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More and more states in the international community are democratic and establish appropriate monitoring mechanisms to ensure that norms on free and periodic elections as well as the right to effectively participate in the political life of one’s country are complied with. Against this backdrop, it is relevant to speculate whether oral commitments to establish and maintain democratic form of government and relevant state practice can be viewed as creating a customary norm of international law imposing obligation on states to commit themselves to introducing and protecting democracy.

Classical legal doctrine defines customary international law as a consistent practice among states that endures over a certain period of time and is viewed by states as legally mandated (a belief of being legally bound is commonly referred to as opinio juris, a shortened expression for opinio juris sive necessitates).¹⁹³ The North Sea Continental Shelf case serves as a locus classicus of this approach to custom:

[N]ot only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis.¹⁹⁴

A newly established customary norm is binding for all unless state opts out as a ‘persistent objector’. In other words, a state that persistently objects to a newly emerging norm of customary international law during the formation of that norm is exempt from the norm once it crystallises into law. Needles to mention, this orthodox scheme succinctly reflects the consensual nature of the Westphalian state-centred order because any norm of international law can only bind a state that has consented to be bound by it. Since it is more difficult

193 Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 33 UNTS 993 (ICJ Statute) art 38(i)(b). See also Ian Brownie, Principles of Public International Law (7th edn, OUP 2008) 6.

194 North Sea Continental Shelf Cases (Federal Republic of Germany v Netherlands; Federal Republic of Germany v Denmark) (Merits) [1969] ICJ Rep 3, 44, para 77.

to establish the existence of opinio juris, it comes with no surprise that traditional doctrine attaches greater weight to state practice, which is now understood to consist of physical acts of individual states as well as statements and inaction.¹⁹⁵ These acts can acquire a variety of forms, including

[D]iplomatic correspondence, policy statements, press releases, the opinions of government legal advisers, official manuals on legal questions (eg manuals of military law), executive decisions and practices, orders to military forces (eg rules of engagement), comments by governments on ILC drafts and corresponding commentaries, legislation, international and national judicial decisions, recitals in treaties and other international instruments (especially when in ‘all States’ form), an extensive pattern of treaties in the same terms, the practice of international organs, and resolutions relating to legal questions in UN organs, notably the General Assembly.¹⁹⁶

Nowadays, the predominant part of inter-state cooperation occurs through international organisations, including in the area of democracy promotion. The UN engagement in the election (including plebiscites and referenda) monitoring missions since the 1950s is a good example of this form of state practice. Albeit its first missions were largely about the realisation of the right to self-determination of the inhabitants of trust and non-self-governing territories (the first one taking place in 1956 in British Togoland, the last one

— in 1992 in Palau), they gradually evolved into large-scale election monitoring missions in sovereign countries in transition to democracy. The most prominent examples of such ‘second-generation’ operations include Namibia (previously South West Africa), Nicaragua (ONUVEN), Haiti (ONUVEH), Angola, Cambodia, El Salvador and Mozambique. The main objective of these missions was to ensure the transition to democracy from one or another form of authoritarian rule.¹⁹⁷ In 1990, the UNGA established the Unit for the Promotion of Democracy (UPD) in order to assist states in maintaining and strengthening their political institutions and democratic processes. The UPD holds observer missions and provides technical assistance to legislatures and electoral institutions. In 1992, the Electoral Assistance Division was created with the aim to serve as the focal point for electoral

195 Conventional legal doctrine, or a so-called narrow approach, conceives only of physical state acts as amounting to practice. See Anthony D’Amato, The Concept of Custom in International Law (Cornell UP 1971) 88. A more recent, flexible approach looks to a wider range of materials, including what states say and what they omit from doing (acquiescence). See Michael Akehurst,

‘Custom as a Source of International Law’ (1975) 47 Brit YBIL 1, 3; Michael Wood, ‘State Practice’ in Rudiger Wolfram (ed), Max Planck Encyclopedia of Public International Law (OUP 2014) para 6.

