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“Listen to Them and Give Them a King”: Self-Determination, Democracy, and the Proportionality Principle

  • Giordana Campagna and Raffael N. Fasel
Abstract

Is a right to democracy compatible with the right to self-determination? According to some, the two rights are incompatible because a right to democracy would prevent a people from choosing not to live in a democracy. As a result, these Incompatibilists argue, there can be no right to democracy. We argue that the Incompatibilists are right in that the two rights can indeed conflict. They are wrong, however, in that such conflicts do not preclude the mutual existence of both rights. To show why, we distinguish between two elements of self-determination and argue that the right to self-determination and the right to democracy each protect a different element. Arguing that both rights are best understood as principles that can be balanced using the proportionality principle, we reveal how, depending on the concrete circumstances, one right can outweigh the other without ceasing to exist, and thereby prove the Incompatibilists wrong.

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Copyright
Footnotes
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We would like to thank Adam Perry, Daniel Moeckli, John Adenitire, Ya Lan Chang, and Yukinori Iwaki for helpful comments on earlier drafts of this paper.

Footnotes
References
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1. UN General Assembly, Promotion of a democratic and equitable international order, Note by the Secretary-General, A/69/272 (2014) at § 32.

2. Thomas Franck, “The Emerging Right to Democratic Governance” (1992) 86 AJIL 46 at 52.

3. “President Wilson’s Address to Congress, Analyzing German and Austrian Peace Utterances” (11 February 1918), online: http://www.gwpda.org/1918/wilpeace.html.

4. Ibid.

5. See, e.g., Cohen, Joshua, “Is There a Human Right to Democracy?” in Sypnowich, Christine, ed, The Egalitarian Conscience: Essays in Honour of G.A. Cohen (Oxford University Press, 2006) 226; Reidy, David, “On the Human Right to Democracy: Searching for Sense Without Stilts” (2012) 43:2 J Social Philosophy 177; Lister, Matthew, “There is No Human Right to Democracy: But May We Promote It Anyway?” (2012) 48:2 Stan J Int’l L 257.

6. There are, strictly speaking, three theses here. First, that the right to democracy and the right to self-determination are incompatible; second, that there is no right to democracy; and, third, that there is no right to democracy because the two rights are incompatible. For reasons of simplicity, we will be working with the less complex thesis set out above.

7. 1 Samuel 8: 11-17.

8. 1 Samuel 8: 22.

9. Article 1(1) International Covenant on Economic, Social and Cultural Rights; Article 1(1) International Covenant on Civil and Political Rights.

10. Waldron, Jeremy, “Two Conceptions of Self-Determination” in Besson, Samantha & Tasioulas, John, eds, The Philosophy of International Law (Oxford University Press, 2010) 397 at 397.

11. Plato, Republic, Book VIII.

12. Aristotle, Politics, Book III at Chapter 11.

13. Thomas Franck, “The Emerging Right to Democratic Governance” (1992) 86:1 AJIL 46 at 47.

14. See also David Miller, Is there a human right to democracy? in CSSJ Working Papers Series, 7 (2015) (noting similarly that “some features of democracy, in the wider sense, are themselves human rights”, citing freedom of speech, freedom of association, and procedural rights as examples).

15. See, e.g., Gregory Fox, Democracy, right to, international protection in Max Planck Encyclopedia of Public International Law, online: http://opil.ouplaw.com/home/EPIL. See however also White, Nigel & Abass, Ademola, “Countermeasures and Sanctions” in Evans, Malcolm, ed, International Law, 4th ed (Oxford University Press, 2014) 537 at 549 (arguing that there is insufficient state practice and opinio juris to substantiate the claim that the right to democracy has become part of customary international law).

16. See Tomuschat, Christian, “Democracy and the Rule of Law” in Shelton, Dinah, ed, The Oxford Handbook of International Human Rights Law (Oxford University Press, 2013) 469 at 482.

17. Miller, supra note 14 at 6.

18. Note that in his analysis, Miller focuses on the third element of the right to democracy which he thinks does not overlap with other human rights. It is unclear from his article, however, whether this focus would bring him at odds with our working account of the right to democracy.

19. See, e.g., Thomas Christiano, “An Instrumental Argument for a Human Right to Democracy” (2011) 39:2 Philosophy & Public Affairs 142 at 143 (arguing that democracies are “normally reliable protectors of certain very urgent and widely accepted human rights”, while “non-democracies and partial democracies reliably fail to protect these rights”). See also ibid 148-54.

