The Right to Democracy in the Age of Global Constitutionalism

This thesis aims to resolve the puzzling standing of democracy in international law. To date, international lawyers have been caught between the exceedingly careful approach, by either resistingto the notion of democracy as a legal concept tout courtor acknowledging that only the electoral dimension of democracy, that is the right to free and fair elections, is a positive legal right, and the exceedingly maximalist approach, according to which democracy, equated with all sorts of social virtuesof a liberal society, is a human right and a state obligation. Both accounts suffer from a lack of a clear methodological reflection and thus fail upon deeper theoretical scrutiny. This thesis sets out to respond to these shortcomings by developing a contextualised (context-aware) approach to democracy but within the proper confines of the de lege latalegal discourse. That said, global constitutionalism as a political theory and a legal approach providing the most adequate account of transformative nature and potential of international law serves as a theoretical framework for the present thesis. On this account, because (empirically validated) constitutionalisation of international law entails the law’s increasing autonomisation vis-à-vis states, non-consensual elements within international law, such as teleological and evolutive treaty interpretation, evolving nature of custom towards one accommodating interests of states as members of the international community, softening of international legal obligation, the ever-growing impact of equitable general principles and the reinvigorated role of legitimacy in the legal discourse, provide an important source of the democratic entitlement’s legal underpinnings.

Beyond this complex theoretical construction, it is shown that not only is the right to democracy an abstract academic invention fostered by the constitutional rationale, but it is also actively defended both by the international community (external defence) and domestic actors (internal defence). Whereas the external mechanism of democracy promotion and defence is marked by the elevated willingness of the international community to intervene in response to democratic disruptions and backsliding, such as coups d’état, the internal mechanism is triggered by the bottom-up resistance by means of revolution as an ultima ratiotool to restore democracy and an ultimate remedy to effectuate the right to democratic governance. It is concluded that international law recognises the right to democratic governance and provides for the external and internal mechanisms of its defence and enforcement. Certainly, this does not signify an end to the contestation over the substantive scope of democracy and the concrete parameters of its legal status. However, this does suggest that the preceding black and white discussions on democracy are clearly insufficient for understanding the operation of this multifaceted concept and its impact on international relations. This work has taken a step forward to add shade and texture to the rigid and monochrome view on democracy of the previous years.