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Although democratisation can be a vital component of peace settlements, formulaic applications of supposed international norms of democratic governance are potentially counterproductive. Each conflict situation is different; many situations do not admit of prefabricated solutions that one can justly expect all reasonable contestants to accept, either at the outset or as events develop. Procedural standards associated with the ‘democratic entitlement’ obscure the underlying purposes that democratic forms, to be meaningful, need to fulfil. Post-conflict conditions, typically marked by sharp social divisions and a lack of agreement on the political community’s basic premises, are precisely the conditions in which it cannot be taken for granted that standard procedural norms will work to produce democratic social realities. Improvisation is thus essential. Peace and democracy may both be better served if the international lawyers stand aside.
Thomas M. Franck's The Emerging Right to Democratic Governance has lived a dual existence. On the one hand, it is almost universally cited as having brought international lawyers into the freewheeling debate of the early 1990s among scholars of international relations, comparative politics, and political theory about the so-called “Third Wave” of democratization. On the other hand, the article is not infrequently described as a legal avatar of post-Cold War Western triumphalism, often sharing a sentence or a footnote with Francis Fukuyama's The End of History and the Last Man. From the standpoint of the two authors of this essay—one a long-time defender of Franck's thesis and the other a long-time critic—both of these broad-brush characterizations of the article contain elements of truth, but both are also woefully incomplete.
How do treaties function in the American legal system? This book provides a comprehensive analysis of the current status of treaties in American law. Its ten chapters examine major areas of change in treaty law in recent decades, including treaty interpretation, federalism, self-execution, treaty implementing legislation, treaty form, and judicial barriers to treaty enforcement. The book also includes two in-depth case studies: one on the effectiveness of treaties in the regulation of armed conflict and one on the role of a resurgent federalism in complicating US efforts to ratify and implement treaties in private international law. Each chapter asks whether the treaty rules of the 1987 Third Restatement of Foreign Relations Law accurately reflect today's judicial, executive, and legislative practices. This volume is original and provocative, a useful desk companion for judges and practicing lawyers, and an engaging read for the general reader and graduate students.
The United Nations Charter-based international order sought to reconcile the self-determination of peoples with the inviolability of state boundaries by presuming sovereign states to be manifestations of the self-determination of the entirety of their territorial populations. This presumption, albeit nationally rebuttable, traditionally prevailed even where states could only by a feat of ideological imagination be characterized as “possessed of a government representing the whole people belonging to the territory without distinction.” But the international reaction to fragmentation in the former Yugoslavia—regarding both the initial “dissolution” and the subsequent struggle over Kosovo—called into question the rigid doctrines of the past and opened the door to secessionist claims theretofore dismissible as beyond the pale. Although no vindication of Russian intervention in Ukraine can properly be drawn from the Yugoslav cases, the Ukrainian crises help to surface the hidden dangers of an emerging jurisprudence that would allow previously inadmissible considerations—whether ethnic, historical, constitutional, or “democratic”—to compromise the territorial inviolability norm.
Erika de Wet has provided a useful and balanced assessment of the current state of the international law of governmental illegitimacy. Her account quite rightly concludes that “democratic legitimacy is not yet a requirement for the recognition of a de jure government under customary international law.” What follows below seeks to expand on her observations in two ways: by developing somewhat further the doctrinal linkages to which she alludes; and by explaining the failure of a consistently legitimist state practice to materialize, in light of the dynamics of the legal order within which the question of governmental illegitimacy is embedded.
A quarter-century ago in the Nicaragua judgment, the International Court of Justice insisted that to disallow a state's adherence to any particular governmental doctrine ‘would make nonsense of the fundamental principle of State sovereignty, on which the whole of international law rests, and the freedom of choice of the political, social, economic and cultural system of a State’ (para 263). The Court invoked the 1970 Friendly Relations Declaration and related documents that ‘envisage the relations among States having different political, economic and social systems on the basis of coexistence among their various ideologies’ (para 264). Although the continued relevance of this model of sovereign equality has since been called into question – above all, in the name of human rights, international criminal justice, and the ‘responsibility to protect’ – no systematic replacement has emerged. Notwithstanding some modification and erosion, the sovereign equality principle continues to have significant (and worthy) implications for legal relations between liberal and non-liberal states.
Across the globe for well over a century, the ideas of Karl Marx held a special fascination for movements seeking to transform economic, political and social conditions in favour of the ‘have-nots’. That this fascination endured a spectacular array of disappointments, defeats and disasters – ranging from the failure of Marxian predictions about the historical trajectory of capitalism to the massive commission of ignominious crimes in the name of Marxism – merely testifies to the power of those ideas to capture and hold the imagination of those who have yearned to transform the conditions of the disempowered and the deprived.
By now, however, the continued relevance of the Marxian inspiration stands in serious question. Experiments in socialist revolution are widely discredited. Insofar as there remains a global activist project to secure the conditions of a dignified human existence for all, the initiative seems to lie with the human rights movement – quintessentially a liberal design, and one historically in tension with Marxism.
Can Marxian political thought make a positive contribution to the contemporary project of international human rights advocacy? Marxism is ordinarily understood to assert the ‘ideological’ (and thus obfuscatory) character of rights claims and the impossibility of a justice that transcends class interests.
Marxian thought retains its relevance in the current period, not as a comprehensive replacement for liberal human rights theories, but as a source of critique that challenges those theories on the basis of the very values of human freedom and dignity that they espouse. The Marxian approach entails no general rejection of human-rights-oriented constraint, procedural or substantive, on efforts to achieve social change, but rather serves the human rights project by demonstrating how contradictory class interests manifest themselves as contradictions within the effort to apply liberal principles in a class-divided society.
With the global geopolitical and ideological balance of the Cold War era fast receding into distant memory, new issues arise for the continued vitality of international legal constraints on the use of force. The lack of a global competitor to the United States in the security realm, and of a global alternative to liberal internationalism in the ideological realm, has changed perceptions of the role of the peace and security system, especially among Western States, nongovernmental organizations (NGOs), and intellectuals – and particularly with respect to internal armed conflict. The perceived need to accommodate rival conceptions of public order has given way, in many quarters, to a perceived opportunity to harness the unchallenged military power of the United States and its allies to the pursuit of a predominant conception of justice. This development constitutes a potential challenge to the foundations of the international legal system and, above all, to the principle of equal applicability of legal constraints to all States, absent Security Council action. Scholars of that system, it follows, have an onus to position themselves in relation to this development.
This chapter, unlike others in this volume, will focus directly on scholarly discourse.