In what now seems like a different world, Thomas Franck published an article in the American Journal of International Law defending an “emerging right to democratic governance.”Footnote 1 The year was 1992. The post-Soviet revolutions had startled the world, following equally stunning democratization drives in Latin America and Southern Europe. Democracy seemed the inevitable endpoint of human civilization, the “end of history”Footnote 2 as it was called then. If all newly freed peoples demanded democracy as soon as they had a chance to choose their form of government, an emerging right to democratic governance could both reinforce their choices and pull along the laggards with the moral force of international law.Footnote 3
Franck's article launched a huge debate that has percolated through international law scholarship ever since. The assertion of a right to democratic governance was praised at the time by advocates of universal human rights and those who argued that international law recognized people rather than only states as sovereign,Footnote 4 as well as by those who observed the same hopeful shoots poking through the ground of international law that Franck did.Footnote 5 It was attacked by pragmatists who pointed to the long-standing international law principle of non-interference in the domestic politics of statesFootnote 6 and also by international law pluralists who argued that finding a mandate in international law to free populations from repressive governments carried both an unwarranted whiff of civilizational superiority and an incitement to war.Footnote 7
Fast forward to our present moment and democracy is clearly in trouble world-wide.Footnote 8 The argument that there is an emerging global consensus over the value of democracy as an empirical matter therefore seems strained at best.Footnote 9 But should we then say that history has solved our academic debate and that the right to democratic governance is dead, now that fewer and fewer governments are robustly democratic? Or should we stand by the fact that the international law resources that Franck and others used to argue for a right to democratic governance are still there, and more have been added since they last wrote?
Of course, the context has shifted so that now even states with long democratic histories are going a bit wobbly on democracy. We are, after all, meeting in Washington, D.C. where the national scars left by the January 6th insurrection stand as evidence that electoral losers may not accept their defeats even in democracies that once thought of themselves as stable.Footnote 10 But, as I will argue today, the evidence of democratic decay all around us is not a reason to abandon the project of developing and deploying international law to support democratic governments. Instead, the democratic recession gives us an opportunity to reconsider how a growing set of international law resources may be used to restore ill democracies to good health. Grotius himself, for whom democracy was barely imaginable, believed that:
a people can select the form of government which it wishes; and the extent of its legal right in the matter is not to be measured by the superior excellence of this or that form of government, in regard to which different men hold different views, but by its free choice.Footnote 11
As a pioneer of international law, Grotius shows us that forms of governments freely chosen by their people have long had pride of place in international law—and so the emerging right to democratic governance may have even deeper roots than we thought.
Today I will argue that the right to democratic governance is now bolstered by the development of many new compatible doctrines, so that international law's support for democratic governance has become even wider and deeper since Franck wrote. In addition, while state recognition in international law does not yet depend on the form of government a state presently has, the absence of democratic government bears on the legitimacy of the state in question in the eyes of other democratic states and may even now provide a justification for sanctions. These and subsequent developments demonstrate that international law still provides immensely helpful resources for defending democracy in the places where it is under attack and also provides a helpful framework within which those committed to liberal, constitutional and democratic government can reverse democratic backsliding. Perhaps most crucially, international law—both hard and soft—can help democrats within backsliding countries find their way back to constitutional government by providing concrete guidance for how to replace autocratic and abusive law with democracy-honoring law as a way of signaling respect for the rule of law.
In the context of democratic backsliding, then, I will not press the case for the right to democratic governance as a justification for intervention by democratic states into non-democracies, as Franck's critics may have believed him to have implied. Instead, I will argue that international law can be used by those committed to democracy, human rights, and the rule of law within states both to prevent their national institutions from falling victim to anti-democratic forces in the first place and to free damaged national institutions from autocratic capture once autocrats have locked in their power by law.
In Part I, I will recall the international law resources available to democratic leaders when the transition in post-communist Europe took place, just before Tom Franck's article was published. In Part II, I will consider how international legal resources expanded to meet Tom Franck's challenge so that his tentative claims turned out in the end to have been vindicated by international law practice. In Part III, I will show how the current wave of democratic backsliding has undermined fundamental principles of constitutionalism, human rights and the rule of law despite the growing international law support for democracy. I will argue that it is precisely because international law practice supports democracies over autocracies that the new autocrats hide their moves behind a veil of democracy.
Even as state practice has undermined the solidity of democracy, however, international law has kept developing in ways that provide additional support. In Part IV, I explore the new international law resources that have been developed over the last several decades to defend democratic institutions, accelerating in just the last few years particularly in the regional human rights courts. In Part V, I build on this new international legal framework, and show how domestic democrats now have a much richer international law environment to use in rebuilding their damaged democracies at home so that they can indeed now restore democracy through international law.
I. Back to the Future: Revisiting the Post-Communist Transitions
In 1989, the self-appointed political opposition in Eastern Europe called on the communist parties that had dominated their Soviet “satellite states” to negotiate a change in regime. The National Roundtables that started in Poland, spread to Hungary and ultimately included East Germany, Czechoslovakia and Bulgaria,Footnote 12 had modest goals. They sought to establish a framework for multiparty elections by drafting new election laws, protecting free speech rights to allow robust political campaigns, allowing new political parties to form under a newly expanded freedom of association, and restructuring the national parliaments to receive newly elected members who would actually represent constituents.Footnote 13 Constitutional change was in the air, but for most of the Roundtables, writing a new constitution was not considered urgent or even legitimate.Footnote 14 The goal was to get to elections first, then constitutions would follow when they could be properly constituted by democratic governments exercising their constituent powers. Except in Hungary.Footnote 15
Unbeknownst to the Hungarian opposition that had demanded negotiations with the communist party, the communist justice ministry had in fact been preparing a new constitution since early 1988.Footnote 16 The justice ministry team had not convinced the party leadership to go along with constitutional reform, but the establishment of the Roundtable softened the leadership's views. As the Roundtable proceeded, party leaders realized that if change were going to happen, they should guide this change to a soft landing for themselves.
The opposition felt that they were not empowered to agree on a new constitution because they themselves were not politically legitimate. After all, to be a dissident meant either declaring oneself to be in opposition or, worse yet, having the government label you as such. Neither of these processes involved any democratic selection or accountability to a larger public. As the dissidents themselves were acutely aware, they did not represent anyone in particular except themselves and their friends. How could they agree to constitutional transformation?
Of course, getting to everyone's more modest goal of organizing multiparty elections required some constitutional change. The political committee of the Hungarian Roundtable and its various subcommittees were tasked with producing the new legal infrastructure for competitive elections.Footnote 17 As they worked on this charge, their task slowly shifted. A member of the justice ministry team—still committed to using the Roundtable as an opportunity for a new constitution—suggested an apparently harmless modification of their mandate. Let's just cross out all the clauses of the constitution that we know will be eliminated when Soviet rule is over, he suggested.Footnote 18 The opposition members of the committee agreed because surely no one could fault them for getting rid of objectionable and clearly undemocratic provisions of the old text. So, out went the clause about the leading role of the communist party. Out went the Council of Ministers, which was the institution through which the party had exercised its control over the government. Out went one clause after another, until the drafting team found that there was precious little left.
What then? A justice ministry representative suggested that the committee add to this denuded old constitution something totally uncontroversial: the texts of the international human rights agreements Hungary had already ratified and were therefore already Hungarian law.Footnote 19 Hungary, during the communist period, had signed virtually every human rights agreement on offer.Footnote 20 Never mind that it would have been useless to invoke any of these rights as if they were real law during the Soviet time. But at the moment of constitutional drafting in 1989, the human rights treaties became a useful tool for organizing the transition, and the specific language came in handy in filling in the holes in the new constitution.Footnote 21 The positivists in the room were convinced they would not be inventing new law by merely elevating these rights into the constitution and the democrats in the room were eager to encourage them to do so.
So the drafting group added to the nearly empty text of the Hungarian constitution language from the International Convention on Civil and Political Rights and the International Convention on Economic, Social and Cultural Rights.Footnote 22 The opposition was delighted to have these human rights provisions finally in the constitution and the communist parliament could hardly object, given that these treaties had already been ratified by previous communist parliaments. With these additions, as well as the changes required by the new election law and new law on political parties, the constitution became one that was—as the opposition Roundtable figures said at the time—“worth defending.”Footnote 23
With a new constitution worth defending and agreed by both sides, the question then arose about how the constitution might actually be defended in practice.Footnote 24 The last communist justice minister, Kálmán Kulcsár, suggested a constitutional court.Footnote 25 Back in the early 1960s, he had been given rare permission to spend a year at Berkeley, where he had heard the great Hans Kelsen lecture.Footnote 26 It was time, said Kulcsár, to bring a constitutional court to Hungary, which for centuries had shared a legal system with Austria where the first constitutional court was created on Kelsen's blueprint.Footnote 27 Kulcsár persuaded everyone that a Hungarian constitutional court would enforce the political bargain that the new constitution represented. As a result, a section establishing a constitutional court was added to the draft constitution at the last minute, and the communist parliament, after less than six hours of debate, passed this new constitution with the new constitutional court included.Footnote 28
This new ragtag Hungarian constitution was enacted on October 23, 1989.Footnote 29 Two weeks later, on November 9, the world watched as the Berlin Wall fell.Footnote 30
The Hungarian story has a moral. International law—in this case, international human rights law—helped to launch a new democracy when this law was taken off the international rack, so to speak, and used to dress up a new national legal system. The national constitutional drafters, working in a hurry and wanting some international legitimation of their effort, reached out and grabbed what was available—which were treaties that the Hungarian government had already ratified to appear to be better than they were. Virtue signaling is nothing new. But then, the provisions of those treaties were used to move Hungary toward real constitutional democracy.
Hungarians latched onto international law in that small window of transition without a parade of international advisors and with no rule of law consultants hawking their legal wares. No threat of the use of force against Hungary made it take this route. If anything, everyone involved in the process was aware of constant possibility that the Soviet Union would change its mind and crack down as this process moved forward so any outside intervention was likely to come from the forces that opposed democracy rather than those advocating it. But acting on their own and without any assistance from international institutions in the moment, aspirational democrats inside the country used the power of already existing international law to guide the transition to democracy.
As the Constitutional Court began its work on January 1, 1990, it could proudly announce that Hungary had achieved a “revolution under the rule of law”Footnote 31 because there had never been a break of legality in the transition from authoritarianism to democracy. Springing into quick action, the Constitutional Court used the now-real rights derived from international law to abolish the death penalty, create an expansive right to free expression, strengthen the parliament and the courts against executive usurpation of powers and destroy the system of pervasive surveillance.Footnote 32 Relying also on international criminal law because the new constitution committed the post-communist Hungarian government to honoring international law more generally,Footnote 33 the Court held that domestic statutes of limitation could not be extended for crimes of the past but that atrocities rising to the level of crimes against humanity could be punished with no time bar.Footnote 34 In short, the constitution-making process in Hungary in 1989 and 1990 was guided by international law, both in the insertion of rights into the text during the drafting process and in the enforcement of international criminal law by the Constitutional Court once the new constitution went into effect. What might have been a radical break in legality was smoothed into a rule-of-law transition through leaning on international law to bridge the old and new regimes.
The Hungarian story illustrates my point—which is that national democrats could and should bring the resources supporting democracy, rule of law and human rights provided by international law into their own domestic legal systems to shore up these principles in democratic transitions. Using the language of international agreements as a constitutional resource provided national democrats in Hungary with an external referent that both operated like a North Star guiding the process of transition and also generated credibility in the national process precisely because it was outside the reach of the national players to change. International law stabilized the post-communist transition in Hungary, and I will argue today that it could do the same again when and if Hungarians—and others whose democracies have been battered—get the chance to restore democracy.
This example also shows that international law does not have to work internationally, so to speak, to have a democracy-strengthening effect. Instead of seeing international law primarily as a system of institutions and binding norms that work above the level of the state to press for change as an external force against national governments, international law can provide a supply of ready-to-hand resources that have an international stabilizing effect for the democrats inside states to use when a democratic moment comes.
II. The Right to Democratic Governance 1.0
1989 was a moment of gleeful optimism in the world. The events of that year capped nearly two decades of democratizing change that had swept through Southern Europe and Latin America before it got to Eastern Europe. 1989 was also the beginning of a revitalization of international organizations. The end of the Cold War made possible a functioning UN Security Council, an expansion of the membership and substantive range of both the European Union and the Council of Europe, a strengthening of the Inter-American system, the launch of the African Union and more.Footnote 35 From where we stand now, however, it is hard to make the case either that democracy is supported by growing state practice or that international organizations are thriving with increasingly democratic mandates. If Tom Franck's original argument rested on the empirical observation that democracies were ascendant, what should we conclude in our present moment when that trend has reversed?
Unfortunately, the evidence is by now incontrovertible that many democracies are floundering, and some are failing. Whether you follow the Varieties of Democracy project,Footnote 36 Freedom House,Footnote 37 the World Justice Project,Footnote 38 the Economist Intelligence Unit,Footnote 39 or the many political scientists who have puzzled over the trend,Footnote 40 the number of democracies in the world has declined since the turn of the millennium.Footnote 41 For example, Venezuela and Hungary, once thought to be the most stable and exemplary democratic regimes in their regions, collapsed into autocracy after 40 years of democracy in Venezuela and 20 years in Hungary.Footnote 42 Russia and Turkey, imagined less than 20 years ago to be on an increasingly democratic path, have both fallen into authoritarianism and overt repression.Footnote 43 The remaining democracies are now weaker when measured either by commitment to checks and balances or by guarantees of rights than they were a decade ago.Footnote 44 Brexit has unleashed a governance crisis as the UK unmoored itself from the transnational law that once stabilized its own unentrenched constitution.Footnote 45 India, the world's largest democracy, is teetering on the brink as its democratic institutions are being undermined by a politically directed intolerant religious fervor.Footnote 46 Israel is, as I write, about to throw checks and balances away.Footnote 47 The US has experienced a perfect anti-democratic storm, created by decades of Republican attempts to entrench minority government colliding with the rise of Donald Trump whose flouting of constitutional norms meant that those norms could no longer be taken for granted.Footnote 48 The intersection of Republican legal engineering to enable minority government combined with the dominance of autocratic aspirations in one of the two major American political parties has shaken the once-unquestioned presumption of democracy in a country not used to thinking of itself as anything else.
I could go on showing how Poland, Ecuador, South Africa, Brazil, Romania, Italy, Peru, Greece, Bolivia, France, Slovakia, the Philippines and more are all one bad election away from (or into) catastrophe, but you get the point. Democracy is not healthy anywhere in the world. It is not healthy in the countries of the Global North that once prided themselves on being invincibly democratic nor in countries of the Global South whose democratic history is shorter, but no less real. When democracy is failing both as a model and in reality in many parts of the world, what is international law to do?
Given 20 years of democratic recession, it is perhaps surprising that international law has not retreated from protecting democracy. Instead, the international law resources that can be mustered to support democracy have grown even as national democracies have faltered. The right to democratic governance no longer rests primarily on an assessment of state practice but instead rests on the way that international organizations and international courts have absorbed once-ascendant democratic practice into the rules that they now enforce. International law now protects and privileges democracy even more than it did in Franck's day. Not only has Franck's Right to Democratic Governance 1.0 has become real, but international institutions have continued to expand their protection of democracy.
