Data collection technique and instruments

Approach

The present research falls into the category of socio-legal research. Albeit largely employing traditional ‘rules of the game’, it is not doctrinal research as the knowledge it produces is not intended for judges and other legal practitioners, nor is it a research in constitutional law. The central purpose of this project is to make sense of international law as well as to resolve particular legal issues from an external standpoint, rather than from a viewpoint of an internal participant. The importance of such undertaking lies in the novelty and distinctiveness of the final outcome as compared to the research result to be produced within the confines of the doctrinal tradition. As Douglas Vick succinctly observed, interdisciplinarity presupposes that researchers, in addition to ‘black-letter’ approach, resort to an amalgam of theories, methods and techniques borrowed from other social disciplines that are integrated and synthesised to produce a type of analysis that would not otherwise be possible should either discipline be utilised in isolation.²⁰² The value of external perspective is hard to overestimate since international law is much more than a mere accumulation of legal rules waiting to be discovered and interpreted.

Other perspectives are necessary to explain the whole phenomenon of international law. In addition, on the account of the utilised methodology and the level and extent of the interdisciplinary interplay, it is germane to designate this work as a socio-legal lite research (theoretical socio-legal research or ‘law-in-context’ research).²⁰³ Because it is not socio-legal methods proper (quantitative or qualitative) that are used but a particular theory transplanted from the domain of political science to the domain of law to account for certain phenomena, not otherwise addressed by law, one cannot claim doing socio-legal research par excellence but rather a light version of it, that is socio-socio-legal lite research, in the sense that this research is context-aware but does not include hardcore socio-legal methods.

2.5. Conclusion

This chapter has sketched out the theoretical basis of the present thesis. It is argued that such theoretical self-reflection does not amount to a ‘shopping-mall approach’ to method, whereby one selects an approach which most adequately corresponds to one’s personal idiosyncrasies and academic objectives. Rather, such methodological openness is premised on an idea that

202 Douglas Vick, ‘Interdisciplinarity and the Discipline of Law’ (2004) 31 JLS 163, 163-65.

For a more general overview, see Joe Moran, Interdisciplinarity (The New Critical Idiom) (2nd edn, Routledge 2010).

203 A good overview of the socio-legal lite approach is presented by William Twining, Law in Context: Enlarging a Discipline (OUP 1997).

any type of legal research inevitably involves theoretical assumptions having bearing on the way how the research is conducted, what type of data is regarded as legitimate and who is the ultimate beneficiary of the research outcomes.

Thus, the crucial task of any researcher is not to conceal her methodological predisposition as unnecessary, impractical and unscientific but, on the contrary, to demonstrate in explicit terms her theoretical awareness and self-consciousness as preconditions of informed criticism and scientific soundness.

This thesis is, thus, placed within confines of neoliberal reading of international law, which most adequately reflects the ongoing value-orientation and humanisation of the international system. It is acknowledged that any value-based conception of international law involves subjective judgments on what those values are and how they are to be promoted and enforced, which is reminiscent of the nineteenth-century standard of civilisation. It is demonstrated, however, that the propensity to impose a particular substantive world vision is an inherent feature of human society, which cannot be eliminated but can be effectively controlled. Global constitutionalism is suggested to be a solution to the increasingly complex international political environment where the need to promote equality, non-intervention and inclusiveness is as essential as to maintain a certain core of values as a sine qua non of unity, integrity and efficiency of the post-Westphalian order. It is founded on three fundamental pillars: democracy, human rights and the rule of law — values recognised by the international community in variety of instruments. This necessarily implies that international law cares about domestic political systems, that is how national governments are formed. The legitimacy of the constitutional rationale is based on the fact that, unlike other value-based conceptions of international law, it is primarily descriptive and does not seek to force into existence normative ideas unsupported by state consent, even though the latter’s conceptualisation is somewhat modified because it is increasingly derived from, and is shaped by, international consensus.

It is subsequently recognised that even though global constitutionalism is primarily concerned with capturing, mapping and explicating ongoing behavioural patters of states and other subjects of international law without advancing a desired course of action, it is based on progressive reading of history because its legitimacy base relies on the assumption that constitutionalising international law is more effective in responding to modern challenges than the Westphalian system of decentralised and consent-based interaction and is, thus, superior to the pre-constitutionalised order. However, the idea of progress is tainted by the risk of imperialism since it is allegedly a narrative constructed by hegemonic powers who possess military capacity and economic resources to impose their understanding of ‘global’ values upon the weak and thereby to shift alternative narratives to the periphery.