20. See for instance Lister, supra note 5 at 259-69.

21. John Stuart Mill, On Liberty (Longman, Roberts & Green Co, 1869) at Chapter V, para 11; for an informative discussion of Mill’s argument on slavery, see David Archard, “Freedom Not to be Free: The Case of the Slavery Contract in J. S. Mill’s On Liberty” (1990) 40 Philosophical Quarterly at 453.

22. Cohen, supra note 5 at 234.

23. Cf Christiano, Thomas, “Self-Determination and the Human Right to Democracy” in Cruft, Rowan, Liao, S Matthew & Renzo, Massimo, eds, Philosophical Foundations of Human Rights (Oxford University Press, 2015) 459 at 472–76.

24. See supra Section 1.B at 5.

25. See supra Section 1.A at 3.

26. Cohen, supra note 5.

27. Reidy, supra note 5.

28. Lister, supra note 5.

29. Cohen, supra note 5 at 241.

30. Lister, supra note 5 at 263.

31. Cohen, supra note 5 at 234.

32. Frederick Schauer, “The Perils of Panglossian Constitutionalism”, HLA Hart Memorial Lecture, University of Oxford (9 May 2017).

33. Franck, supra note 13 at 52.

34. Cohen, supra note 5 at 233.

35. Pablo Gilabert, “Is There a Human Right to Democracy? A Response to Joshua Cohen” (2012) 1:2 Revista Latinoamericana de Filosofía Política 1 at 10-11.

36. Cohen, supra note 5 at 233.

37. Ibid at 245.

38. Legally, the only requirement pertaining to the method of exercising the right to self-determination is that “the free and genuine expression of the will and wishes of the people concerned” be reflected: Cassese, Antonio, Self-Determination of Peoples: A Legal Reappraisal (Cambridge University Press, 1995) at 131.

39. Thomas Christiano, “Political Equality” (1990) 32 Nomos 151 at 153.

40. One could be tempted to think that because it is a people that chooses to live in a democracy, the right to democracy is a group right rather than an individual right. This would be to confuse things, however. A people’s choice to live in a democratic system is an exercise of its right to self-determination, not the right to democracy. With the choice of a democratic system, a people simply actualizes individuals’ rights to democracy that have been there all along.

41. It may be objected here that for a people who chooses not to live in a democracy, political equality would not be valuable. Due to lack of space, an account of the meta-ethical status of the value of political equality cannot be given here, which is why we will be working under the assumption that this value is sufficiently objective so as to be valuable also for a people who chooses not to live in a democracy.

42. Cohen, supra note 5 at 234.

43. Dworkin, Ronald, Taking Rights Seriously (Harvard University Press, 2013) at 3845; see for a concise account of Dworkin’s challenge to Hart (and of how Hart and his followers respond to said challenge): Scott J Shapiro, The Hart-Dworkin Debate: A Short Guide for the Perplexed in Public Law and Legal Theory Working Paper Series (2007), online: http://ssrn.com/abstract=968657; Hart, in the Postscript to the Concept of Law, later agrees that it was a ‘defect of this book that principles are touched upon only in passing.’ See HLA Hart, The Concept of Law, 3rd ed (Oxford University Press, 2012) at 259.

44. Dworkin, supra note 43 at 40.

45. Ibid at 38-43.

46. Raz, Joseph, “Legal Principles and the Limits of Law” (1971) 81:5 Yale LJ 823 at 836–37.

47. Ibid at 841.

48. Alexy, Robert, A Theory of Constitutional Rights (Oxford University Press, 2010) at 57.

49. Ibid at 47-48.

50. Ibid at 57.

51. Ibid at 47.

52. Raz, supra note 46 at 834.

53. Article 1(1) International Covenant on Economic, Social and Cultural Rights; Article 1(1) International Covenant on Civil and Political Rights.

54. To be sure, Alexy’s account of how conflicts between principles are to be resolved diverges to some extent from Dworkin’s and Raz’s accounts. However, we believe that there is sufficient overlap between the three authors to be able to carry on our analysis by drawing on Alexy.