When Franck suggested that there was an emerging right to democratic governance, he implied that affected citizens—individually or collectively—could invoke this right against their non-democratic governments. In many ways, at least in some regions of the world, international law has risen to Franck's challenge. Both the European and the Inter-American systems have developed a growing track record of what might be considered “right to democracy” cases backing democratic forces inside countries against those who seek to undermine democratic governance.
In Europe, the Council of Europe (COE) has taken the lead in democracy promotion. Its European Commission for Democracy through Law (better known as the Venice Commission) has led the way in developing best practice standards and in calling out laws that undermine constitutional-democratic norms.Footnote 49 The European Court of Human Rights (ECtHR) has developed a substantial jurisprudence on political rights, including rights to freedom of speech and assembly, as well as a growing case law on the right to free elections in light of the now-standard practice of election monitoring,Footnote 50 something that Gregory Fox advocated in his famous follow-up to the Franck article.Footnote 51 In addition, the Strasbourg Court has also elaborated on the phrase embedded in some of the Convention rights that limitations on these rights are confined to those “necessary in a democratic society.”Footnote 52 Understanding what is necessary in a democratic society requires exploring what democracy means. With these multiple lines of case law, the ECtHR has come close to developing a conception of democracy as something very close to what Franck advocated—which is a broadly framed right to participate in the formation of one's own government, which in turn requires a broad range of robustly protected civil and political rights that enable one to do so.Footnote 53
By 2008, Jean-Paul Costa, then the President of the European Court of Human Rights, could announce, “The democratic ideal permeates the Convention in every respect—its historic origins, its spirit and . . . the case law of the Court.”Footnote 54 Though he opined that the drafting of the right to free elections in Protocol 1, Article 3 was weaker than he would have liked and therefore the Court was limited in precisely what it could do with that language, he left no doubt that protecting democracy was one of the primary purposes of the Convention.Footnote 55
In the European Union, the European Court of Justice (ECJ) was late coming to the field of basic rights and the protection of democracy given that it assumed—until recently—that all of its Member States were both democratic and rights-respecting once they made it through the accession process. But the ECJ now has its hands full with challenges to judicial independence in some of the democratically backsliding states of the European Union—which will be addressed further in the next section. It has also just started to develop a parallel jurisprudence articulating the meaning of Article 10 of the Treaty on European Union (TEU) which announces, among other things that “The functioning of the Union shall be founded on representative democracy. . . . Member States are represented in the . . . Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens.”Footnote 56
TEU's Article 10 first made its appearance in the jurisprudence of the ECJ in a case involving citizens’ initiatives in the EU in which the Court announced that direct democracy was not a substitute for representative democracy,Footnote 57 which seems to rule out government that operates predominantly by plebiscite (a favorite among autocrats). The Court has also blocked the Spanish government's elaborate attempts to prevent duly elected Catalan MEPs from sitting in the European Parliament.Footnote 58 In these cases, the Court announced that the free expression of choice by citizens using their rights to universal direct suffrage will be honored.Footnote 59 While this jurisprudence is in its infancy, it appears that the ECJ will defend European citizens against their national governments if the national governments attempt to thwart their democratic choices within the scope of EU law. Whether this principle will be broadened to include democratic rights in national elections that do not involve election to the European Parliament is anyone's guess at this stage. But Article 10(2) TEU also requires that national governments themselves have a democratic pedigree which authorizes their national leaders to participate in EU institutions, so even the rules of national elections may one day be considered within the scope of EU law.Footnote 60
The Organization of American States (OAS) has also progressively elaborated on the right to democratic governance over its history, accelerating and deepening this right during the 1960s–1980s wave of democratic transformation. When the American Convention on Human Rights finally entered into force in 1978, it included a right of citizens to participate in their government.Footnote 61 As constitutions were reformed across Latin America in the 1980s and 1990s, Convention rights were often incorporated directly into those texts, providing yet more evidence of the way that international law can be incorporated domestically to stabilize national constitutions.Footnote 62
As democracy spread across Latin America in the 1980s, the Charter of the Organization of American States was modified in 1985 to establish that the OAS has a central purpose “to promote and consolidate representative democracy . . . with due respect for the principle of non-intervention.”Footnote 63 In 1991, a resolution of the OAS General Assembly gave the Secretary General the power to convene the Permanent Council to investigate situations in which democracy was threatened in a Member State.Footnote 64 In 1992, the year Tom Franck's article appeared, OAS members approved the Washington Protocol, which permits the suspension of a member “whose democratically constituted government has been overthrown by force.”Footnote 65 These new powers to investigate threats to democracy and mediate among the various domestic parties were applied in Haiti in 1991 after a military coup,Footnote 66 in 1992 after Peruvian President Fujimori's auto-golpe in 1992,Footnote 67 in 1993 after a similar auto-golpe in GuatemalaFootnote 68 and in 1996 to prevent a military coup in Paraguay.Footnote 69 In each case, the usurpers were defeated as the OAS worked together with domestic democratic forces to restore democratic governance through diplomatic intervention.Footnote 70
This democratic track record was consolidated in the Inter-American Democratic Charter, adopted in 2001, which announces in Article 1 that “The peoples of the Americas have a right to democracy and their governments have an obligation to promote and defend it.”Footnote 71 It guarantees that representative democracy is the basis for the constitutional regimes of the Member States (Article 2) and that representative democracy includes respect for human rights, the rule of law, free and fair elections, pluralistic political parties and separation of powers as essential elements (Article 3).Footnote 72 It ensures that elections are subject to international observationFootnote 73 and that democratic culture is strengthened.Footnote 74 The Democratic Charter entrenches the mandate for collective action when a Member State experiences “an unconstitutional alteration of the constitutional regime or an unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a Member State.”Footnote 75
Though the Democratic Charter is not directly enforceable by the Inter-American Court of Human Rights (IACtHR), the Court has used its power to interpret the American Convention on Human Rights through the lens of the Democratic Charter.Footnote 76 As democracies have faltered and even failed in Latin America after the miraculous decade of democratic advances, the IACtHR has stepped in on the side of reversing the damage. For example, the IACtHR in Barrios Altos v. Peru Footnote 77 confirmed that the self-amnesty laws drafted by the perpetrators of Peru's 1991 coup in order to exempt themselves from accountability for mass violations of human rights constituted a Convention violation and therefore had no legal effect.Footnote 78 Of course, by the time that the case came to the IACtHR, the Peruvian government had changed hands and the new rights-respecting democratic government sought confirmation that the rule of law would not be violated if it now honored the Convention, ignored the statute, and provided reparations for those whose rights had been harmed.Footnote 79 Peru welcomed the Court's answer. And as the concurring opinion of Judge A.A. Cançado Trindade noted: “not everything that is lawful in the domestic legal order is so in the international legal order, and even more forcefully when superior values (such as truth and justice) are at stake.”Footnote 80 The Peruvian case demonstrates that international law can reinstitute and stabilize key constitutional norms within democracies after domestic forces have destroyed them as long as new democratic forces are willing to harness the power of transnational institutions to assist them. The Peruvian democratic successor government found it difficult to legally revoke the domestic amnesty law without violating norms about settled legality, but the IACtHR's decision freed the new democratic government from being bound by the self-dealing laws of its predecessor.
Of course, as my distinguished commentator Manuel Cepeda notes,Footnote 81 the history of Latin American democratic transformations resembles a roller coaster more than a straight path. Venezuela is just one of the more extreme cases that demonstrates the ineffectiveness of the Inter-American system at stopping a country's determined slide into autocracy and might even show that such intervention is counterproductive.Footnote 82 The precise path to democracy is complicated and success is not guaranteed in each case even where there are regional resources to assist. Unless domestic actors are willing to use the democratic resources made available by international law, democracy is not self-renewing nor can it simply be imposed through external enforcement. That said, mustering democratic resources at the transnational level means that the resources are available when a later democratic government wants to build back better. There is an old expression that you can lead a horse to water, but you cannot make the horse drink. Perhaps we can add a useful modification to this metaphor—that if a horse wants to drink, it helps if one has set out the water.
Franck's original article suggested that a norm of democratic governance could be used as one criterion among others that would determine whether a government's claim to statehood would be recognized by other states.Footnote 83 As he argued, democratic legitimacy of states was a matter for international concern, in part because democratic states are more likely to keep the peace and honor human rights.Footnote 84 Acknowledging the empirical evidence that democracies rarely initiated wars against other democracies, Susan Marks has since warned that conditioning the recognition of legitimate statehood on a state's democratic bona fides could lead democracies into military intervention against non-democracies.Footnote 85 In addition, given that the history of colonialism was bursting with similar claims about what the not-yet-called-the-Global-North could do to “civilize” the peoples of the not-yet-called-Global-South, she cautioned against democracy promotion as a rationale for international intervention.Footnote 86 The goal of helping to restore democracy in a democratically challenged state has not been generally accepted as a valid reason for military intervention, but we now see the routine use of sanctions against international-law-violating countries for mass abuses of human rights or violations of the law of war.Footnote 87
I could mention many more international law resources that now promote democracy, even though they do not suggest that democracy is a criterion for recognition of statehood or that sanctions can be launched against governments solely for democratic backsliding. Wherever one looks, however, pro-democratic language coming from international organizations is getting stronger, even as their members states have weakened their democratic commitments. For example, the Millennium Declaration of the UN General Assembly proclaims “We will spare no effort to promote democracy and strengthen the rule of law. . .”Footnote 88 and vows “[t]o strengthen the capacity of all our countries to implement the principles and practices of democracy and respect for human rights, including minority rights.”Footnote 89 A UN Focal Point for Electoral Assistance was created in the office of the Under-Secretary for Political and Peacebuilding AffairsFootnote 90 and the UN Democracy Fund, established in 2005, has supported democracy promotion projects around the world.Footnote 91 The Organization for Security and Cooperation in Europe has provided election monitoring missions to countries far beyond its original European mandate.Footnote 92 The Organization of American States is committed to a broad program of electoral observation,Footnote 93 as is the African Union.Footnote 94
Therefore, it is not too much of an exaggeration to say that international organizations all over the world have devoted substantial efforts to democracy promotion. This burst of activity in democracy promotion by international organizations may not be simply driven from above but demanded from below. As Paul Poast and Johannes Urpelainen have argued, not only do international organizations provide support for budding democracies, but leaders in democratic states sometimes even form new international organizations devoted to shoring up democracy to fill gaps in the international system.Footnote 95 They provocatively suggest that it is not just that international organizations now promote democracy in greater numbers on their own remit, but rather that the increase in the number of international organizations in the last half-century has been caused at least in part by the rise of many new democracies that wanted international backup for their new efforts at self-rule.Footnote 96 These new democracies sought out and, when they did not find them, formed international organizations to provide assistance with everything from security to public infrastructure, and from elections to anti-corruption tools. Having this democratic backup from international organizations may stabilize democratic governance within states precisely because the international norms created by these organizations cannot be changed unilaterally by actors battling within domestic constitutional orders. Democracy is now clearly encouraged by international law.
With this quick survey of the growing support from international law and international organizations for democracy world-wide since Tom Franck wrote his influential paper, one might wonder why the “right to democratic governance” is still controversial. Did Franck not already win that fight?
III. The New Autocrats
As we have all now learned by living through years of Covid, whatever does not kill you will mutate and try again. And the same can be said about threats to democracy. Democracy is now so widely accepted as the only legitimate form of government and mass violations of human rights are now so clearly prohibited by both international and national law, that a new generation of autocrats has taken a different path to power.
Twentieth-century dictators specialized in precisely the sort of conduct that resulted in our present human rights conventions, because rejection of those dictators’ methods gave rise to the rights that were included in those lists. Twentieth-century dictators smashed democracy with tanks in the streets. But twenty-first century autocrats do not openly trash democracy or violate the human rights norms over which there is substantial international consensus. Instead, the new autocrats deftly operate to lock down their power by law in the nooks and crannies of national law that international law and international condemnation have not yet reached—by thwarting checks and balances and eliminating veto points in national constitutional law. The new autocrats now win elections and then hollow out democratic institutions, leaving the external shells of democratic institutions intact.Footnote 97 Every clever autocrat these days claims to be a democrat.
In short, the new autocrats have gotten the message that they will be condemned for violating widely accepted international law principles supporting democracy, the rule of law and human rights if they attempt old-fashioned coups. Moreover, any coercive form of anti-democratic rule that jails and tortures opponents, stages show trials, censors or shuts down the media, suspends freedom of assembly, closes opposition parties and otherwise violates well-established civil and political rights will clearly be criticized and may even be sanctioned. In short, democracy, rule of law and human rights are so widely accepted by international institutions that aspirational autocrats cannot be seen to be disregarding any of these basic international norms. The new autocrats know that the “right to democratic governance” is real and they know that they cannot successfully assault it head on.
Therefore, the new autocrats do not follow the old authoritarian playbook. This may be why coups have drastically declined since the end of the Cold War.Footnote 98 Mass human rights violations of the twentieth century sort rarely accompany an autocrat's rise to power anymore. Instead, autocrats begin their march toward the concentration of power through winning free and fair elections (at least the first time), often with populist messages proclaiming that, if they win, they will ensure real democracy. Once in power, these new autocrats do not suspend or destroy parliaments; they alter the rules through which these parliaments are elected or they change the procedures through which parliaments operate so they become empty shells of representative government.Footnote 99 The new autocrats do not shut down or suspend the courts; they simply pack the courts full of supporters by legally changing the rules for judicial appointments and adjusting technical rules about jurisdiction, case assignment, forms of appeal and more.Footnote 100 The new autocrats do not jail opposition members, let alone torture them; they put them under intrusive surveillance so that opposition members know that any wrong move will subject them to the public revelation of kompromat, leaked from who-knows-where but destroying their credibility in future elections.Footnote 101 Where are the rights violations in all that? If these new rules are duly enacted by the newly elected aspirational autocrats working in tandem with newly elected parliaments and certified by the newly restructured courts, what's the problem? This is how democracy is supposed to work! It does not look like the obvious onset of autocracy.