196 James Crawford (ed), Brownlie’s Principles of Public International Law (8th edn, OUP 2012) 24 (emphasis added).

197 See Yves Beigbeder, International Monitoring of Plebiscites, Referenda and National Elections (Martinus Nijhoff 1994) 120-49; Gregory Fox, ‘The Right to Political Participation in International Law’ in Gregory Fox and Brad Roth (eds), Democratic Governance and International Law (CUP 2000) 73-75.

matters.¹⁹⁸ The main objectives of the electoral assistance are to ensure that elections are organised according to internationally recognised criteria established in international and regional human rights instruments and to assist states in building their institutional capacity in order to effectuate subsequent free and fair electoral campaign.

The monitoring of elections has also been taken up by regional organisations, including the OAS, the Commonwealth and the CoE as well as NGOs, such as the US National Endowment for Democracy, the Council of Freely Elected Heads of Government, the International Human Rights Law Group, the International Federation of Human Rights, Freedom House, the International Foundation for Electoral Systems and many others.¹⁹⁹ Whereas the OAS has been especially active in monitoring elections in fragile democracies of Latin America, such as, e.g., Surinam, El Salvador, Paraguay, Panama and Peru, the Commonwealth has committed itself to supporting former British colonies in their transition to democracy and has been particularly active in Africa, Asia, British Guiana and Gibraltar. In Europe, the leading role of democracy promotion has been taken by the CoE, which since its creation in 1949 has assumed both advisory and operational roles in the field of democracy-building and monitoring by, among others, aiding in defeating fascist-nazi and Marxism-Leninism ideologies and subsequently by observing national elections in Central and Eastern Europe.²⁰⁰ Ultimately, NGOs have monitored elections in dozens of countries. Their independent status has allowed them to intervene more rapidly, to be more outspoken and, if needed, more critical than inter-governmental organisations and government representatives.²⁰¹ It is essential to note that host states turned out to be very cooperative throughout observer missions and the number of requests for election monitoring has steadily increased. Furthermore, because the election standards mirror the text of human rights instruments and pronouncements of the Human Rights Committee and other human rights bodies, the standards can be regarded as evidence of the ‘ordinary meaning’ of the treaty terms concerning democratic participation.²⁰² It may also be argued that election monitoring missions constitute ‘subsequent practice’ for the purposes of interpretation of human rights treaties, including article 25 ICCPR.²⁰³ Moreover, there seem to be no persistent objections to such objective criteria of evaluation of compliance with human rights provisions, as the occasional resistance to monitoring missions does not emanate from ideological

198 UNGA Res 46/137 (17 December 1991) UN Doc A/RES/46/137.

199 Yves Beigbeder, International Monitoring of Plebiscites, Referenda and National Elections (Martinus Nijhoff 1994) 222-23.

200 ibid.

201 ibid 14.

202 Gregory Fox, ‘The Right to Political Participation in International Law’ (1992) 17 Yale J Int’l L 539, 588-90.

203 But see Brad Roth, Governmental Illegitimacy of International Law (OUP 2000) 342 (Denying that the practice of the observer missions can qualify as ‘subsequent practice’ for the purposes of article 31(3)(b) VCLT).

opposition to the validity of criteria used, but rather from the fear of being constrained in the attempts to rig the election results.

Whether holding of, and participation in, election monitoring missions qualifies as state practice occasioning the emergence of a customary norm to install and maintain democratic form of government is still unclear. First, this practice solely displays the commitment to secure the right to free and fair elections, with the right to democracy assuming much broader dimensions.

Second, election monitoring is only widespread in the Western hemisphere to the exclusion of the big parts of Asia. Third, it is too premature to claim that states view these observer practices as legally mandatory. The practice of election monitoring is perceived more as an exception designed to end civil war or regional conflict and/or to increase political legitimacy following turbulent domestic political climate and less as a manifestation of an adherence to the universal right to democracy. Forth, the relationship between monitoring practice and human rights instruments is rather theoretical than formal since article 25-based participatory rights have not explicitly formed the basis for any monitoring mission and the mission reports do not directly cite human rights instruments. On top of that, no regional or global human rights treaty provides for election monitoring as an enforcement mechanism.²⁰⁴

