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Democracy's Demands

  • Roberto Gargarella (a1)
Extract

In a classic article published in 1992, Thomas Franck wrote of an “emerging right to democratic governance” in international law. In his view, such a right implied that the acceptance of a government by other states in the international arena depended on whether the government ruled with the consent of its own people. In a later piece, published in 2000, Franck elaborated, stating that

[w]hile democracy has long been a right of people in some nations, enshrined in their constitutions and traditions and enforced by their judiciary and police, this has not been true universally. That democracy is becoming an entitlement in international law and process is due in part to the very recent political reality of a burgeoning pro-democracy movement within the States that constitute the world community.

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Copyright
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 Thomas Franck, The Emerging Right to Democratic Governance, 86 AJIL 46 (1992).

2 Thomas Franck, Legitimacy and the Democratic Entitlement, in Democratic Governance and International Law 27 (Gregory Fox & Brad Roth eds., 2002).

3 See generally Democratic Governance and International Law (Gregory Fox & Brad Roth eds., 2002).

4 Roberto Gargarella, Latin American Constitutionalism 1810-2010 (2013).

5 See, e.g., Charles Taylor, Cross-Purposes: The Liberal-Communitarian Debate, in Liberalism and the Moral Life (Nancy Rosenblum ed., 1989).

6 Carlos Santiago Nino, The Constitution of Deliberative Democracy (1993).

7 Franck, supra note 1, at 47.

8 Id. at 48 (emphasis added).

9 Id.

10 Gargarella, supra note 4, at 5-6.

11 See, e.g., Jeremy Waldron, Is the Rule of Law an Essentially Contested Concept?, 21 Law & Phil. 137 (2002).

12 See, e.g., Jürgen Habermas, Between Facts and Norms (William Rehg trans., MIT Press 1996) (1992); Deliberative Democracy (Jon Elster ed., 1998).

13 Susan Marks, International Law, Democracy and the End of History, in Fox & Roth, supra note 3, at 532, 558-59.

14 International Labour Organization, Indigenous and Tribal Peoples Convention, C169, June 27, 1989. The right to prior consultation has been incorporated into numerous Latin American constitutions.

15 See, e.g., César Rodríguez Garavito, Ethnicity.gov: Global Governance, Indigenous Peoples, and the Right to Prior Consultation in Social Minefields, 18 Ind. J. Global Leg. Stud. 263 (2011).

16 Gelman v. Uruguay, Merits and Reparations, Judgment, Inter-Am. Ct. H. R. (ser. C) No. 221 (Feb. 24, 2011). For an extensive discussion, see Roberto Gargarella, Democracy and Rights in Gelman v. Uruguay, 109 AJIL Unbound 115 (2015).

17 Uruguay conducted the first popular consultation in April 1989 by referendum. The second, in 2009, involved a general plebiscite, which put to popular vote a projected constitutional reform that would have nullified part of the Expiry Law.

18 Gelman, supra note 16, at paras. 229, 238.

19 Id.

20 Jeremy Waldron, Law and Disagreement (1999).

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AJIL Unbound
  • ISSN: -
  • EISSN: 2398-7723
  • URL: /core/journals/american-journal-of-international-law
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