As Steve Levitsky and Daniel Ziblatt have explained, however, “Democratic backsliding begins at the ballot box.”Footnote 102 And then, as the title of my forthcoming book announces, the new autocrats proceed to “destroy democracy by law.”Footnote 103
Let us go back to the international law resources that were on offer at the beginning of the “right to democratic governance” debate—in what we might call the Right to Democratic Governance 1.0. Election monitoring was supposed to provide an early warning that democracy is in peril, as Gregory Fox persuasively argued.Footnote 104 In the 1990s, some of the optimists assumed that international election monitoring would be able to certify whether those who won elections truly had the backing of their people.Footnote 105 The assumption was that this would be enough to certify that the resulting government was democratic.Footnote 106 But things have worked out rather differently. The Venezuelan election that brought Hugo Chávez to power in 1998 was observed closely by the Carter Center, which reported that the election was well-conducted.Footnote 107 The Hungarian election that brought Viktor Orbán into office in 2010 was similarly given a green light by the OSCE Office of Democratic Institutions and Human Rights (ODIHR).Footnote 108 Clean bills of health were given by ODIHR to the Polish elections in 2015 that handed the Law and Justice party victories in the presidential and parliamentary elections.Footnote 109 The 2006 Ecuadorian election that brought Rafael Correa to power was similarly blessed by OAS election monitors.Footnote 110 Multiple teams of election monitors even gave a thumbs up to the 2007 election of members of the Ecuadorian Constituent Assembly that rewrote the constitution to benefit Correa.Footnote 111 In the Turkish election that Recep Tayyip Erdoğan's AKP party won in 2002, catapulting him into the Prime Minister's chair for the first time, the playing field was, if anything, tilted slightly against him which meant that his victory against the odds was deemed all the more legitimate by election monitors.Footnote 112
In all of those monitoring reports of the elections that brought aspirational autocrats to power, you will find, at most, small deviations from international norms. And yet each of these leaders set their governments on a course of dramatic democratic devolution after they won these mostly free and mostly fair elections. International election monitoring was part of the emerging right to democratic governance because it could certify the strength of democracy worldwide and it has been broadly accepted, but it has not worked to separate the real from the fake democrats.Footnote 113 Autocrats now typically come to power through what look like free and fair elections, blessed by the very election monitors who were supposed to certify to the world that their governments were democratic.
In keeping with the general rule that they should stay out of international law trouble while consolidating power, the new autocrats have also by and large respected human rights at least until very late in the game when the only way to remove them is through pitched resistance that sometimes generates a brutal state response (as in Turkey,Footnote 114 Venezuela,Footnote 115 or RussiaFootnote 116). But for the first 10–15 years into a backsliding democracy, the opposition is generally not jailed, tortured or publicly persecuted. Free speech is generally not curtailed, so the democratic opposition will be permitted its few small media outlets and transient websites.Footnote 117 Never mind that the public media may turn into propaganda outlets, or the most important media may be sold under pressure to oligarchs supporting the regime so that the news that the vast majority of the electorate sees is all on the side of the autocrat.Footnote 118 Opposition figures may not be charged with treason, but they will be sued for libeling public officialsFootnote 119 in a system in which the government may be able to channel the cases it cares about to friendly judges.Footnote 120 In fact, these libel actions against government opponents do not even have to result in a victory for the plaintiffs; the suits themselves will absorb the democratic opposition's time and money while simultaneously deterring others from criticizing the government so a criminal conviction becomes superfluous. In these new autocracies, opposition political parties will appear at election time and vigorously contest the elections but the election rules will ensure they will lose.Footnote 121 Visitors to the capital cities of these captured democracies may report that people walk freely in the streets in front of newsstands bursting with publications and that small demonstrations against the government are routine.Footnote 122 The new autocracies feel like free countries! That is because the new autocracies do not look or act like twentieth-century dictatorships. Instead, they imitate normal democracies. Underneath the surface, however, the fix is in.
How can aspirational autocrats pull this off? In the twentieth-century existential fight between communism and capitalism (often portrayed as a war between communism and democracy, or between freedom and its enemies), civil and political rights were included in legally enforceable international agreements—like regional human rights conventions—while social and economic rights were never so widely entrenched. As a result, the new autocrats know now that they cannot curtail the civil and political rights of their critics because that is where they will run into international trouble; instead, they use economic pressure to put opposition members’ livelihoods at risk.Footnote 123 After all, in the Cold War between communism and capitalism, capitalism won. The damage that capitalism routinely causes through economic precarity and massive inequality does not register as a general violation of international human rights. However much those economic pressures may harm the people who experience them, these harms are conceptualized as the usual detritus of capitalism. That is the space that attracts the new autocrats.
The new autocrats now ensure that those who oppose them lose their jobs in the public sector when civil service protections are weakened.Footnote 124 They ensure that their opponents’ businesses become economically unviable when state regulation targets them or access to state contracts is suspended.Footnote 125 New autocrats punish advertisers in the independent and opposition media or corporations that speak out against them by ensuring that tax breaks or special benefits are withdrawn from their businesses.Footnote 126 They undermine all institutional toeholds that the opposition may use to organize against them by cutting off foreign funds to the civil sector,Footnote 127 defunding opposition parties between elections,Footnote 128 harassing those who attempt to fund opposition groups,Footnote 129 and attacking universities.Footnote 130 The new autocrats ensure that their political opponents are deprived of their livelihoods through what looks like the normal operation of market forces (being fired from at-will jobs without official reason, having their small businesses closed by tax or health inspections; finding social benefits have turned into discretionary grants of beneficence rather than support as of right).Footnote 131 And then the new autocrats blame the markets for the fate of the political opposition.Footnote 132 If the political opposition members cannot hold a job or keep their businesses open, what is wrong with them? The new autocracy indeed promises freedom—freedom to fail.
The new autocrats do not commit crimes against humanity; they shorten unemployment benefits and make social assistance discretionary in the hands of party leaders.Footnote 133 And then, when the opposition is deprived of its livelihoods, the new autocrats open the doors and encourage those who are critical of the government to seek greener pastures elsewhere instead of imprisoning them for their temerity to challenge the government.Footnote 134 The new kinder, gentler autocracy operates not through coups, overt repression and show trials, but by using electoral majorities (real or fake) to change the laws in the parliament so that the economic viability of any potentially successful opposition is undermined.Footnote 135 Most crucially, the governing parties change the election laws so that the opposition can no longer win even after majorities swing in their direction.Footnote 136 And they often change those election laws in ways that the election monitors do not catch because the new election laws are a mash-up of election rules that all look fine individually because each one is taken from another perfectly functional democracy even though they are put together so that elections now lead to only one result.Footnote 137
Aspirational autocrats fool their international critics by creating a Frankenstate.Footnote 138 Like Dr. Frankenstein's monster who was created by connecting a torso from one perfectly normal body to the arms from another and the legs from still another, a Frankenstate does the same with law. The individual legal rules may have come from “normal” democracies but when stitched together by law, they create a monster. The Frankenstate method allows the new autocrats to concentrate political power in the smallest number of hands while incapacitating the grand institutions of state that would otherwise be empowered to constrain them—and to do so while looking like a “normal” constitutional government because the laws they use to do this are all taken from unquestioned democracies.
For example, we can now look back on the first signs that Vladimir Putin was no democrat by examining the laws he pushed through the parliament in 2005 responding to the wave of terrorist attacks engulfing Russia at the time.Footnote 139 One law altered elections to the Duma, the lower house of the Russian parliament, by changing the election system from first-past-the-post races in individual constituencies (modeled on the US and the UK) to a proportional-representation system in which members of the Duma would be selected only from national party lists (like in the Netherlands and South Africa).Footnote 140 Many thought that this would improve Russian politics because it would strengthen the party system and allow for more proportional representation, so few outside the political opposition flagged this as dangerous at the time.Footnote 141 Another law more controversially gave Putin the power to replace the popularly elected regional governors with presidential appointees (as in India).Footnote 142 Many Russians supported this move since everyone knew that many of the regional governors were corrupt and ran their own indestructible fiefdoms.Footnote 143 Plus, the era of presidential appointment of governors did not last long.Footnote 144 Soon, the law was changed—with popular approval—back to popular election of the governors.Footnote 145
In retrospect, we can now see that these two moves gave Putin a lock on both houses of parliament that continues to this day. The Duma election reforms required parties to run national election slates with support from the vast majority of Russia's regions, and only a few parties were able to muster wide geographical dispersion of support.Footnote 146 All of the small liberal parties failed to meet the criteria for registration as their support was concentrated only in the major cities in European Russia and so they were all ejected from the Duma.Footnote 147 After the reforms, the Duma has become a rubber stamp for Putin because his United Russia party has dominated the parliament ever since.Footnote 148 Appointing regional governors for a brief period allowed Putin to control the Federation Council, the upper house of the Russian parliament, because regional governors were the ones who appointed the two representatives from each region who sit in that chamber.Footnote 149 Even restoring regional elections has not changed the Federation Council's pro-Putin makeup because, once the power of incumbency was shifted to Putin loyalists, they have leveraged that incumbency to hang onto power.Footnote 150 Putin gained unwavering support in both houses of the Russian parliament—all by introducing mechanisms that were used in perfectly respectable democracies elsewhere.
I mention this Russian example because few of us—myself included—were critical of these reforms at the time. What could go wrong with choosing a Dutch-style election system or rooting out corruption by getting rid of entrenched local autocrats, especially when India was a democracy that organized the selection of regional governors in the same way? What most observers did not see was that both moves, enacted in parallel, functioned to disable the parliament as a serious check on presidential power given the specific facts on the ground in Russia.Footnote 151 After these reforms, the Russian parliament became a virtual rubber stamp for Putin, not by being closed and bombed (as had happened live on television to international horror under his predecessor, the intemperate and often drunk Boris Yeltsin) but by being altered by law in ways that looked like reforms that improved the quality of democracy. It was the perfect Frankenstate move.Footnote 152
But these Frankenstate moves are often hard to spot in advance. Comparative constitutional law scholars know that, however many “models” of constitutional government are on offer, each constitutional order has unique features.Footnote 153 Governments that otherwise share a family resemblance—semi-presidential systems, unicameral parliamentary systems, Westminster-style parliamentary-supremacy systems—will always have differences among them when one gets down to the details.Footnote 154 Even if the international law of democracy had tried to develop in the direction of ensuring that national constitutional institutions could not be undermined by anti-democratic changes, it would have been very hard to design general rules that would have protected constitutional democracies from the predation of the new autocrats who are expert at undermining idiosyncratic national constitutional defenses with country-specific tactics. The tendency of international monitors—from election monitors to democracy raters—to use checklists and to assess only parts of systems rather than wholes has also made it difficult for outsiders to see precisely how democracies were being dismantled when they were dismantled in this Frankenstate way.Footnote 155
The most sophisticated new autocrats have become excellent comparative constitutional lawyers who can find rules from good democracies to import into their domestic systems in order to hasten the collapse of democracy while still keeping up appearances.Footnote 156 Being members of the exclusive clubs of international organizations may positively assist in this effort. The Council of Europe and the European Union jointly run the European Centre for Parliamentary Research and Documentation which allows all Member States’ parliamentary correspondents to request information from all other parliaments in the network about the law and practice of regulation across the whole swath of public law.Footnote 157 In this way, autocrats can avail themselves of the benefits of membership to further undermine democracy at home by using the network to gain information about models that might be adapted for autocratic ends in the specific contexts in which the autocrats are working. Because borrowing rules from good democracies to do bad things at home nearly always works to evade criticism, the Hungarian and Polish governments set up a joint institute for comparative constitutional law whose experts adapt these European models for exploitation.Footnote 158
For example, when Hungarian universities were privatized starting in 2019, they changed hands through laws passed by the parliament that first created private foundations controlled by boards of trustees packed with governing-party-affiliated members.Footnote 159 Then parliament “donated” the universities—land, buildings, libraries, faculty, staff and students—to these foundations.Footnote 160 The effort succeeded in pushing 21 of Hungary's 26 public universities out into the private sector.Footnote 161 But the move from public to private institutions destroyed university autonomy. Affected faculty lost the tenure they had as civil servants and their jobs became precarious.Footnote 162 The new politically selected boards quickly abolished faculty governance that had existed even in the Soviet time because, as in other democracies, the boards held the legal responsibility for the institution as a whole.Footnote 163 The public lost the ability to monitor the universities and ensure that public funds were not being siphoned off into private pockets because, while the public universities were subjected to public audits and freedom of information requests, the private universities were not.Footnote 164 Academic freedom, as a result, became severely threatened in Hungary. But when challenged, the Hungarian government claimed it had just done what Finland did a few years earlier to privatize its universities.Footnote 165 It took several years for the European Union to figure out that, unlike Finland, Hungary had not privatized universities in order to strengthen academic freedom and permit a broader range of private funding to support universities but instead had appeared to copy Finland in order to undermine the whole university system.Footnote 166 At the end of 2022, the European Union froze all funds that would otherwise go to these universities due to the corruption risks from taking substantial amounts of EU funds private and therefore losing all public accountability for those funds.Footnote 167
What does international law have to say about these Frankenstate moves? Given that the tactics of the new autocrats were developed precisely to evade triggering international condemnation when states turned their backs on democracy, it is not surprising that the new autocrats are operating either in spaces where international law has not traditionally dared to go or with the cover of perfectly reasonable international models borrowed from good democracies. International election observers, human rights monitors and international organizations that track democracies have therefore been very slow to recognize the danger to democracy created by the new autocrats.Footnote 168 As the dangers have been dawning on them, however, new resources are being developed at record speed to cope with the tactics of the new autocrats.Footnote 169
IV. The Right to Democratic Governance 2.0
The new autocrats have attacked democratic institutions precisely where international law has feared to tread—by changing national constitutional law. In most democracies, however, rights in national constitutions have been thoroughly infused with international human rights principles which make them harder to undermine unilaterally in one country.Footnote 170 As a result, the new autocrats do not typically attack the civil and political rights embedded in those constitutions but operate where there is less international attention, using economic leverage against their opponents, particularly in the absence of internationally enforceable social and economic rights.Footnote 171 The new autocrats also rearrange the constitutional structure of institutions to consolidate power in fewer and fewer hands.Footnote 172
International law has traditionally had very little to say to say about the structural parts of national constitutions, so the new autocrats have sought to evade international condemnation by focusing on dismantling checks and balances, eliminating veto points, compromising the independence of monitoring and adjudicating institutions and suspending the rules that ensure that they are also bound by law.Footnote 173 The structural parts of constitutions determine how power is distributed (and limited) across national constitutional institutions and they provide guarantees of independence so that crucial checking institutions like courts, ombudsmen and central banks can stand apart from politics in order to ensure that someone guards the guardians.Footnote 174 Autocrats seek to destroy this institutional complexity to make the exercise of power simple so that there are no pesky institutional or procedural barriers to the instant realization of their wishes.Footnote 175 Additionally, they typically want to change the rules to make it possible to stay in power for the foreseeable future.
International law has generally avoided taking positions on the internal structures of governments. In fact, international democracy assistance typically takes the form of informing reforming governments of their options, only to say that international experts cannot choose for the locals but can only advise on alternatives.Footnote 176 But as democracies have declined around the world over the last two decades or so, we are now witnessing the fast emergence of international protection for key structural elements of national democratic systems.Footnote 177 Regional organizations have tackled questions about judicial independence,Footnote 178 term limits in presidential systems,Footnote 179 and the autonomy of some “fourth branch” institutions,Footnote 180 including election offices,Footnote 181 anti-corruption bodies,Footnote 182 national banks,Footnote 183 universities,Footnote 184 and rights monitors.Footnote 185 In short, international law has been responding to the crisis of democratic backsliding by developing standards to protect crucial democratic institutions.
How has international law grown these new powers?Footnote 186 Just as the initial “emerging right to democratic governance” grew sideways out of a combination of individual rights to speech, assembly, and voting as well as the collective right of self-determination, the legal resources for defending constitutional-democratic institutions have also grown sideways from a variety of legal sources, most prominently the protection of individual rights through the elaboration of the national constitutional structures that must be ensured in order to guarantee these rights.Footnote 187 If Tom Franck spotted the first wave of changes sustaining an emerging right to democratic governance, we are now witnessing the rapid emergence of a second wave of changes that support the right to democratic governance by shoring up national democratic institutions. After documenting the success of Franck's Right to Democratic Governance 1.0, we are in the middle of witnessing an explosion of legal resources that now constitute a new Right to Democratic Governance 2.0.
