Researchers on “democracy” in international law have to make an important methodological choice: They can examine the “democracy norm” from the perspective only of international law (state practice, treaty norms, international law texts, etc.) or they can locate their research within a wider body of social science literature, in particular considering the normative conception of democracy in political theory (electoral, deliberative, consociational, etc.) and the practice of democracy and democracy promotion identified in political science. The latter is recommended since the idea of democracy in international law did not emerge ex nihilo. To be meaningful, it seems reasonable to conclude that the international law conception of democracy must maintain its family relationship with the idea of democracy that has emerged in political thought and practice over time—after all no agreed definition of democracy exists in international law. For researchers engaged in a critique of doctrine and practice from the perspective of democratic legitimacy, more in-depth reading will be required and reading of the original materials is essential. This article introduces researchers to the key writings in the English language on democracy in international law and relevant readings that inform the debates in international law in cognate disciplines. While certain democratic elements can be found in international doctrine and practice over time, “democracy” as an identifiable principle of the international law order can be dated back to the 1990s and the ending of the Cold War. While the status and content of the “democracy norm” in international law remains contested, the influence of democratic ideals can be seen in a number of areas relating to legitimate political authority at the level of the state and, increasingly, the (democratic) legitimacy of international organizations and institutions. The principle of democracy is seen to have an influence in the functioning of international law and the practice of international relations and international governance: establishing a criterion for legitimate and lawful government, giving form to the right of peoples to political self-determination, providing a context for the enjoyment of human rights and fundamental freedoms, and establishing the basis for peaceable and nonpeaceable interstate relations. Moreover, following the globalization and fragmentation of governance functions, concern has grown increasingly with respect to the “democratic deficit” experienced by citizens at the level of the state, leading to proposals for the democratization of global governance and a literature that examines the extent to which a democratic state should accept the authority of nondemocratic international law norms.
Democracy and International Law
No agreed definition of “democracy” is found in political theory or political science. Nor is there any agreed understanding of the term in international law. Keane 2009 gives an account of the story of democracy, while Held 2009 is a good introduction to the idea of democracy in political theory. In terms of democracy and international law, few works deal systematically with the influence of democracy on international law doctrine and practice. Fox and Roth 2000 and Burchill 2006 are both excellent introductions to the subject. Crawford 1993 is a good example of how the question emerged on the agenda of international lawyers. Wouters, et al. 2003 provides a more up-to-date consideration of the issue. Fox 2013 is a good statement of the international law on democracy; Hilary Charlesworth’s Hague Academy lectures, Charlesworth 2015, represent an excellent introduction to the subject.
Burchill, Richard, ed. Democracy and International Law. Aldershot, UK: Ashgate, 2006.
Collection of the leading essays on democracy and international law from a number of perspectives (mostly also available elsewhere). Useful reference work.
Charlesworth, Hilary. “Democracy and International Law.” In Recueil des Cours 371: Collected Courses of the Hague Academy of International Law 2014. Edited by Hilary Charlesworth, 43–152. Leiden, The Netherlands: Brill, 2015.
Excellent overview of the various issues raised by democracy for international law, particularly in relation to post-conflict transitions to democracy. Good place to start your reading.
Crawford, James. “Democracy and International Law.” British Yearbook of International Law 64.1 (1993): 113–133.
Good introduction to the place of democracy in international law doctrine and practice, published at a time when the issue was moving onto the research agenda of international lawyers. Crawford identifies a “pro-democratic” shift in international law.
Fox, Gregory. “Democracy, Right to, International Protection.” In Max Planck Encyclopedia of Public International Law. Edited by Rüdiger Wolfrum. New York: Oxford University Press, 2013.
Detailed and well-structured exposition of the doctrine and practice relating to democracy in international law. An essential starting point for anyone writing about democracy in international law.
Fox, Gregory H., and Brad R. Roth, eds. Democratic Governance and International Law. New York: Cambridge University Press, 2000.
Collection of the more important and interesting writings on democratic legitimacy (mostly also available elsewhere). Useful and reflective introduction by the editors. Essential reference work.
Held, David. Models of Democracy. 3d ed. Cambridge, UK: Polity Press, 2009.
Standard introduction to the idea of democracy in political thought. Essentially a student text, but provides a useful overview and introduction to the various ideas of democracy.
Keane, John. The Life and Death of Democracy. London: Simon and Schuster, 2009.
Interesting overview of the practice of democracy over time; divides that practice into assembly democracy; representative democracy; and monitory democracy, where the aim is to hold power-wielders to account. Good background reading.
Wouters, Jan, Bart de Meester, and Cedric Ryngaert. “Democracy and International Law.” Netherlands Yearbook of International Law 34 (2003): 139–197.
Reviews the position of democracy in international law, with particular regard to the doctrine and practice related to recognition and membership in international organizations, as well as pro-democracy regime change. Good overview and useful introduction to the subject.
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