotiations on the Dispute Settlement Understanding, Proposal by the African Group, 9 September 2002, TN/DS/W/15, available at <http://www.law.georgetown.edu/iiel/research/projects/dsureview/documents/W15.doc>.

267. Ibid., para. 12.

268. Proposal on DSU by India et. al., 7 October 2002, TN/DS/W/18, 2.

269. Appellate Body report on United States – Import prohibition of certain shrimp and shrimp products, WT/DS58/AB/R, 12 October 1998.

270. Appellate Body Report on United States – Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismouth Carbon Steel Products Originating in the United Kingdom, WTO Doc. WT/DS138/AB/R, 10 May 2000.

271. Appellate Body report on European Communities – Measures affecting asbestos and products containing asbestos WT/DS135AB//R, 12 March 2001. Document inviting briefs: WT/DS135/9, 8 November 2000.

272. Some WTO members had serious concerns about the initiative of the Appellate Body and requested an extraordinary meeting of the WTO General Council. This meeting took place on 22 November 2000. However, the United States ‘believed that the Appellate Body had acted appropriately’ (Minutes of the Meeting of the General Council on 22 November 2000, WT/GC/M/60, 23 January 2001, para. 74), whereas the EC stated that there was a need for rule-making on this issue, and that ‘if the legislative fell short in legislating, the judiciary arm had the tendency to fill the gap’ (Minutes of the Meeting, para. 96).

273. Minutes of the Meeting, para. 70.

274. For a critical analysis see Mavroidis, P., ‘Amicus Curiae Briefs Before the WTO: Much Ado About Nothing’, Jean Monnet Working Paper 2/01, New York University School of Law, 2001Google Scholar, available at <http://www.jeanmonnetprogram.org/papers/01/010201.html>. See also Ala'I, P., ‘Judicial Lobbying at the WTO: the debate over the Use of Amicus Curiae Briefs and the US Experience’, 24 Fordham ILJ (2000) pp. 62–94Google Scholar and Antoniadis, A., ‘Enhanced Third Party Rights in the WTO Dispute Settlement Understanding’, 29 Legal Issues of Economic Integration (2002) pp. 285–304.CrossRefGoogle Scholar

275. Mavroidis, loc. cit. n. 274, at pp. 10 and 12.

276. According to Mavroidis, ‘many friends of the court are rather friends of themselves. They do not care about systemic issues, they do not care for the truth. They want to sell a message.’ Ibid., p. 12.

277. Supra.

278. Minutes of the Meeting of the General Council on 22 November 2000, WTO Doc. WT/GC/M/60, 23 January 2001, para. 96.

279. See Contribution of the European Communities and its Member states to Improvement of the WTO Dispute Settlement, 13 March 2002, TN/DS/W/1, 7. See the remarks on the EC's proposal by India: Proposals Relative to the Improvement of the Dispute Settlement Understanding – Communication from India, 29 April 2002, TN/DS/W/5.

280. See Contribution of the United States to the Improvement of the Dispute Settlement Understanding of the WTO Related to Transparency, 9 August 2000, TN/DS/W/13.

281. Special Session of the Dispute Settlement Body, Report by the Chairman, 6 June 2003, TN/DS/9; the text itself can be found as Job (03)/91.

282. Weiler, J. J., The Constitution of Europe (Cambridge, Cambridge University Press 1999) at pp. 80–81.Google Scholar

283. See Gerhart, loc. cit. n. 235, at p. 6.

284. Esty talks about the ‘WTO's need for “connectedness” to people around the world’. See Esty, loc. cit. n. 251, at p. 131.

285. WT/MIN(01)/DEC/1, 14 November 2001, para. 2, Available at <http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm>.

286. E.g., the abolition of farming subsidies or the complete opening of the service sector.

287. Gerhart recognises a ‘democratic paradox of globalization’. According to him there is an undeniable need to move decision-making authority to higher levels. ‘In an interconnected world, the democratic deficit that occurs when decision-making is moved further from the people is offset by a democratic deficit that would occur if we fail to move decision-making authority to higher levels. On the first side of the paradox, we have the problem of making democratic participation harder by removing it, for example from Washington to Geneva; the second side of the democratic paradox recognises that when the policy made in one nation adversely affects people in other nations, those adversely affected people need to have some meaningful way to participate in shaping policy.’ Gerhart, loc. cit. n. 235, at pp. 9–10.

288. See Franck, in Fox and Roth, loc. cit. n. 42, at p. 45.

289. E.g., the Carter Center for Democracy: <http://www.centerfordemocracy.org/elect_monitor.html>.

290. See for some grassroots organizations promoting democracy in Iraq: <http://www.iraqfoundation.org>, <http://www.iraqifd.org>, <http://www.defenddemocracy.org>, <http://www.iraq-democracy.org>.

291. Cf., Ben Achour, loc. cit. n. 25, at p. 917; Wheatley, loc. cit. n. 89, at pp. 236–239; Fox, loc. cit. n. 18, at pp. 98–99. See also Fukuyama's definition of democracy: ‘A country is democratic if it grants its people the right to choose their own government through periodic, secret-ballot, multiparty elections, on the basis of universal and equal adult suffrage.’ (Fukuyama, op. cit. n. 2, at p. 48) and Franck's definition of democracy: ‘[O]pen multiparty, secret-ballot elections with a universal franchise.’ (Franck, loc. cit. n. 3, at p. 47).

292. See also Barnes, S.H., ‘The Contribution of Democracy to Rebuilding Post-conflict Societies’, 95 AJIL (2001) pp. 86–101.CrossRefGoogle Scholar