Regional human rights courts are at the forefront of this development. While they may be formally limited to adjudicating violations of rights, judges on these courts have started to recognize that the practical realization of individual rights requires particular configurations of national constitutional institutions.Footnote 188 As a result, legally enforceable principles protecting democratic institutions are being derived from rights conventions and democratic charters.Footnote 189 In particular, the rights to vote and stand for office have started to ground emerging norms about the structural preconditions for free and fair elections as well as what alternatives should and must not be presented to voters at election time so that autocrats cannot use incumbency to tilt elections in their favor.Footnote 190 The rights to a fair trial and to effective remedies have started to ground transnational standards for judicial independence.Footnote 191 And the growing interdependence of countries underwritten by ever more all-encompassing treaties (in this respect, the European Union is way ahead of the rest) creates a reliance by transnational institutions on national ones that gives the transnational institutions a stake—and therefore a say—in how those national institutions are configured.Footnote 192 This means in practice that when democracies come together to accomplish common purposes through treaties, they sometimes rely on the provisions in the national law of all of their other treaty partners to preserve and protect the agreements they have made.Footnote 193 This interdependence then becomes the basis not only of common standards for national constitutional institutions but also creates the need for new sanctions regimes against democratic backsliding.
Let us start with the Inter-American system.
A. The Inter-American System—and the Infrastructure of Democracy
The Inter-American Court of Human Rights (IACtHR) has insisted that the courts of signatory states engage in “conventionality review,” which is the direct application of the Inter-American Convention in domestic adjudication.Footnote 194 While not all Latin American courts have taken up the invitation to engage in conventionality review, some courts have used the increasingly bold jurisprudence of the IACtHR to shape their understandings of their domestic constitutions and to hold off aspirational autocrats who are trying to consolidate power in their domestic constitutional order.Footnote 195 As the IACtHR has begun to transform the rights over which it presides into structural requirements that democratic national constitutions must honor, some national courts have used this opportunity to strengthen their own abilities to withstand anti-democratic pressures by developing the idea of a “constitutional block” that fuses national and international law.
For example, the most internationally visible constitutional court in the region, the Colombian Constitutional Court, has strengthened the Court's power to keep democracy on track with just such a fusion.Footnote 196 In a country whose constitutional system has produced “both a very strong president . . . and at times a weak, dysfunctional and clientelistic Congress,”Footnote 197 the Constitutional Court has strengthened itself and its rulings by importing international law ideas directly into its decisions, interpreting the national constitution through the invocation of Article 93 of the constitution.Footnote 198 Article 93 requires both that international human rights treaties have priority over domestic statutes and that the constitution itself be interpreted in light of these human rights agreements.Footnote 199 The Court has therefore developed a “thick engagement between domestic constitutional law and international law”Footnote 200 by understanding the national constitution in light of international law principles in a wide-ranging set of cases. The resulting “constitutional block” has been on particularly prominent display when international humanitarian law was relevant to intervening in the long-running civil conflict with the guerilla group FARC, determining the responsibility of the government for internally displaced persons, and setting the limits the government must observe in states of exception.Footnote 201 Infusing its own jurisprudence with ideas drawn from international law, the Colombian Constitutional Court has made it harder for the government to attack it by invoking standards that no actor in Colombia can unilaterally change. In fact, seeing the Colombian Constitutional Court doing just this, under the leadership of Manuel Cepeda Espinosa, was what inspired me to write this lecture. It is one of many reasons why I am honored that he was selected as my distinguished commentator.
The IACtHR has tried to strengthen independent institutions necessary for democracy in the region across a number of different fields. It has been particularly active when national courts have come under attack, since bringing courts to heel is very often a first goal of aspirational autocrats. The American Convention of Human Rights, Article 8.1 guarantees that “every person has the right to a hearing . . . by a competent, independent and impartial tribunal.”Footnote 202 While framed as an individual right, the text obviously assumes the existence of competent, independent and impartial tribunals, which in turn invites an inquiry by the IACtHR as to whether those structural requirements are met. The IACtHR has therefore used this individual right to develop institutional preconditions for its realization, reaching quite far into the terrain of national constitutions.Footnote 203
Constitutional Court v. Peru Footnote 204 reviewed the impeachment of justices of the Peruvian Constitutional Court under the then-presidency of aspirational autocrat Alberto Fujimori. Fujimori had disagreed with a key judgment of that national court and sought to have the justices removed.Footnote 205 The Inter-American Commission, in referring the case to the Court, argued that Article 8 of the Convention required the judges be guaranteed “independence, autonomy and impartiality in the exercise of their functions” and that “the irremovability of judges is implicitly guaranteed in Article 8(1). . . .”Footnote 206 The IACtHR agreed, adding that “the independence of any judge presumes that there is an appropriate appointment process, a fixed term in the position and a guarantee against external pressures.”Footnote 207 Even when judges were threatened by the parliament with impeachment, a process provided for in the constitution, the IACtHR reiterated that “any person subject to a proceeding of any nature before an organ of the State must be guaranteed that this organ is competent, independent and impartial and that it acts in accordance with the procedure established by law for hearing and deciding the case submitted to it.”Footnote 208
Amassing abundant evidence that the impeachments of judges had been initiated in order to pressure the Constitutional Court to bend to the will of politicians, the IACtHR found that the conduct of the impeachment process itself violated the fair trial rights of the justices.Footnote 209 Addressing what these impeachments did to the Constitutional Court as an institution, the IACtHR held that “The dismissal of the justices and the omission by Congress to appoint substitutes, violated erga omnes the possibility of exercising the control of constitutionality and the consequent examination of whether the State's conduct was in harmony with the Constitution.”Footnote 210 The IACtHR inquired into the constitutional structure of the national judiciary in order to ensure that Convention rights were upheld by protecting individual judges from politically motivated removal proceedings and ensuring that there were enough constitutionally required members on that Court for it to exercise its constitutional functions.
The IACtHR later revisited the topic of judicial independence in two cases brought against Ecuador by judges of the Constitutional Court, the Supreme Court and the Supreme Electoral Tribunal, arising out of what the judges alleged was their arbitrary termination in 2004 through impeachment proceedings that failed to guarantee either procedural fairness to them specifically or to the continued operation of their courts in general. Like the Peruvian case, Constitutional Tribunal v. Ecuador Footnote 211 originated out of a claim about the availability of the right to a hearing before an impartial tribunal for impeached constitutional judges even as it raised questions about judicial independence at the institutional level. A parallel case was brought by judges of the Supreme Court.Footnote 212
The Ecuadorian constitutional judges had been fired in turbulent political times.Footnote 213 Ecuador had had seven presidents in nine years, none of whom had completed their terms, and the courts were frequent targets of reorganization and attacks during this period.Footnote 214 A new constitution enacted in 1998 guaranteed judicial independence but, in establishing the new institutions that the constitution created, political disputes arose over how to elect the judges to sit on these new courts.Footnote 215 One parliamentary majority elected the judges; the next parliamentary majority impeached the president who had nominated those judges.Footnote 216 The new president announced a proposal to reorganize the Constitutional Tribunal, Supreme Court, and Electoral Tribunal by removing the judges already elected to office by the previous parliament.Footnote 217 The new parliament then passed resolutions firing all of the judges from all three courts on the grounds that they had been unlawfully appointed.Footnote 218 New judges appointed to the Supreme Court promptly issued a series of decisions nullifying prior court decisions against former presidents of the republic, giving a broad hint about why they may have been appointed.Footnote 219 Immediately thereafter, the appointments of all of these new judges of the Supreme Court were terminatedFootnote 220 and Ecuador had no operating Supreme Court for about seven months.Footnote 221 The Constitutional Court was also suspended for nearly a year after its judges were also impeached.Footnote 222 New justices elected in 2006 were all removed in 2007.Footnote 223 Another new constitution in 2008 shook up the system again, but at least it guaranteed that the Constitutional Court justices should not be subjected to impeachment.Footnote 224 By the time that the IACtHR decided this case in 2013, a full nine years and many subsequent reorganizations of the judiciary had passed since the initial firing of the judges who brought the case.
In the Constitutional Tribunal case, the IACtHR found numerous flaws with the procedures through which the judges’ appointments had been terminated, which would have been enough for the IACtHR to find in the judges’ favor.Footnote 225 But the IACtHR went beyond the situation of the particular judges to elaborate on what the institutional requirement of judicial independence required.Footnote 226 Citing the United Nations Basic Principles on the Independence of the Judiciary and therefore itself relying on international law beyond its own reach,Footnote 227 the IACtHR declared that “the free removal of judges fosters an objective doubt in the observer about the real possibility of judges to decide specific disputes without fear of reprisal.”Footnote 228 The IACtHR quoted the Basic Principles, which stated that “[t]he judiciary shall decide matters before them […] on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”Footnote 229 Drawing on a wide range of international law sources from the Human Rights Committee's general comments to the African Principles on the Right to a Fair Trial,Footnote 230 the IACtHR found that
[T]he State must guarantee the autonomous exercise of the judicial function in both its institutional aspect, that is in relation to the Judiciary as a system, and also in relation to its individual aspect, that is, as regards the person of the specific judge. The Court finds it pertinent to clarify that the objective dimension is related to essential aspects of the rule of law, such as the principle of the separation of powers, and the important role played by the judicial function in a democracy. Consequently, this objective dimension transcends the figure of the judge and has a collective impact on society. In addition, a direct relationship exists between the objective dimension of judicial independence and the right of judges to accede to and remain in office under general terms of equality, as an expression of their guarantee of stability.Footnote 231
According to the IACtHR, the state's interference with these broad institutional guarantees, and not just the violation of the fair trial rights of individual judges who were subject to dismissal proceedings, constituted a violation of Article 8(1) of the American Convention.Footnote 232
The Peruvian and Ecuadorian cases were brought by judges openly dismissed for political reasons in the context of a political struggle to control the judiciary.Footnote 233 The IACtHR stood up strongly against these glaring violations through judgments that, for all of the general insights they produced, were grounded in local detail. While the IACtHR has risen to the challenge in individual cases, however, it has been reluctant to state general principles in the abstract.Footnote 234 In 2018, the Inter-American Commission asked the IACtHR for a more general advisory opinion on judicial independence, as interpreted against the backdrop of the Democratic Charter.Footnote 235 But the IACtHR demurred, reluctant to make general pronouncements on a topic when pending cases in the system would raise the issue more concretely.Footnote 236 So far, the IACtHR has decided these tricky judicial independence cases only on the basis of concrete facts.
The IACtHR was, however, much less reticent in defining general standards in an advisory judgment about another way that democracies fail, which is through the extension of presidential terms of office. Since almost all Latin American countries have presidential systems of government, one of the biggest challenges to democracy in the region has come from the attempts by aspirational autocrats to stay in power through constitutional amendments that allow them to run for more terms in office than the national constitution permitted when they first took office.Footnote 237 In Peru, Argentina, Brazil, Venezuela, Dominican Republic, Colombia, Ecuador and Bolivia, constitutions were amended in the 1990s and 2000s to allow single-term-limited presidents to stand for reelection.Footnote 238 After permitting the extension of the presidential term of office from one to two terms, the Colombian Constitutional Court rejected then-President Álvaro Uribe's insistence that he be permitted to run for a third term in a judgment that declared the constitutional amendment that would have extended his term unconstitutional.Footnote 239 President Rafael Correa's effort to run for a third term in Ecuador was foiled by a referendum that he lost.Footnote 240 But in Venezuela, Nicaragua, Bolivia and Honduras, term limits fell and the associated democracies were either crushed or severely damaged.Footnote 241 The Latin American experience has made abundantly clear that term limits are essential for constitutional democracy to survive in presidential systems.
Against this background, in 2019, Colombia requested an Advisory Opinion from the Inter-American Court on the subject of presidential reelection without term limits.Footnote 242 The IACtHR issued the requested opinion,Footnote 243 even though this was not a traditional inquiry within the scope of interpretation of a human rights convention. The IACtHR reworded the Colombian government's questions so that they fell more precisely within its jurisdiction as a human rights court,Footnote 244 and then answered them fully. The IACtHR also extended its usual interpretive remit so that it found relevant not just the American Convention but all of the treaties in the Inter-American system that had a bearing on human rights.Footnote 245 The IACtHR deemed the Democratic Charter in particular to be an “interpretive text” that could help in understanding both the OAS Charter and the American Convention and thus determined that all three texts would be considered together in this opinion.Footnote 246 In short, the IACtHR went to great lengths to take the case and decide it on the broadest possible reading of its own powers to guarantee the enforcement of individual rights by elaborating the constitutional structures that are necessary for preserving these rights.
The IACtHR declared, “the interdependence between democracy, the rule of law, and the protection of human rights is the basis of the entire system of which the Convention forms part,”Footnote 247 before listing the prodigious number of Inter-American treaty provisions, protocols and resolutions that the Inter-American system had produced linking these three values. Taking these on board, the IACtHR proclaimed, “it is clear that the effective exercise of democracy in the States of the Americas constitutes an international legal obligation and they have, in their sovereignty, agreed that such exercise is no longer solely a matter of their domestic, internal, or exclusive jurisdiction.”Footnote 248
(How far the law had come since Franck's Right to Democratic Governance 1.0!)
The IACtHR went on to argue that the Democratic Charter provided the “guiding criteria” for addressing questions about what democracy requiredFootnote 249 and catalogued the individual political rights in the Convention—the right to vote in “honest, periodic and free” elections,Footnote 250 the right to participate in the conduct of public affairsFootnote 251 and more—as a basis for arguing that democratic institutions were necessary for the protection of these rights. Linking rights to constitutional-democratic fundamentals, the Court cautioned that “the only way human rights can truly and effectively establish norms is through the recognition that they cannot be subject to majority rule, as it is precisely these rights that have been defined as limitations on the principle of majority rule.”Footnote 252 Given their roles in protecting minorities, democratic institutions must be strong enough to set limits on what majorities can do.Footnote 253 And to do this, they cannot simply respond to majoritarian demands. The potential danger is that leaders who are continually reelected will cease to represent their constituents by using the power of incumbency to their advantage and to eventually turn democracy into autocracy.Footnote 254 Therefore, even if democratic publics want to keep reelecting their leaders, “the prohibition on indefinite terms in office aims to prevent people who hold popularly elected office from keeping themselves in power.”Footnote 255
The IACtHR explained that the Democratic Charter makes reference to the “plural regimen of parties and political organizations” that grounds a fundamental principle of political pluralism,Footnote 256 which in turn requires “an obligation to guarantee rotation of power.”Footnote 257 As the IACtHR argued, “There must be a real and effective possibility that different political movements and their candidates can win popular support and replace the ruling party.”Footnote 258 Among other things, this prohibits leaders from changing the rules of the game to keep themselves in power.Footnote 259 The IACtHR found that “the principles of representative democracy include . . . the obligation to prevent a person from remaining in power and to guarantee the rotation of power and the separation of powers.”Footnote 260 Bringing the analysis back to individual rights, the IACtHR found that the limitation on the political rights of someone who has already been president to be able to stand for office again was not unreasonably limited by a bar on reelection, just as the political rights of those who might have wanted to reelect such a candidate did not require a limitless field of choice.Footnote 261 No right is absolute, according to the IACtHR, so the political rights to vote and stand for office must give way when the preservation of democracy itself would be compromised by the possibility that a particular leader could be continuously reelected.Footnote 262
By a five-to-two decision, the IACtHR found that setting term limits was not only not a violation of the political rights of individuals, but also that term limits were necessary for a robust representative democracy.Footnote 263 The two dissenters argued against the IACtHR taking the case in the first place and, once the admissibility decision was made, asserted that the IACtHR should have limited its opinion to simply interpreting the rights in the Convention without broadening the analysis to include the OAS and Democratic Charters to reach the institutional points.Footnote 264 But the majority of judges on the Court used the case to elaborate a far-reaching theory of democratic institutions and what their protection required.Footnote 265
Between the judicial independence cases and the advisory opinion on presidential reelection, the IACtHR has not limited itself to outlining simply what the political and democratic rights require at the individual level but has come much closer to creating a jurisprudence of democratic institutions. According to this jurisprudence, democratic governance requires structural guarantees to keep power from being concentrated in fewer and fewer hands.Footnote 266 Limits on presidential terms of office and the maintenance of an independent judiciary are just two of the conditions that democratic governance requires. In reading these two requirements out of a human rights convention, supplemented by the regional Democratic Charter, the IACtHR has used its powers to shore up democratic institutions in its signatory states.