In response to these criticisms, it is established that albeit global constitutionalism speaks the language of progress, it is based on assumptions that minimise abuse and exclusion. First, softening of international law as a layer of global constitutionalisation implies that more states than ever before

can now participate in the process of international law-making because it is easier and less costly. Second, the revision of the doctrine of custom implies that more credence is given to universal opinio juris that certain norm is desirable and/or needed, rather than to individual instances of state practice of the most powerful states who possess political authority and economic resources to make their actions count. Third, because constitutionalisation of international law implies a shift of emphasis from individual state consent to universal consensus as the basis of an international legal obligation, sources that more easily accommodate the common interest, such as general principles of law, assume prominence. Because such principles derive from a large number and variety of domestic legal systems, obligations they impose are more universal than those established by (multilateral) treaty or custom.

In conclusion, it is submitted that global constitutionalism is a ‘law-in-context’ approach by virtue of its pedigree (political science), methodology (theoretical rather than empirical), objectives (assumes a certain progressive stance vis-à-vis international order rather than simply preserves the state of affairs) and ultimate audience (broader academic community).

With the apparent demise of Soviet Communism and the Marxist version of socialism, many claim that liberal-democracy, and perhaps capitalism, won the Cold War. But the crucial question is, about which liberalism, which democracy and which capitalism is this claim maid.¹

Irrespective of the widespread support for democracy in the years following the fall of communism, the definition of what is at stake is still a critical issue to be addressed. Quite surprisingly, the notion of democracy was employed to designate multifarious forms of government as well as political processes over wide periods of time.² As Burchill pointedly observed,

Democracy has been conceptualised as an entitlement all societies possess, as a human right individuals are able to exercise through accepted procedures, as a criterion for the recognition of legitimate governance, as a justification for intervention and the use of force, and as an overriding principle upon which the international system is ordered’.³

What renders situation even more complicated is the internationally recorded references to democracy as both an ‘ideal’ and a ‘form of government’. For instance, the Inter-Parliamentary Union in its 1997 Universal Declaration on Democracy contemplates that ‘[d]emocracy is both an ideal to be pursued and a mode of government to be applied’.⁴ It states:

As an ideal, democracy aims essentially to preserve and promote the dignity and fundamental rights of the individual, to achieve social justice, foster the economic and social development of the community, strengthen the cohesion of society and enhance national tranquillity, as well as to create a climate that is favourable for international peace. As a form of government, democracy is the best way of achieving these objectives.⁵

A similar fuzziness in definition is observable in other international documents, such as, for instance, a UNGA Resolution, which provides that:

1 Conrad Waligorski, Liberal Economics and Democracy: Keynes, Galbraith, Thurow, and Reich (UP of Kansas 1997) 1.

2 The work of David Held, aimed to demonstrate a variety of practices and regimes falling under the notion ‘democracy’, is illustrative in this respect. David Held, Models of Democracy (3rd edn, Polity Press 2006).

3 Richard Burchill, ‘The Developing International Law of Democracy’ (Review Article) (2001) 64 MLR 123, 126.

4 Inter-Parliamentary Union, Universal Declaration on Democracy (Cairo, 16 December 1997) para 2 <http://www.ipu.org/cnl-e/161-dem.htm> accessed 24 August 2016.

5 ibid para 3.

[T]he essential elements of democracy include respect for human rights and fundamental freedoms, inter alia, freedom of association and peaceful assembly and of expression and opinion, and the right to take part in the conduct of public affairs, directly or through freely chosen representatives, to vote and to be elected at genuine periodic free elections by universal and equal suffrage and by secret ballot guaranteeing the free expression of the will of the people, as well as a pluralistic system of political parties and organizations, respect for the rule of law, the separation of powers, the independence of the judiciary, transparency and accountability in public administration, and free, independent and pluralistic media […].⁶

Moreover, the consensus on the definition of democracy is precluded by disagreement on whether democracy is a question of kind or one of degree, that is whether democracy is a binary concept in the sense that state is either democratic or non-democratic or whether democracy is a question of degree in the sense that some states are more democratic than others.⁷ Ultimately, the key complexity lies in the ambiguity as to whether democracy should be referred to as a process of free and genuine elections or whether it is a substantive concept embracing the whole nitty-gritty of a liberal democratic society. The absence of agreement on the meaning of democracy has prevented consensus on the emergence of a human right to democratic governance. This thesis seeks to bring some clarity to the definition of democracy through the prism of the constitutionalist rationale. That said, the thesis will first trace the main contours of the debate on the definition of democracy, which primarily revolves around the discussions on theories and models of democracy.

Hereafter, the international law’s conception of democracy will be revisited and the novel definition will be developed.