55. Alexy, supra note 48 at 50.

56. Dworkin, supra note 43 at 94.

57. Alexy, supra note 48 at 51.

58. Ibid at 52 [emphases in original].

59. Ibid at 66.

60. Ibid at 67-68.

61. Robert Alexy, “Balancing, Constitutional Review, and Representation” (2005) 3 Int’l J Const L 572 at 572.

62. Alexy, supra note 48 at 102.

63. Alexy, supra note 61 at 574.

64. Ibid at 575.

65. Ibid at 575-76.

66. Kai Möller, “Proportionality: Challenging the Critics” (2012) 10 Int’l J Const L 709 at 709.

67. See, e.g., Nigel E Simmonds, “Constitutional Rights and the Rule of Law” (2016) Analisi e diritto 251 at 251 (2016); Webber, Grégoire, “On the Loss of Rights” in Huscroft, Grant, Miller, Bradley W & Webber, Grégoire, eds, Proportionality and the Rule of Law: Rights, Justification, Reasoning (Cambridge University Press, 2014) 123 at 132 (arguing that rights are “regularly infringed” and “reduced to defeasible premises in reasoning about proportionality”).

68. See for a differentiated view, e.g., Endicott, Timothy, “Proportionality and Incommensurability” in Huscroft, Grant, Miller, Bradley W & Webber, Grégoire, eds, Proportionality and the Rule of Law: Rights, Justification, Reasoning (Cambridge University Press, 2014) 311. See on the incommensurability objection also Francisco J Urbina, “A Critique of Proportionality” (2012) 57 Am J Juris 49 at 54-57, with further references.

69. See Möller, supra note 66 at 709 (rebutting some of the often-made criticisms).

70. Dieter Grimm, “Proportionality in Canadian and German Constitutional Jurisprudence” (2007) 57 UTLJ 383 at 384.

71. Ibid.

72. Rawls, John, The Law of Peoples (Harvard University Press, 1999) at 64.

73. Note that the term “basic human rights” here is used in Cohen’s minimalist sense, which is similar to Rawls’s sense. According to their understanding, basic human rights do not include such things as a right to non-discrimination.

74. In contrast to Karthagos, however, Maurice Bishop seemed to be quite supportive of grassroots democracy: Zunes, Stephen, “The US Invasion of Grenada”, Global Policy Forum (2003), online: https://www.globalpolicy.org/component/content/article/155/25966.html.

75. Ibid.

76. See ibid.

77. “Full Circle in Grenada”, Washington Post (5 December 1984) A20 (noting that one of President Reagan’s promises “was to return to Grenada the opportunity to determine its own future democratically”).

78. Miller, supra note 14 at 3.

79. Christiano, supra note 19 at 148-54.

80. Some readers may of course disagree with our assessment of the degree of detriment to the first and the importance of the second right and our corresponding assignment of values 4 and 1, respectively. Determining the weights of the rights at stake is certainly not an exact science, and some disagreement as to which values should be assigned will be inevitable. However, while these disagreements need to be taken seriously, they do not imply that determining the exact weights is a matter of “anything goes” (see on this in particular Möller, supra note 66 at 727-30). More importantly, if one disagrees about the weight of the rights involved, one has already accepted the premise that the circumstances of the particular case will determine the outcome of the proportionality test.

81. See Physicians for Human Rights, The Taliban’s War on Women: A Health and Human Rights Crisis in Afghanistan (Boston/Washington, DC, 1998).

82. Strauss, Haley, “United States’ Strategy in Afghanistan from 2001 to Today” (2012) 5 Pepperdine Policy Rev 1.

83. Independent Election Commission of Afghanistan, “Afghanistan Presidential Election Results 2004, Turnout by Province” (4 November 2004), online: http://www.iec.org.af/public_htmlElection%20Results%20Website/english/english.htm.

84. The example is similar at least if we grant, for the sake of argument, that the will of the rebels cannot be equated with the will of the Haitian people as a whole.

85. Human Rights Watch, “World Report 1994, Haiti, Human Rights Developments”, online: https://www.hrw.org/reports/1994/WR94/Americas-06.htm.

86. Corten, Olivier, The Law Against War: The Prohibition on the Use of Force in Contemporary International Law (Hart, 2012) at 284–85.

We would like to thank Adam Perry, Daniel Moeckli, John Adenitire, Ya Lan Chang, and Yukinori Iwaki for helpful comments on earlier drafts of this paper.

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