B. The European Regional System and the Legal Protection of Democratic Infrastructure
The European regional system has also become increasingly active in laying down requirements that national constitutional institutions must meet. The European Court of Human Rights (ECtHR) and the Venice Commission within the Council of Europe system have generated principles of democratic governance that reach far into national legal systems to specify how they should (or more precisely, how they should not) be structured. As with the IACtHR's jurisprudence, the European regional system has been particularly focused on elaborating what judicial independence requires. The ECtHR has also begun to elaborate a bit about the institutional structure within which democratic elections must be run. The European Union, whose law supersedes national law on the topics that have been delegated to it, was late to the party, though it has had by far the bigger impact.
First, on the Council of Europe (COE) system. The Venice Commission was founded in 1990 to provide advice to the Eastern European countries that were transitioning from autocracy to democracy at that time.Footnote 267 It presently has 61 members, including all 46 of the Council of Europe Member States (down one country after Russia was expelled in 2022 for its invasion of Ukraine).Footnote 268 It now also includes a growing number of countries outside the region.Footnote 269 Once a resource for developing democracies to voluntarily consult as they were reforming their laws to become more democratic, the Venice Commission has become a key monitor of democratic backsliding whose expert opinions are increasingly sought by transnational institutions to provide objective assessments of the compatibility of new laws in declining democracies with the requirements of democratic governance.Footnote 270 In short, the Venice Commission has been transformed in recent years from primarily being the coach of new democracies to being an important assessor of democracies in trouble.
Article 3(1) of the Statute of the Venice CommissionFootnote 271 empowers Council of Europe bodies as well as “a state or international organization or body participating in the work of the Commission” to request opinions on particular states’ laws, and increasingly, the work of the Venice Commission has been devoted to applying its best practices and general principles to assessing the laws of backsliding states on the request of both the COE and European Union (EU) institutions. While the Venice Commission's opinions are not legally binding by themselves, they are now being used by European transnational institutions that have enforcement powers.Footnote 272 In particular, the European Union—which has no body equivalent to the Venice Commission—has referred the laws of its backsliding Member States for assessment and has used those assessments in developing enforcement actions.Footnote 273
The Venice Commission has now issued 22 opinions since 2010 on the legal consolidation of autocracy in Hungary, opinions that elaborate basic democratic principles in assessing not only the new 2012 constitution and many of its 12 (to date) amendments, but also the implications for democracy, rule of law, and the protection of human rights that have resulted from the repeated attacks on the judiciary, the reorganization of the public prosecutor's office, the onerous regulatory framework for the media, and the laws affecting the rights of civil society organizations, students, LGBTIQ+ persons and ethnic and racial minorities.Footnote 274 The Venice Commission has produced six opinions on democratic backsliding in Poland since 2015, focusing primarily on the attacks on the judiciary.Footnote 275 It has also produced many other opinions on other democratic states in trouble, perhaps most notably intervening in the conflict between Ukrainian President Volodymyr Zelenskyy and the Constitutional Court of Ukraine after judges who were themselves suspected of violating anti-corruption rules nullified large parts of his anti-corruption program.Footnote 276 In addition, it has issued general reports laying out best practices, including one on presidential term limits that parallels the discussion of the IACtHR in its advisory opinion on that subject.Footnote 277
With the ability to issue binding decisions interpreting the European Convention on Human Rights (ECHR), ECtHR has also thickened the meaning of constitutional democracy in several lines of its jurisprudence. It has developed a dense case law interpreting the right to vote and stand for election guaranteed in ECHR Protocol 1, Article 3.Footnote 278 While much of that jurisprudence specifies the contours of the individual right, some of this jurisprudence has started to elaborate what states must guarantee to protect the democratic order. For example, barring candidates who have committed serious constitutional violations from standing for office has been deemed by the ECtHR to be a reasonable restriction on democratic rights as has banning whole parties who are not committed to upholding the democratic order.Footnote 279 This will sound familiar to those who have followed the emerging right of democratic governance dispute from its 1990s beginnings.Footnote 280 What was once controversial in that dispute has now become law within the Council of Europe system.Footnote 281
The ECtHR is now starting to move past this familiar territory toward examining the broader institutional framework of elections.Footnote 282 It has opined that those who resolve the election disputes must be impartialFootnote 283 and has required that election complaints be handled by institutions that possess guarantees against arbitrariness.Footnote 284 While these decisions do not yet provide a full picture of how electoral institutions should be structured, the basic principles of electoral management are starting to come into focus in the jurisprudence of the ECtHR. On this point, the African Court of Human Rights is perhaps even farther along toward requiring election administration to be politically neutral.Footnote 285
Like the IACtHR, the ECtHR has been perhaps most active in cases using fair trial rights to elaborate on what it would mean for a court to be “an independent and impartial tribunal established by law,” as Article 6(1) of the European Convention on Human Rights requires.Footnote 286 The ECtHR has held that an independent court must be independent not only of the parties to the case, but also of the executive.Footnote 287 It has also found that participation by irregularly appointed judges disqualifies that tribunal from meeting the Convention requirement of being a “tribunal established by law.”Footnote 288
As is often the case with courts that see trouble coming from a long way off, the ECtHR girded for the upcoming battle with a seriously backsliding state in a December 2020 judgment defining in precise detail what it means to be a “tribunal established by law.”Footnote 289 The ECtHR did not act first in one of the most challenging states, but instead issued its landmark opinion in respect of Iceland, a clearly democratic state that formed the backdrop for the Court to put the general rules in place before the Court used them to decide a whole series of blockbuster democratic-backsliding cases involving one of Europe's most troubled democracies, namely Poland.Footnote 290 When the Polish cases started coming fast and furious, the ECtHR had to determine whether a whole series of Polish courts were tribunals established by law within the meaning of Article 6 ECHR.Footnote 291
Since coming to power in 2015, the government of Poland had waged relentless war on the country's once-independent judiciary, firing judges en masse, packing the courts with political appointees, establishing a new disciplinary chamber within the Supreme Court to punish judges whose rulings have been criticized by the government, and transferring judges to less desirable positions when they criticized the judicial reforms.Footnote 292 In Xero Flor w. Polsce sp. z.o.o. v. Poland, decided in May 2021,Footnote 293 the ECtHR addressed the composition of the Constitutional Tribunal, in which the procedure for installing several justices on the Tribunal violated the national law in effect at the time. One of those irregularly appointed judges sat on the panel that declared inadmissible the petitioner's challenge to the constitutionality of a Polish law.Footnote 294 The ECtHR determined that the petitioner's right to have a case heard by an impartial and independent tribunal established by law had been violated due to the presence of the irregularly appointed judge on his panel.Footnote 295 The decision has meant, practically speaking, that the whole Constitutional Tribunal now cannot be considered a proper court under European human rights law due to the presence of multiple irregularly appointed judges.
Decided in July 2021, Reczkowicz v. Poland Footnote 296 addressed the composition of the Disciplinary Chamber of the Polish Supreme Court. All of the judges on that court had been chosen by a newly reconstituted National Judicial Council (NJC).Footnote 297 The judges who previously served on the NJC had been fired before the conclusion of their lawful terms and new judges had been appointed to that body in an overtly political process under a law pushed through the parliament on a party-line vote.Footnote 298 Those new politically tainted judges on the new NJC then appointed all of the judges on the new Disciplinary Chamber.Footnote 299 Holding that this new system for making judicial appointments had been unduly influenced by the political branches, the ECtHR found that the Disciplinary Chamber, too, was not a tribunal established by law within the meaning of the European Convention.Footnote 300
Advance Pharma sp. z.o.o. v. Poland Footnote 301 reached the same conclusion with regard to the Civil Chamber of the Supreme Court, since many of its judges also had been named by the politically captured NJC. This time, the ECtHR went further than just finding that the Civil Chamber was not competent to provide fair trial rights and insisted that the government of Poland address the more general rule-of-law problems that stemmed from the way that members to the NJC had been appointed so that the “systemic dysfunction” that this politicized judicial-appointments process posed for the Polish judiciary could be remedied.Footnote 302
In Grzeda v. Poland, decided in March 2022,Footnote 303 and in Zurek v. Poland, decided in October 2022,Footnote 304 the ECtHR found that judges on the original NJC whose terms had been cut short in order for the government to fill the new NJC with politically tainted judges had both been denied their rights to a fair trial because there was no judicial appeal from their dismissals.Footnote 305 In addition, the ECtHR found that the free speech rights of Judge Zurek had been violated because his dismissal from the NJC had occurred for criticizing the judicial reforms.Footnote 306
The ECtHR has also issued a set of interim measures decisions in other pending cases involving the Polish judiciary.Footnote 307 Between January 2022 and February 2023, the ECtHR received dozens of interim measures petitions from judges who had been fired or reassigned to new positions without their consent.Footnote 308 Three of those cases resulted in the award of interim measures in which the ECtHR ordered that the judges be reinstated in their positions pending the decisions of the Strasbourg Court.Footnote 309 But in February 2023, the Polish government notified the ECtHR that it would refuse to comply with these orders.Footnote 310 The Polish government has also refused to comply with the final judgments of the ECtHR with regard to the flawed composition of the Constitutional Tribunal, Disciplinary Chamber, Civil Chamber of the Supreme Court, or National Judicial Council.Footnote 311 Given the obvious receptivity of the ECtHR to the Polish judges’ claims, the remaining independent judges in Poland have been creative in trying to leverage the support from the ECtHR for judicial independence.Footnote 312 In January 2023, three judges in the Warsaw Court of Appeals made a criminal referral accusing the president of their court of abuse of power for failing to comply with the ECtHR decisions on the reinstatement of judges on his court.Footnote 313 As of this writing [July 2023], the standoff between the Polish government and the ECtHR continues.
What next? The COE Committee of Ministers monitors whether ECtHR decisions are honored, not just in the narrow sense in which the offending government pays the petitioner a fine assessed by the Court, but in the broader sense in instances in which the country in question must modify its laws to prevent repeat violations.Footnote 314 But while the Committee can exhort the offending country to comply as well as to name and shame it, its last resort is to suspend the country's participation in COE institutions or to expel the country from the COE altogether.Footnote 315 Because these are such draconian sanctions, they are very rarely used. In addition, the COE now has so many democratic backsliders and even outright autocracies in its midst that any sanction that depends on the agreement of a majority of Member States is likely to break in favor of the autocrats unless the violations are truly egregious.Footnote 316 The COE has become an important standard setter but it cannot reliably enforce these standards on its own.