Another example of state practice relevant for the ascertainment of the existence of a customary norm obligating states to be democratic is membership conditionality in the statutes of a number of regional organisations, including the European Union (EU), OAS, African Union (AU), Association of South-East Asian Nations (ASEAN), North Atlantic Treaty Organisation (NATO), CoE, OSCE and others, which commit themselves, at least formally, to the principle of democracy. The cases of rejection of membership rights to undemocratic states or their restriction serves as a vital constituent part of the pro-democratic argument.²⁰⁵ To illustrate, membership in NATO is preconditioned by the commitment to democracy. Whilst the text of the North Atlantic Treaty does not include democracy as a membership requirement,²⁰⁶ the material conditions of membership were elaborated in the Study on NATO Enlargement in 1995, which holds that in order to become a member of the Organisation, willing states must demonstrate that they have ‘a functioning democratic political system based on a market economy’.²⁰⁷

204 Gregory Fox, ‘The Right to Political Participation in International Law’ in Gregory Fox and Brad Roth (eds), Democratic Governance and International Law (CUP 2000) 85.

205 For a detailed analysis of this dimension of state pro-democracy practice, see ch 5.

206 The North Atlantic Treaty (adopted 4 April 1949, entered into force 24 August 1949) 34 UNTS 243, art 10 (‘The Parties may, by unanimous agreement, invite any other European State in a position to further the principles of this Treaty and to contribute to the security of the North Atlantic area to accede to this Treaty. Any State so invited may become a Party to the Treaty by depositing its instrument of accession with the Government of the United States of America.

The Government of the United States of America will inform each of the Parties of the deposit of each such instrument of accession’).

207 NATO, ‘Study on NATO Enlargement’ (3 September 1995)

<http://www.nato.int/cps/en/natolive/topics_49212.htm> accessed 20 October 2015. For a more

One can also mention democratic conditionality in development policies as well as state creation and recognition practices as relevant instances of state material practice for the purposes of ascertainment of the objective element of the customary democratic norm. As to the former, in the course of the last decades, most major donors practiced democratic conditionality in the delivery of development assistance programs, with the case of the EU being of particular interest given its rigorous approach and the language of legal obligations.²⁰⁸ In short, the EU adopted a policy of including human rights and democracy clauses into its bilateral trade and cooperation agreements with third countries. More recent documents reveal that serious and persistent breaches of human rights as well as democratic interruptions are regarded as material breaches, as the term is understood in article 60 VCLT, which, in turn, enable the EU to suspend compliance with its treaty obligations.²⁰⁹ On a global scale, the practice of international financial organisations is worth a mention.

Since the 1990s, the countries can only obtain financial support from the International Monetary Fund (IMF) and the World Bank provided that they

‘govern well’. Traditionally, ‘good governance’ was defined by reference to sound macro-economic performance. However, it became soon clear that economic development and the rule of law go hand in hand. As a result, both the IMF and the World Bank supplemented their lending requirements with political conditions, such as respect for human rights and democratic governance.²¹⁰

The practice of creation of new states has also been marked by the

‘democratic bias’. Entities that attained statehood in the last decades with the support or the involvement of the international community have been impelled to introduce democratic institutions. Similarly, most cases of the international administrations of territory culminated in the creation of democratic states, the most prominent examples being East Timor (UNTAET) and Kosovo (UNMIK), albeit the latter’s status as state is not yet finally resolved.²¹¹ Other

detailed exposition, see Alison Duxbury, The Participation of States in International Organizations: The Role of Human Rights and Democracy (CUP 2011) 130ff.

208 Ronald Rich, ‘Bringing Democracy into International Law’ (2001) 12 Journal of Democracy 20, 29.

209 ibid. See also Stephen Haggard and Steven B Webb, Voting for Reform: Democracy, Political Liberalization and Economic Adjustment (OUP 1994); Barbara Brandtner and Allan Rosas,

‘Human Rights and the External Relations of the European Community: An Analysis of Doctrine and Practice’ (1998) 9 EJIL 468, 473-77.

