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The Dual Lives of “The Emerging Right to Democratic Governance”

  • Gregory H. Fox (a1) and Brad R. Roth (a2)
Extract

Thomas M. Franck's The Emerging Right to Democratic Governance has lived a dual existence. On the one hand, it is almost universally cited as having brought international lawyers into the freewheeling debate of the early 1990s among scholars of international relations, comparative politics, and political theory about the so-called “Third Wave” of democratization. On the other hand, the article is not infrequently described as a legal avatar of post-Cold War Western triumphalism, often sharing a sentence or a footnote with Francis Fukuyama's The End of History and the Last Man. From the standpoint of the two authors of this essay—one a long-time defender of Franck's thesis and the other a long-time critic—both of these broad-brush characterizations of the article contain elements of truth, but both are also woefully incomplete.

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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 M. Franck, The Emerging Right to Democratic Governance, 86 AJIL 46 (1992).

2 See, e.g., Samuel Huntington, The Third Wave: Democratization in the Late Twentieth Century (1991); see generally Gregory H. Fox, The Right to Political Participation in International Law, 17 Yale J. Int'l L. 539, 542 n.12 (1992) (reviewing the already extensive political science literature on transnational democracy issues).

3 See Democratic Governance and International Law (Gregory H. Fox & Brad R. Roth eds., 2000) (containing various contributions reflecting the controversy).

4 A major exception was the suspension of Greece from the Council of Europe following the 1967 coup d'etat. See The Greek Case, 12 Y.B. Eur. Conv. Hum. Rts. (1969).

5 A rare and telling exception was Henry J. Steiner, Political Participation as a Human Right, 1 Harv. Hum. Rts. Y.B. 77 (1988) (“For a right regarded as foundational, political participation suffers from serious infirmities. The norms defining it are either vague or, when explicit, bear sharply disputed meanings.”).

6 Universal Declaration of Human Rights, G.A. Res. 217 art. 21(3) (Dec. 10, 1948).

8 Thereafter, international electoral assistance from all quarters exploded, becoming a constant in both newly democratizing states and in some stable democracies. See Christina Binder, Two Decades of International Electoral Support: Challenges and Added Value, 13 Max Planck Y.B. U.N.L. 213 (2009).

10 G.A. Res. 45/150 (Dec. 18, 1990) (129-8-9) (on “Enhancing the effectiveness of the principle of periodic and genuine elections”); but see G.A. Res. 45/151 (Dec. 18, 1990) (111-29-11) (on “Respect for the principle of national sovereignty and non-interference in the internal affairs of States in their electoral processes”).

11 Franck, supra note 1, at 46.

12 See, e.g., Brad R. Roth, Evaluating Democratic Progress: A Normative Theoretical Perspective, 9 Ethics & Int'l Aff. 55 (1995).

13 See, e.g., Gregory H. Fox, Humanitarian Occupation 157-62 (2008).

14 See David Landau, Democratic Erosion and Constitution-Making Moments: The Role of International Law, 2 U.C. Irvine J. Int'l, Transnat'l & Comp. L. 87, 99-108 (2017).

15 See Samuel Issacharoff, Fragile Democracies, 120 Harv. L. Rev. 1405 (2007); Gregory H. Fox & Georg Nolte, Intolerant Democracies, 36 Harv. Int'l L.J. 1 (1995); Brad R. Roth, Democratic Intolerance: Observations on Fox and Nolte, 37 Harv. Int'l L.J. 235 (1996); Martti Koskenniemi, Whose Intolerance, Which Democracy?, 37 Harv. Int'l L.J. 231 (1996); Gur Bligh, Defending Democracy: A New Understanding of the Party-Banning Phenomenon, 46 Vand. J. Transnat'l L. 1321 (2013).

16 See generally Brad R. Roth, Governmental Illegitimacy In International Law (1999).

17 Franck, supra note 1, at 47.

18 W. Michael Reisman, Sovereignty and Human Rights in Contemporary International Law, 84 AJIL 866, 871 (1990).

21 See, e.g., Gregory H. Fox, International Law and the Entitlement to Democracy After War, 9 Global Gov. 179 (2003).

22 See David Kennedy, Tom Franck and the Manhattan School, 35 N.Y.U. J. Int'l L. & Pol. 397 (2003).

23 Thomas M. Franck, The Power of Legitimacy Among Nations (1990).

24 Franck, supra note 1, at 90.

25 Id. at 54.

26 Id. at 84.

27 Id. at 84 (emphasis in original).

28 Id. at 85.

29 See the discussions of these instruments in Enrique Lagos & Timothy D. Rudy, In Defense of Democracy, 35 U. Miami Inter-Am. L. Rev. 283 (2004); Patrick J. Glen, Institutionalizing Democracy in Africa: A Comment on the African Charter on Democracy, Elections and Governance, 5 Afr. J. Legal Stud. 119 (2012); Eliav Leiblich, Intervention and Consent: Consensual Forcible Interventions in Internal Armed Conflicts as International Agreements, 29 B.U. Int'l L. J. 337 (2011) (discussing the Economic Community of West African States).

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