Enter the European Union, which has much stronger enforcement powers. The relationship between the COE and the European Union is conceptually difficult and legally fraught, however.Footnote 317 On one hand, all EU Member States are members of the COE and all EU institutions are bound to honor the European Convention on Human Rights.Footnote 318 On the other hand, the EU itself is not a COE member or a signatory to the ECHR and thus its institutions—including most importantly the European Court of Justice (ECJ)—are not formally bound by either the Convention or the ECtHR interpretation of it until such time as the EU formally accedes.Footnote 319 Usually, this formal legal tension between the two systems is invisible because the ECtHR and ECJ tend to reference and honor each other's decisions even when they are not compelled to do so by law.Footnote 320 But as democratic backsliding in Europe—otherwise known in the EU as the “rule of law crisis”—has accelerated, the two European transnational organizations have taken different, and in some ways incompatible, courses of action.Footnote 321
When Hungary began its short, sharp descent from democracy to autocracy after Prime Minister Viktor Orbán was elected in 2010 with a constitutional majority,Footnote 322 the European Commission did very little.Footnote 323 When the Hungarian government fired the most senior 10% of the judiciary by lowering the retirement age for judges, effective immediately, the European Commission brought its first and to date only infringement action against Hungary for assaults on the judiciary, arguing that Hungary had violated EU secondary law against age discrimination.Footnote 324 The ECJ agreed, but since the action was brought as an anti-discrimination case rather than as a case about the independence of the judiciary, the remedy was compensation to (but not reinstatement of) the affected judges.Footnote 325 The Commission's first foray into trying to stop Viktor Orbán's consolidation of power failed miserably since Orbán only had to pay off the judges he fired and, in exchange, he got to keep the judiciary he captured.Footnote 326 Because the ECJ decision hinged on interpretation of equality law, the Court said nothing to shore up judicial independence in general.Footnote 327 It did not decide this first judicial independence case as a democracy case.Footnote 328
The European Commission was faster to act when Poland started its sprint down the road to autocracy after the election of Law and Justice Party candidates to the presidency and then to majorities in both houses of parliament in 2015.Footnote 329 The Polish government began with an illegal assault on the Constitutional Tribunal, followed first by a radical change in the system through which judges were appointed, then by a drop in the judicial retirement age in imitation of Hungary and finally by a new system for disciplining judges who criticized the government (or who brought cases to the ECJ seeking outside assistance in standing up to autocracy).Footnote 330 Across many different laws, the Polish government launched a broad-ranging effort to destroy the independence of the judiciary.Footnote 331 As we have seen, the Court of Human Rights rose to the challenge and found that both the captured courts and the composition of the body that appointed the judges violated the European Convention and the ECtHR has refused to recognize either of these bodies or their decisions as lawful.Footnote 332
By contrast, the ECJ, the EU's highest court, has been far more circumspect in the way it has handled the situation.Footnote 333 Not that the ECJ and the ECtHR disagree over whether the Polish government's actions compromise the independence of the judiciary! Both the ECJ and the ECtHR were clearly alarmed and tried to address the situation.Footnote 334 But the powers that the two courts could wield was different for reasons hard-wired into the structure of the transnational organizations whose courts they are. While the ECtHR is a free-standing court reachable by rights-holders who have exhausted remedies in the state that has allegedly infringed their Convention rights, the ECJ may be more powerful in the ways it can enforce its judgments, but it has more limited ways in which its powers can be invoked within the EU treaty framework.Footnote 335
Given these differences, the ECtHR was free to say that Polish courts did not meet the standards of properly constituted tribunals, as indeed they do not.Footnote 336 Individuals affected by these dubious Polish courts could still bring cases to the ECtHR which could say again and again that the courts in question were not really courts. But the ECJ cannot be reached directly by individuals whose EU-law rights have been violated through Member States’ laws, except indirectly.Footnote 337 Instead, the ECJ is generally limited to hearing infringement (enforcement) actions brought by the European Commission against rogue Member States and to deciding preliminary reference cases brought by national judges who need a point of EU law clarified before they can decide the cases before them in the national courts.Footnote 338 If the ECJ finds that the courts from which some still-independent judges are still sending preliminary references are not properly courts under EU law, then the ECJ cannot take their reference questions any longer because the ECJ is limited to receiving such questions from properly constituted tribunals.Footnote 339 Finding that any of Poland's courts were improperly constituted would therefore cut the ECJ off from being able to address the questions sent by any of these courts’ judges, including the ones who had resisted the political pressure to conform.Footnote 340 Therefore, the ECJ has made the strategic decision not to question whether the compromised courts in Poland are properly constituted judicial bodies.Footnote 341
The most straightforward way for cases challenging the structural features of Member States’ institutions to get to the ECJ is for the European Commission or an EU Member State to bring infringement actions challenging what the backsliding states are doing to their courts.Footnote 342 But in the last 20 years, as the rule of law crisis was worsening, the Commission radically reduced the infringement actions it has brought to the Court of Justice.Footnote 343 Over the seven years during which the attacks on Polish courts have been relentless, the European Commission has brought a grand total of five infringement actions covering, at best, only part of what Poland has done to bring the judiciary to political heel.Footnote 344 After that one infringement action against the Hungarian government for lowering the judicial retirement age, the Commission brought no other infringement actions against Hungary for destroying the independence of its judiciary over the next decade.Footnote 345 The other Member States who had the power to launch enforcement actions at the ECJ brought no cases at all to stop democratic backsliding.Footnote 346
That said, in the few cases in which the European Commission has filed an infringement action against a Member State for violating basic rule-of-law principles, the Court of Justice has risen to the occasion and found against the Member State in every infringement action that the Commission has brought to it thus far.Footnote 347 With regard to the Polish assaults on the judiciary, first the ECJ found that lowering the judicial retirement age violated judicial independence and not just the principle of age discrimination, both in the Supreme CourtFootnote 348 and in the lower courts.Footnote 349 Then the ECJ found that the law permitting disciplinary procedures to be brought against judges who brought preliminary references to the ECJ violated EU law.Footnote 350 Then the ECJ held that the Disciplinary Chamber of the Supreme Court did not provide sufficient procedural guarantees for the judges who were disciplined by that body and so determined it should cease functioning.Footnote 351 After a long delay, the Commission brought an infringement action against Poland for trying to prevent its judges from criticizing the judicial reforms, a case it eventually won.Footnote 352 In February 2023, the Commission belatedly brought an infringement action against Poland with regard to the Constitutional Tribunal, which had been fully captured by the end of 2016 and found not to be a tribunal properly established by law by the ECtHR in 2021, but which was still operating as usual.Footnote 353 Instead of challenging the composition or capture of the Court, however, the Commission only challenged two of the Constitutional Tribunal's rulings that refused to follow EU law.Footnote 354 Even when the ECJ agrees with the Commission in this case, as it almost surely will, nothing in this ruling will prevent the Constitutional Tribunal from operating in its presently captured state. Obviously, these five infringement cases have not done enough, fast enough, to protect the judiciary.Footnote 355
The ECJ has tried to offer additional protection to the Polish judiciary by using the preliminary references which have been sent, like messages in bottles, from the still-independent judges who write from their shipwrecked courts torn apart on the open sea of autocracy.Footnote 356 In preliminary reference cases, judges stop the action in the case before them to refer to the ECJ one or more questions involving the interpretation of EU law and then proceed in the individual case on the basis of the answers they get from that Court.Footnote 357 In one case after another, the ECJ has generally admitted these preliminary references and tried to rescue Polish judges by supporting their claims.Footnote 358 In A.K.,Footnote 359 the ECJ opined on the question of how a national court could recognize whether the National Judicial Council had been politically captured and set out a test through which the Disciplinary Chamber filled with judges that the NJC had appointed could be deemed not a lawfully constituted body.Footnote 360 In A.B.,Footnote 361 the ECJ ruled that judges must be guaranteed independent judicial review of decisions that refused their appointments to the Supreme Court. In W.Z.,Footnote 362 the ECJ found that the secondment of judges to other courts required oversight enforced by an impartial and independent body. In W.B.,Footnote 363 the ECJ held that involuntary reassignment of judges was a violation of judicial independence guaranteed under EU law. There are too many pending reference cases before the ECJ to count, each challenging one piece or another of the Polish judicial “reforms.”Footnote 364 In case after case, the ECJ has largely sided with and backed the remaining independent Polish judges.Footnote 365
One can quibble with the details of the way that the ECJ has handled these cases.Footnote 366 But there can be no doubt that the Court of Justice has built up a formidable case law defending judicial independence. It has done so without the words “judicial independence” appearing in the EU's treaties. The ECJ has built this dense jurisprudence out of the Article 2 TEU's guarantee that all Member States honor the rule of law, bolstered by the Article 19(1) TEU requirement that all Member States to provide effective remedies for violations of EU law, topped off by Article 47 CFR which provides an individual right to a fair trial.Footnote 367 The ECJ has built a legal structure that now requires and protects the independence of judges by constraining what states can do within their own national constitutional order to reorganize the judiciary.Footnote 368
Even with this impressive jurisprudence, however, both Poland and Hungary have continued the slide into autocracy. Poland has refused to honor the decisions of the ECJ—just as it is refusing to comply with decisions of the ECtHR—and it has been being fined €1 million/day for refusing to observe the interim measures ordered by the ECJ concerning the Disciplinary Chamber.Footnote 369 Hungary's judiciary has been seriously compromised, without a single new infringement action launched by the European Commission,Footnote 370 and the Hungarian government has clearly taken the view that none of the ECJ's judgments concerning Poland have any relevance for its actions.Footnote 371
Unlike the Council of Europe, however, which got stuck at this stage without a good way to enforce the jurisprudence of its Court on democratic governance or judicial independence, the EU has developed more enforcement powers. For years, momentum had been building up in Union institutions and among European Union Member States for another way to force changes in national law to meet European standards. The focus shifted to making the distribution of EU funds conditional on democratic reforms in the EU Member States that had gone rogue.Footnote 372
The Conditionality Regulation that explicitly permitted the withholding of EU funds allocated to Member States if those funds risked being corrupted went into effect on January 1, 2021 and the process to suspend funds under this legal authorization was initiated against Hungary in April 2022, culminating in a suspension of €6.3 billion in December 2022.Footnote 373 As it turns out, other forms of “conditionality” that make the distribution of EU funds contingent on bringing national institutional arrangements into compliance with EU law were being quietly added to other regulations going through the legislative process at the same time.Footnote 374 Conditionality clauses were added to the Recovery and Resilience Fund that was created to enable EU Member States to recover from the economic devastation wrought by CovidFootnote 375 and a requirement that EU funds be spent in ways that do not violate the Charter of Fundamental Rights was added to the regulation governing the distribution of all funds allocated under 2021–2027 EU budget.Footnote 376
The conditionality clauses in all three of these regulations were suddenly combined late in 2022 to create something like an enforcement regime applied against EU Member States that had turned their backs on democratic forms of governance.Footnote 377 The Conditionality Regulation— after being blessed by a pair of decisions of the Court of JusticeFootnote 378—finally permitted the Council on recommendation of the Commission to withhold funds from Member States whose rule of law violations threatened the proper spending of EU funds. Hungary's funding suspensions under the Conditionality Regulation were authorized in December 2022.Footnote 379 In addition, the “Recovery and Resistance Plans” (RRPs) that all Member States were required to submit to receive money from the Recovery and Resilience Fund (RRF) were approved for Poland and for Hungary with strings attached that required both to restore the independence of their judiciaries under the supervision of the EU before they would receive the money.Footnote 380
Once the Council adopted the European Commission's recommendations and withheld funding to Hungary under both the Conditionality Regulation and the Recovery Regulation and to Poland under the Recovery Regulation, the Commission went ahead and froze all Cohesion Funds (funds allocated to a number of projects to enable the poorer EU states to catch up to the wealthier ones) for both Member States, given their violations of the Article 47 of Charter of Fundamental Rights that establishes fair trial rights requiring an independent judiciary, among others.Footnote 381
Under these various legal authorities, the European Union withheld nearly €30 billion from Hungary and more than €110 billion from Poland because of their attacks on independent judiciaries and, in the case of Hungary, also because its institutions guaranteeing transparency and accountability in the spending of public funds are corrupt.Footnote 382 Withholding such large sums of money obviously creates a substantial incentive to do what it takes to spring the money loose. Since the Court of Justice emphasized that withholding money from Member States was justified in order to protect the EU budget and not as a punishment of the Member States in question,Footnote 383 one cannot discuss the withholding of funds strictly speaking as a “sanction” for destroying democracy. However, the fact that the Commission is withholding the funds conditional on proof of substantial and real democratic reforms on the part of the Member States in question creates substantial and real pressures on them.
The recent suspension of substantial funding streams to two of the worst offenders among backsliding democracies within the EU legal framework creates an important milestone in the history of the right to democratic governance. The EU is now using its funds as leverage for democratic change in Member States.Footnote 384
Considering the legal instruments and the jurisprudence, particularly in the regional human rights courts, against the backdrop of the “emerging right to democratic governance” debate, we can see just how far we have come in the last 30 years since that debate was first triggered. Democracy, human rights, and the rule of law are now the privileged trio of commitments in wide swaths of international law, some of it directly legally enforceable. The Right to Democratic Governance 2.0 exists when an enforcement regime with real bite pushes countries back to a democratic path.
But international legal principles do not have to be directly legally enforceable to have an important effect. As we saw in the democratic transition of Hungary in 1989, international law can be deployed by democrats within political transition processes to promote democratic institutions and values.Footnote 385 Armed with this new round of democracy-supporting international law, we can already see how aspirational democrats can restore democracy within backsliding states using this international law as a resource.
V. Restoring Democracy Through International Law: Guiding the Next Democratic Transition
In 2022, six Hungarian democratic-opposition parties joined together to make a concerted effort to defeat Viktor Orbán, who was standing for his fourth consecutive election as Prime Minister of Hungary.Footnote 386 Given the details of the Hungarian electoral system,Footnote 387 only one path gave them a chance to win. The six parties had to agree on putting only one candidate forward against the Orbán-supported candidate in each electoral district and convince their party supporters to vote not only for those candidates but also for a unified party list that contained candidates from across the political spectrum.Footnote 388 It was not an easy sell. At the last minute, seeing that the democratic opposition was disciplined enough to potentially pull off a victory, Orbán changed the election rules again.Footnote 389 Suddenly any voter could register to vote in any district in the entire country, a change that permitted Orbán to move his voters out of the few districts that the opposition would surely win into the districts that were close.Footnote 390 Orbán won in a landslide.Footnote 391
In thinking about how six parties with such different political views could campaign together before they went down to defeat, however, the democratic opposition agreed to disagree about virtually all matters of policy.Footnote 392 They agreed only on a plan for how to restore democracy and the rule of law if they won.Footnote 393 As in 1989, they insisted on a “rule of law revolution.”Footnote 394 And, as in 1989, this transition would gain some of its legitimacy by maintaining legality throughout the process of moving autocracy to democracy.
The question was how to do it. Unlike in 1989, when the communist party voluntarily agreed to free and fair elections in which they could (and did) lose and cede power, Orbán would almost surely not voluntarily leave the public stage even if he lost an election.Footnote 395 Unlike in 1989, when the autocratic party was willing to support a liberal and democratic constitution, Orbán's 2012 autocratic constitution was not up for negotiation with liberals and democrats.Footnote 396 Unlike in 1989, when supporters of the autocratic regime were few and far between, Orbán can still generate mass rallies and overwhelming (even if rigged) votes.Footnote 397 Unlike in 1989, when very little of the new structure was entrenched because the constitution was new, Orbán's party by 2022 had locked in most of the constitutional institutions (both structures and people) through a decade's worth of laws that required a two-thirds vote to change.Footnote 398 Even if the opposition parties, working together, could defeat Orbán, there was no conceivable way under the rigged election rulesFootnote 399 that they could gain a two-thirds majority to legally alter the heavily entrenched constitutional order that Orbán had created.Footnote 400
But this is where the democratic opposition in 2022 took a page from their 1989 playbook. They turned to international law to provide a North Star to guide them through the transition.
During the campaign, the democratic-opposition leadership appointed a committee of legal experts to draft a plan for restoring both democracy and the rule of law after an election victory.Footnote 401 Headed by sociologist of law and constitutional expert Zoltán Fleck, this committee developed a program that could be put into effect if the democratic opposition won the election.Footnote 402 The program identified what could and should be changed by a simple majority and what could simply be fixed by forbearance in which the democratic opposition, once in government, would simply refrain from doing legally permissible but anti-democratic things.Footnote 403 The goal was to create a democratic transition without violating the rule of law.
But what to do with the very large number of two-thirds laws and constitutional provisions that would require a supermajority to change? Given the electoral system, a supermajority was beyond reach. What, therefore, could a new simple-majority government do with this deeply entrenched, detailed system of laws that acted like a prison preventing any new government from changing the rigged structures as long as the Fidesz party that built the prison retained a mere one-third of the parliamentary mandates?
As in 1989, the constitutional experts turned to international law.Footnote 404 Half of the pages in the draft plan (all of the elaborate Appendix 2 in fact) were devoted to analyzing the relevant treaties that Hungary had signed and the legal obligations that these treaties imposed.Footnote 405 The plan's drafters leaned heavily on these treaty obligations in making lists of laws that needed to be changed and institutions that needed to be rethought because the treaties gave them a rule of law way out of the national legal prison.Footnote 406 The constitution—even the Orbán constitution—placed international law hierarchically above national law (though not above the constitution).Footnote 407 Even the two-thirds laws, then, should have been voidable when they came into conflict with international legal obligations. Of course, the most far-reaching and all-encompassing legal obligations arose from Hungary's memberships in the European Union and Council of Europe.
The EU obligations were relatively easy, legally speaking. EU has primacy over national law in the subject areas that have been delegated to it, but the Orbán government was not in compliance with many EU law requirements, most notably those pertaining to the independence of the judiciary.Footnote 408 While the European Commission had failed to bring infringement actions against Hungary for its attacks on the judiciary, Hungarian democrats could draw from the parallel jurisprudence from Poland and other Member States that elaborated what judicial independence requires.Footnote 409 While it was still a delicate subject among formalist lawyers about whether one could amend two-thirds laws (as the laws on the judiciary all are) with a simple majority, following EU law could give them a special reason to violate the national procedural rule in the name of the rule of law.Footnote 410 Reorganizing the judiciary to ensure its independence would require a serious set of changes that the new majority's strength in the parliament could not reach if the matter were simply conceived of within national law. But if an independent judiciary is required by EU law, then violation of the two-thirds national rule for changing the judiciary could be justified in order to bring Hungary into compliance with its transnational commitments, something also required under Hungarian law.Footnote 411 In short, EU law provided a good way to argue that it was justifiable to break the national rules under which a two-thirds majority would be required when such an action would be necessary in order to comply with EU law.Footnote 412 This could be distinguished from what the prior government did when it moved Hungary into autocracy because their questionable legal changes moved the country away from increasing harmonization with the European rule of law while the new government's proposals would not. Even if the rule of law writ small (that is, simply considered at national level) would be violated if the new democrats used unconventional legislative procedures to enact the new laws, the rule of law writ large (that is, harmonizing across the various binding levels of law) would be honored if they did so.
While EU law claims primacy over national law, other treaties that Hungary had signed onto did not require primacy in their own terms. For these other treaties, Hungarian law offered a formalist solution about how to proceed. The most important treaties giving rise to human rights and democratic governance obligations, for example the European Convention on Human Rights, had been adopted by two-thirds votes of the parliament.Footnote 413 A number of two-thirds laws of the Orbán government therefore conflicted with treaty obligations that had also been adopted by a two-thirds majority, which gave rise to a conflicts of laws problem within the Hungarian legal order.Footnote 414 Given the hierarchical superiority of international law under the Fundamental Law, the domestic conflicts problem could be resolved in favor of the international legal obligations.Footnote 415 Harmonizing the law in this way could justify exceptions to the usual procedural rule that two-thirds laws could only be changed by supermajorities.Footnote 416 In these special cases where national law and European law conflicted, one might argue that a simple majority could eliminate the conflict because the national constitution required it.Footnote 417 While normally violating national procedural rules is a sign that the rule of law is being broken, violating national procedural rules in order to bring the national legal system into compliance with its international legal obligations can be seen as honoring a wider view of the rule of law—the rule of law writ large. While the solution is not ideal because the situation is not ideal, justifying a break with national law in order to follow international law is not in itself lawless.
Because Hungary is not in compliance with a number of decisions of the ECtHR, a new democratic parliament could use the Strasbourg Court's decisions to override conflicting national two-thirds laws. This could permit Hungary to dismantle the secret and discretionary surveillance system,Footnote 418 to strengthen the protections of the free speech rights of judges,Footnote 419 to restore the independence of religious organizationsFootnote 420 and to strengthen control over and remedies for police abuse.Footnote 421 And those were just the decisions already made against Hungary by the ECtHR.Footnote 422 Deriving other obligations from the general principles that the ECtHR had developed in cases coming from other signatory states, a new democratic Hungarian parliament could use those cases—for example, the Polish cases from the ECtHR on judicial independence—as additional reason to modify Hungarian law by simple majority.Footnote 423 Each of these changes would move the new democratic Hungarian government away from autocracy and toward a robust view of constitutional democracy. Even though bringing Hungarian law into compliance with international legal obligations could require violating national rules about the relevant majorities required for amendment of these laws, a new democratic parliament could argue that harmonizing Hungarian law with international law provided a specific and detailed justification for breaking the procedural rules in those specific cases.
Democratic transitions are delicate moments. In retrospect, the 1989 changes were easy—at least legally speaking—because the forces of autocracy simply gave up and agreed to enter a democratic order in which they stood for elections that they could—and did—lose. The new autocrats we are living with now, however, show no signs of going anywhere. If democratic transition is going to occur in these countries, it is going to happen over pitched resistance of the new autocrats and their supporters. As a result, the national democrats will need to persuade their national publics that restoring democracy by relying on international law to overcome domestic legal barriers is both desirable and justifiable. The new international law that we have reviewed in this article provides a principled and rule-of-law-honoring way to move entrenched autocracies back toward democratic governance. The existence of this new international law provides a basic framework for national democrats to use in arguing that they are honoring and not violating the rule of law when the move their countries along this path. The Right to Democratic Governance 2.0 now provides an increasingly detailed road map to guide aspirational democrats toward restoring democracy.
In the end, as some democracy promoters have only learned recently,Footnote 424 democracy cannot be imposed from the outside. It must be embraced by those within a country who believe that only democratic governments can preserve peace, human rights, and the rule of law in order to make life better for their citizens. But international legal resources can help aspirational democrats distinguish themselves from the aspirational autocrats who also won elections and then changed the law. Changing the law to bring a country into compliance with international law is fundamentally different from changing the law to move a country away from those principles. The aspirational democrats’ efforts to reform the constitutional system that they inherited can therefore be easily distinguished from autocratic capture.
International law has the advantage of acting like a North Star for those involved in democratic transitions—showing the way while being outside the reach of any of the parties to a national transition to modify or bargain away. International law principles become rules of the game closed to domestic players to change and therefore they can become a stabilizing force in democratic transitions. International organizations and international courts have already laid down some clearly helpful principles about judicial independence, term limits for executives, and even the independence and impartiality of election officials. This is not a complete blueprint for democracy, but these rules establish crucial elements of any democracy worthy of the name. The resources for restoring democracy through international law are growing by the day, as you can see from the dates on the cases and other international law instruments cited in this lecture. This lecture is current as of June 2023, but who knows how many new resources will be available by the time you read this.
For those of us who care about the future of democracy and about building the resilience of international law in an era of democratic backsliding, the best thing we can do is to continue to develop new international resources that would define and sustain the institutional building blocks of democratic government. It has been painful to watch democracies slip into autocracy during this democratic recession. As we have learned from long experience, however, democracy can only be built from the inside. Now that we can see how aspirational democrats inside damaged democracies can use the resources of international law to guide their transitions back to democracy, the most constructive thing we can do from the outside is to construct even more resources within international law for them to use so that these resources are available when the aspirational democrats need them.
I am honored to discuss Professor Kim Lane Scheppele's Grotius Lecture. I convey my gratitude to Gregory Shaffer, President of the American Society of International Law, and Padideh Ala'i, Director of the International Legal Studies Program of American University's Washington College of Law, for inviting me to comment on the lecture of an intellectual that I have admired since I first met her at a seminar on the hardest issues coming to the chambers of constitutional judges.
In her superb lecture, Professor Scheppele raised an immense challenge to international law and to all of us lawyers.Footnote 1 I further argue that we must take up the challenge and prepare to endure frequent setbacks. As Winston Churchill reminded us, “success consists of going from failure to failure without loss of enthusiasm.”Footnote 2
Professor Scheppele is aware of the vicissitudes in any transformative endeavor worth the struggle,Footnote 3 as was Hugo Grotius.Footnote 4 Both decided to confront intolerant arbitrary power, a salient feature of authoritarian governments.Footnote 5 Grotius defied a prince in Holland who sided with the strict Calvinists, the so-called Gomarists.Footnote 6 Professor Scheppele has an impeccable record in defense of pluralism, tolerance, and liberal democracy, notably in Hungary and Poland.Footnote 7
The parallel goes beyond opposing arbitrary power. Both Grotius and Professor Scheppele believe in the transformative power of innovative legal arguments that may become the law in the future, just as Grotius, though at the time unsuccessful, advocated for freedom of the seas against the English.Footnote 8
Will history also favor Professor Scheppele? I hope it does. And soon. It depends partly on us lawyers. Who would have imagined that in Latin America, international law would play a democratization role? Yet, it has. I would like to share the broad lines of this story in support of her vision.
Professor Scheppele rightly highlights the use of innovative economic sanctions in Europe by introducing conditionalities that tie to the basic principles of the rule of law and democracy.Footnote 9 Hopefully, the economic sanctions are successful there. However, in Latin America, they have not worked.Footnote 10 The paradigmatic examples are Cuba and Venezuela, each in two very different historical contexts.Footnote 11 Two common factors help explain their failure: (i) the political manipulation of economic sanctions at the internal level to stoke nationalism; and (ii) the help of a great external power that eases the impact of sanctions and offers political and military support in case of geopolitical conflict.Footnote 12 Two other factors that can be included are the selective use of corruption of internal actors to elicit their support to the anti-democratic regime and the expulsion or imprisonment of political opponents.Footnote 13
Apart from economic sanctions, the experience of Latin America has a lot to contribute. Thus, I will focus on the work of judges, especially from the Inter-American Court of Human Rights,Footnote 14 and on international human rights law.
How can international law contribute to democracy? Professor Scheppele proposes three ways: “to prevent [their] domestic institutions from falling victim to anti-democratic forces . . . to free damaged domestic institutions from autocratic capture once autocrats have locked in their power by law,” and to “help democrats within backsliding countries to replace autocratic and abusive law with democracy-honoring law as a way of signaling respect for the rule of law.”Footnote 15
The Latin American experience offers interesting examples of these functions of international law. The region where I come from is not an admirable example of democracy and respect for the rule of law.Footnote 16 Latin America has been fertile ground for dictatorships, populisms, guerrilla movements, criminal organizations, terrorist actors, and all kinds of corruption.Footnote 17 Furthermore, it is marked by structural problems of social exclusion, extreme inequality, weak domestic institutions, as well as hyper presidentialism and attacks on judicial independence.Footnote 18
There lies its appeal. It is a region with great experience in something bad: in threats and attacks on democracy. The threats and attacks have been ongoing since the first wave of democratization in the 1980s.Footnote 19
International human rights law has played a constructive role in Latin America in resolving the most serious structural problems.Footnote 20 The experience in each country has been different with both progress and setbacks.Footnote 21 However, an overview offers a surprising picture.
In this discussion, I will first outline the distinctive characteristics of the Inter-American Court's approach towards democratization in Latin American that has prompted the Court's unanticipated role in the region. Second, I will review four areas in which the decisions of the Court have contributed to democratic restauration in Latin America. Third, I will highlight factors that have enhanced the Court's impact. Finally, I will endorse Professor Scheppele's invitation to us lawyers.
I will not dwell on the details of the legal arguments, but on elements of the context and on the impact of international law beyond the specific case. In my experience, paradoxically, giving weight to these extra-legal elements is essential to enhance the role of law and its ability to constructively influence the restoration of democracy. I distance myself from those who look at the political context and conclude that the law must stay out of extremely complex problems. But I also distance myself from those who consider that taking the context into account implies sacrificing legal principles. The great difficulty lies in finding the balance so that reading the context leads to enhancing the role of law.
I. The Court's Approach
As I know that we, Latin Americans, tend to fall into the naïve belief that the solution to a problem is to adopt a new legal rule, I quote the opinion of Armin von Bogdandy, Director of the Max Planck Institute for Comparative Public Law and International Law, in Heidelberg, Germany. He has developed several research projects on transformative constitutionalism in Latin America,Footnote 22 a phenomenon that started several years before the well-known case of South AfricaFootnote 23 but had not been conceptualized as such in the region.Footnote 24
On 18 July 1978 the American Convention on Human Rights entered into force. Forty years later, it has become the cornerstone of Latin American transformative constitutionalism. Worldwide, the Convention is perhaps the most important international instrument of this nature, which begs the questions of how such an extraordinary development became possible.Footnote 25
The Convention became an important international instrument of transformative constitutionalism due to a mix of very diverse factors.Footnote 26 One of the factors is that the judicial interventions of the Inter-American Court have distinctive characteristics.
First, the judges of the Inter-American Court take context very seriously. The individual facts of the case are considered an expression of that context.Footnote 27 Second, the context is analyzed as a reflection of systemic failures.Footnote 28 Third, the remedies adopted by the Court seek an impact beyond the specific caseFootnote 29 and may require legal and constitutional reforms.Footnote 30 Fourth, the Court seeks, in the words of Professor Scheppele, to maintain democracy restored and discourage anyone from succumbing to authoritarian temptations again.Footnote 31 This fourth characteristic was eloquently synthesized in the Argentine expression “Nunca Más” (“never again”), which was the name of the final report of the truth commission chaired by the writer Ernesto Sábato.Footnote 32
II. Important Pro-democratic Interventions of the Court
I will briefly refer to four areas in which the Inter-American Court has intervened to restore democracy: impunity of agents of authoritarianism, assault on judicial independence, restrictions to media freedom and barriers to competitive elections. I will conclude with a few reflections on the impact of its judgments.
A. Against the Impunity of Authoritarianism
As is well known, most Latin American countries have been governed for prolonged periods by military dictatorships.Footnote 33 During the transitions to democracy in the mid-1980s, laws were adopted in different countries to prevent dictators or members of military juntas from being tried and condemned.Footnote 34 The Inter-American Court has consistently held that these types of laws are contrary to the American Convention of Human Rights.Footnote 35 In 2001, this belief was made clear in the Barrios Altos judgment by the Inter-American Court.Footnote 36 The judgment prevented President Alberto Fujimori's Administration from implementing a new self-amnesty law in Peru.
How seriously has the Inter-American Court taken the “Never Again” admonition? Very seriously. In 2011, in Gelman v. Uruguay,Footnote 37 the Court declared an amnesty law contrary to the American Convention. The peculiarity in this case resides not in its authoritarian origin but in the opposite: the law had been endorsed in a referendum (in 1989 that aimed but failed to derogate the law) and a plebiscite (in 2009 that aimed but failed to approve a constitutional amendment that would have deprived retroactively the law of any effect).Footnote 38 The amnesty law had been endorsed in two 1988 rulings of the Supreme Court of Uruguay as an amnesty law after the transition to democracy,Footnote 39 but it was then unapplied in three cases.Footnote 40 The democratic pedigree of the law was unquestionable.Footnote 41 However, for the Court, never again meant never again.
The staunch defense of the principle that human rights violations by authoritarian governments cannot be forgiven fulfills a democratic function: it not only prevents key actors of dictatorships from remaining unpunished, but also sends a clear message to those who in the future ponder falling into authoritarian temptations.Footnote 42
Inter-American jurisprudence in this matter has had an impact beyond democratic transitions. It has been decisive in establishing the minimums that must be respected in peace processes, that is, in transitions from armed conflicts to national reconciliation. In Colombia, establishing minimums was crucial, as was the Rome Statute and the International Criminal Court. In a peace agreement signed in 2016 with the Fuerzas Armadas Revolucionarias de Colombia (“Revolutionary Armed Forced of Colombia” or “FARC”), which for the last half a century was the largest and most powerful guerrilla group in Colombia,Footnote 43 the parties established that serious crimes involving violations of international law could not be granted amnesty.Footnote 44 The heads of the guerrilla group agreed to create a transitional justice system that would try and sentence them for crimes against humanity and war crimes.Footnote 45 Said agreement on transitional justice begins by citing the concurring opinion in the decision of the Inter-American Court on the Massacres of El Mozote, in El Salvador.Footnote 46 In this ruling, amnesty for the crimes committed during the massacres was declared contrary to the American Convention, many years after the armed conflict had ended through a peace agreement.
Let us pause to appreciate what this agreement reflects about the impact of international law within transitions to peace: guerrilla leaders accept that international rules must be respected as a prior step to be able to rejoin civilian life and consequently agree not to receive amnesty for international crimes. It is also significant that the same transitional justice applies to the military who face judicial proceedings related to war crimes and crimes against humanity. I can attest that this was not an imposition of the civilian government.Footnote 47 It was a conclusion that was reached after long hours of analysis with the high military command on the importance of taking seriously the jurisprudence on “Nunca Más,” even if it was not strictly applicable. In Colombia, the soldiers acted under democratically elected governments and have accepted to be subject to civilian power since the late 1950s.
All the rules of implementation and development of the peace agreement have been judged by the Constitutional Court.Footnote 48 The judgments of the Inter-American Court, like the pronouncements of the International Criminal Court, were widely cited by the Constitutional Court.Footnote 49 This gives greater strength to transitional justice in Colombia because it has passed through a denser and stricter filter.Footnote 50 It is pertinent to emphasize that in October 2021, the prosecutor of the International Criminal Court decided to close the cases against Colombia due to the proper functioning of the transitional justice system, which has already charged former guerrilla chiefs and some military commanders of committing crimes against humanity and war crimes.Footnote 51
The United Nations (“U.N.”) Security Council has played a key role with respect to the Peace Agreement: it gave unanimous support to the agreement soon after it was signed.Footnote 52 Then, the U.N. sent a verification mission and received periodical reports concerning the implementation of the agreement.Footnote 53 The Council also approved that the U.N. would assume the responsibility of verifying on the ground compliance with the sanctions imposed by the Special Jurisdiction for Peace.Footnote 54 International law is gradually cementing peace without impunity in Colombia.
Professor Scheppele stresses that in our times autocrats are more subtle and strategic.Footnote 55 Gradually, they are suppressing judicial independence and media freedom, closing the political process, and changing electoral rules to perpetuate themselves in power.Footnote 56 This gradual detriment to a country's democracy is happening without affecting the appearance of liberty, as citizens can continue walking down the street enjoying an ice cream.Footnote 57
B. Guaranteeing Judicial Independence
In Latin America, we have witnessed numerous attacks on judicial independence, but the Inter-American Court has intervened to try to stop them.Footnote 58 Professor Scheppele has rightly referred to the cases of Peru and Ecuador.Footnote 59 I limit myself to adding that in Peru the intervention of the Inter-American Court in 2001 led to the return of the three justices of the Constitutional Court who had been illegally expelled from their position for having dared to take decisions contrary to President Fujimori's plan for a third re-election.Footnote 60
When President Fujimori attempted a third re-election, the Constitutional Court prevented him from doing so.Footnote 61 At the request of the bar association, the Peruvian Court declared inapplicable the so-called law of “authentic interpretation” of the Constitution, through which Congress considered that Fujimori's first term, between 1990 and 1995, should not be counted to apply the rule according to which only one re-election was admissible.Footnote 62 The three magistrates responsible for the decision were dismissed in a kind of impeachment.Footnote 63 The other four members of the Court were not dismissed because they did not participate in the decision after they had recused themselves for having taken a public position on the validity of the law.Footnote 64 The Inter-American Commission ordered their reinstatement,Footnote 65 but the government did not comply.Footnote 66 The Inter-American Court protected the independence of the Peruvian Constitutional Court and ordered the payment of compensation to the expelled justices and their reinstatement to the Constitutional Court.Footnote 67
In Ecuador, after enormous political controversies and partial compliance with the judgments of the Inter-American Court, the evolution of the democratic process led to the formation of a new National Court of Justice and a new Constitutional Court.Footnote 68 In a referendum, the Ecuadorian people decided that a special commission should appoint new magistrates for a new stage of democracy.Footnote 69 Both Courts have preserved their independence after the referendum.
In other countries, the interventions of the Inter-American Court have not been sufficient to protect judicial independence.Footnote 70 In Venezuela, provisionally appointed judges were arbitrarily removed from office.Footnote 71 In 2011, the Court ordered their reinstatement and developed important principles to protect judicial independence.Footnote 72 However, the general deterioration of the situation in Venezuela has swept away judicial independence and democratic liberties.Footnote 73 In the case of Venezuela, the Inter-American Court, as well as other powerful actors, were unable to stop the erosion of democracy.Footnote 74 By this point, Venezuela could not continue being part of the American Convention on Human Rights.Footnote 75 In 2012, Venezuela denounced the Convention and withdrew from the jurisdiction of the Court.Footnote 76 It could not even keep up appearances.
C. Protecting Freedom of the Press and the Media
The other indispensable check on power in a democracy is the free media. It has been attacked in Latin America and continues to be.Footnote 77 But the Inter-American Court made it clear early on that it would defend this pillar of democracy.Footnote 78 In Advisory Opinion OC-05/85, the Court held that journalists could not be subjected to a prior licensing process in any form. The advisory opinion has been applied in several countries.Footnote 79
On several occasions, the Inter-American Court has held that contempt laws (“leyes de desacato”) are contrary to freedom of the press and expression.Footnote 80 These laws, inherited from authoritarian times, penalized disrespect for public officials.Footnote 81 They were extensively interpreted by national authorities to censor criticism of officials in different branches of government.Footnote 82 National courts, notably Brazil's Superior Tribunal of Justice, have applied the American Convention to strike down contempt laws that restricted freedom of expression.Footnote 83
Then, the Inter-American Court went further. It ruled against the use of criminal law to intimidate journalists or hide facts that citizens have the right to know.Footnote 84 In two cases involving Presidents of the Republic, Menem in Argentina and Correa in Ecuador, the Court gave more weight to freedom of the press than to the right supposedly affected by the disclosure of uncomfortable information or by the use of harsh words in a newspaper.Footnote 85
In the Ecuador case, some nongovernmental organizations (“NGOs”) argued that criminal law cannot be weaponized by public officials to prevent the disclosure of information on matters of public interest or silence democratic debate on such issues.Footnote 86 The Court took a step in that direction but emphasized anti-slapp measures.Footnote 87 Last year, the Court analyzed not the use, but the very existence and scope of the crime of defamation.Footnote 88 In November 2022, in Baranoa Bray v. Chile, it considered that defamation can never be applied to information or opinions on matters of public interest.Footnote 89 The Court held that “states must establish alternative mechanisms to criminal law so that public officials can obtain ratification . . . whenever their good name and honor has been affected.”Footnote 90
In the Ecuador case, the High-Level Panel of Legal Experts of the Media Freedom Coalition of States filed an amicus curiae and welcomed the decision.Footnote 91 The holding in the Baranoa Bray case embraces fully the argument made by the Panel.Footnote 92
In addition to presenting amicus curiae, the Panel has begun to perform Venice Commission-style functions by rendering opinions on bills related to freedom of the press at the request of the respective state,Footnote 93 as was the case recently in Zimbabwe.Footnote 94 The Panel has advised states on international law,Footnote 95 both in relation to existing framework for protection and addressing material gaps.Footnote 96 The Panel has issued four reports which have started to have an impact.Footnote 97 For example, the Panel issued a report on the creation of an emergency visa for journalists at risk – a recommendation that has now been taken up by numerous states, including Czech Republic, Germany, Canada, Latvia, Lithuania, Estonia, and Kosovo.Footnote 98 Nearly 1,500 emergency visas have been granted to journalists and human rights activists between 2022 and 2023.Footnote 99
As such, the Panel, alongside the Inter-American Court, have protected the freedom of the press and media in tandem, and thus furthering democratization within Latin America. The Inter-American Court has also handed down rulings that keep the political process open and competitive. It is a fourth way of restoring democracy.
D. Keeping the Electoral Process Open and Competitive
Professor Scheppele alluded to presidential re-election without term limits—the most sensitive issue. In a 2021 advisory opinion, the Inter-American Court stated that “enabling presidential reelection without term limits is contrary to the principles of representative democracy.”Footnote 100
In addition to the perpetuation in power of the same government, there are other consequences that can limit electoral competition.Footnote 101
Can a candidate independent of the traditional dominant parties compete in the presidential elections? Can a leader who has exercised opposition to the political system be disqualified from being a candidate by the imposition of a non-judicial sanction? The first question was addressed in Gutman v. Mexico,Footnote 102 and the second was addressed in Lopez Mendoza v. Venezuela,Footnote 103 but in neither of the two respective countries did the two judgments of the Inter-American Court produce as profound of an impact as they eventually did in Colombia.Footnote 104
In Colombia, both sentences were decisive for the triumph of the current president, Gustavo Petro. Since the enactment of the current constitution in 1991,Footnote 105 adopted by a popularly elected and very pluralistic Constituent Assembly,Footnote 106 the political system has opened up to such an extent that the two traditional political parties lost a significant amount of power. The two parties went from controlling ninety-two percent of the seats in the senate in 1990, to merely twenty-five percent in 2018.Footnote 107 However, Petro generated intense controversies not only for having been a member of a guerrilla group that signed peace in 1990,Footnote 108 but also for his political positions.Footnote 109 When he was mayor of Bogotá, a disciplinary sanction disqualified him from being a candidate in future popular election for fifteen years. The Inter-American Commission, first through a precautionary measure and then later through a final judgment in the Inter-American Court,Footnote 110 intervened to protect his right to be elected, invoking, inter alia, the decision in the Lopez case against Venezuela. Colombian judges respected and applied the Inter-American decisions.Footnote 111 For this reason, Petro was able to run for election in 2018.Footnote 112 Although he lost, he made it to the second round of the presidential election.Footnote 113 But his party obtained very few votes in the congressional election, thus falling below the threshold required to stay in the political game and receive state funding.Footnote 114 However, in 2021 the Constitutional Court, invoking the principles established in the case of Castañeda against Mexico, restored the legal status of his party.Footnote 115 With this judicial intervention, Petro's party was able to compete in following elections, organize a coalition, receive state funding, and finally win the presidency of Colombia in August 2022.Footnote 116
In sum, the current president of Colombia has benefited from two judgments of the Inter-American Court, one regarding Venezuela and the other regarding Mexico as Colombian judges have applied the doctrines established by the Inter-American Court by virtue of the constitutional block.
III. Factors That Have Enhanced the Court's Impact.
A. The Role of Institutional Design
The constitutional block is a national doctrine applied in several Latin American countries.Footnote 117 According to the doctrine, human rights treaties are incorporated in the national legal system at the same level as a state's constitution.Footnote 118 Therefore, statutes and administrative acts must respect not only the national constitution but also the treaties that belong to the constitutional block.Footnote 119 The doctrine has been adopted in several Latin American Constitutions: Colombia in 1991,Footnote 120 Argentina in 1994,Footnote 121 Mexico in 2011,Footnote 122 and many others.Footnote 123 In Brazil, the Constitution is open to the reception of international human rights treaties but has not a strict doctrine of constitutional block.Footnote 124
The constitutional block is the highway that allows international law to enter the domestic sphere at the same hierarchical level as a state's constitution.Footnote 125 The block includes numerous international human rights treaties that can be directly applied by national judges in concrete cases.Footnote 126 The American Convention on Human Rights belongs to the constitutional block of all the states that have adopted this doctrine.Footnote 127
What happens with the judgments of the Inter-American Court in countries in which the doctrine of the constitutional block does not exist? The Inter-American Court considers that the American Convention is directly applicable regardless of whether the block doctrine exists in a country.Footnote 128 Since Almonacid Arellano and Others v. Chile in 2006,Footnote 129 the Court has held that all the judges of the States party to the Convention must review the conventionality of any act relevant to decide a specific case, that is, they can determine if the national legal act is compatible with the American Convention and refuse to apply it if it is incompatible.Footnote 130 Conventionality review or control (“control de convencionalidad”) has been a powerful tool to open a new entry for international human rights law.Footnote 131 Since each country has different systems of judicial review and distinctive judicial structures, the Court has acknowledged that conventionality review may be applied differently in each state.Footnote 132 In turn, each country has adopted different rules to apply it.Footnote 133 These have evolved in key aspects. For example, in Mexico the federal Supreme Court held in 1999 that only federal judges could review the constitutionality of norms and that the control of general norms by all judges was prohibited.Footnote 134 But, in 2011, the Mexican Supreme Court changed course and expressly opened the door to state judges in a diffuse system to apply conventionality control and judicial review of the constitutionality of general norms.Footnote 135 If the system of judicial review is concentrated in one court but ordinary judges have competence to protect constitutional rights, the competence of both constitutional judges and ordinary judges as well as the procedures to apply it in concrete cases becomes a hard and structural issue,Footnote 136 as has happened in Chile.Footnote 137 In Colombia, where a mixed system of judicial review exists and the Constitutional Court applies the doctrine of the constitutional block,Footnote 138 there has been a creative dialogue of judges in the application of conventionality control;Footnote 139 although the Constitutional Court has said that conventionality control should be done simultaneously with the application of judicial review based on the constitutional block,Footnote 140 as has been accepted by the Inter-American Court.Footnote 141
Monitoring complianceFootnote 142 with its own judgments (47 Judgments in the 2022 Report) is another one of the powerful tools that the Inter-American system exercises every year by holding hearings and issuing resolutions on whether a state has complied with a specific decision.Footnote 143
These aspects of the institutional design of the Inter-American system have been paramount to enhance the impact of international law in the region.
B. A Context of Dissatisfaction with How the System Works
I argue that alongside the pre-mentioned aspects of institutional design of the Inter-American system that have increased the effect of international law in the democratization of the Latin American region, we must add political and cultural context. The following are important considerations that affect the impact of international law within the region:
First, the idea that there are structural problems and systemic dysfunctions in each state has predominated in the region.Footnote 144
Second, the distrust in politics and the discredit of politicians in the region has been a constant since the mid-twentieth century and has become more acute during the twenty-first century.Footnote 145 These two elements of the context combined have given the judiciary space to act.
Third, a substantive, not just procedural, vision of democracy has gained strength precisely because of skepticism regarding electoral processes.Footnote 146
Fourth, in several countries of the region there is a bicentennial legal tradition.Footnote 147 It should not be forgotten that Latin American states are much older than many European states. During decolonization, lawyers alongside generals played a leading role in the fight from independence,Footnote 148 with different incidence in the respective nascent state.Footnote 149 There is a community of jurists in the region dedicated to ensuring that democracy is consolidated, deepened, or protected through law, especially human rights law.Footnote 150
IV. Concluding Remarks
Further research could explore which of these contextual elements help to explain the differences in the impact of international law between the European cases and the Latin America cases. Perhaps the Latin American examples deserved more weight in Professor Scheppele's brilliant lecture.
Ultimately, the challenge she raised is not for international law, but for the role of lawyers in the restoration of democracy. It is synthesized in the following dilemma: Do we consider it legitimate that the law acquires a greater voice and role in the restoration of democracy? Or would that inevitably give too much power to the judges and, therefore, it is preferable to trust the political processes and give political actors the time they require? But is this not a false dilemma? The experience of Latin America shows that there can be judicial interventions that are legally rigorous and, at the same time, energizing pro-democratic political processes instead of demobilizing political actors.Footnote 151
Shakespeare once said: “Let's kill all the lawyers” without nuances.Footnote 152 Professor Scheppele tells us today: “Let's call all the lawyers,” mainly those engaged in the defense of liberal democracy.Footnote 153 I join in her invitation, with the enthusiasm needed to keep going from failure to failure.
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