210 See World Bank, Governance and Development (The World Bank 1992); World Bank, Governance. The World Bank’s Experience (The World Bank 1994); World Bank, Helping Countries Combat Corruption. The Role of the World Bank (The World Bank 1997); World Bank, Development and Human Rights. The Role of the World Bank, (The World Bank 1998);

Jan Wouters and Cedric Ryngaert, ‘Good Governance: Lessons from International Organizations’ in Deirdre M Curtin and Ramses A Wessel (eds), Good Governance in the European Union. Lessons from National and International Law (Intersentia 2004).

211 Jean d’Aspremont, ‘The Rise and Fall of Democratic Governance in International Law’ in James Crawford and Sarah Nouwen (eds), Select Proceedings of the European Society of International Law (Hart Publishing 2012) 61. See also Jean d’Aspremont, ‘La création internationale d’États démocratiques’ (2005) 109 RGDIP 889; Jean d’Aspremont, ‘Post-Conflict

examples where the UN invoked its Chapter VII powers to reconstruct post-conflict societies along democratic lines include, among others, the UN Transitional Assistance Group (UNTAG) deployed in Namibia and UN’s Transitional Authority in Cambodia (UNTAC).²¹² Further, democratisation has not left the practices of recognition of new states and governments untouched either. The case of the Yugoslav crisis is the most cited example. To make a long story short, following the Yugoslav war, the EC Member States established the Arbitration Commission (or the Banditer Commission) and passed two documents outlining recognition policy in relation to the new states that emerged in the territory of the SFRY (and the Soviet Union): the EC Guidelines²¹³ and the EC Declaration on Yugoslavia.²¹⁴ Pursuant to the EC Guidelines, states must ‘have constituted themselves on a democratic basis, have accepted the appropriate international obligations and have committed themselves in good faith to a peaceful process and to negotiations’.²¹⁵ Whilst the document does not spell out in any more detail what is meant by

‘democratic’, it contains a direct reference to the Charter of Paris, which stipulates that ‘[d]emocratic government is based on the will of the people, expressed regularly through free and fair elections’. It further states that

‘[d]emocracy has as its foundation respect for the human person and the rule of law. Democracy is the best safeguard of freedom of expression of all groups of society, and equality of opportunity for each person’.²¹⁶ The EC Declaration supplemented the EC Guidelines with requirements specifically addressed to the Yugoslav situation.

Last but not least, the recent SC-endorsed practice of the enforcement action against ‘rogue’ and ‘failed’ states aimed at forcible imposition of democratic institutions too speaks in favour of maturing of a democratic customary norm.²¹⁷ The most cited cases of forcible democracy defence and democracy-building under the aegis of the SC include Haiti (1994), Sierra Leone (1997), Kosovo (1999) and Libya (2011). As one prominent scholar pointedly observed ‘[l]es États non démocratique ne semblent plus pouvoir se

“réfugier” derrière la règle de non-intervention dans les affaires intérieures

Administrations as Democracy-Building Instruments’ (2008) 9 Chi J Int’l L 1; Jure Vidmar, Democratic Statehood in International Law (Hart Publishing 2013) 116-24.

212 For more on this, see Russell Buchan, International Law and the Construction of the Liberal Peace (Hart Publishing 2013) 154-61.

213 EC Guidelines on Recognition of New States in Eastern Europe and in the Soviet Union (16 December 1991) reprinted in Snezana Trifunovska, Yugoslavia through Documents: From its Creation to its Dissolution (Martinus Nijhoff 1994) 472.

214 EC Declaration on Yugoslavia (16 December 1991) reprinted in Snezana Trifunovska, Yugoslavia through Documents: From its Creation to its Dissolution (Martinus Nijhoff 1994) 474.

215 EC Guidelines on Recognition of New States in Eastern Europe and in the Soviet Union (16 December 1991) para 2.

216 OSCE, The Charter of Paris for a New Europe (21 November 1990) 3

<https://www.oscepa.org/documents/all-documents/documents-1/historical-documents-1/673-1990-charter-of-paris-for-a-new-europe/file> accessed 30 August 2016.

217 For a more detailed overview, see section 5.1.

quand l’objet de l’intervention est […] la démocratisation de leur régime’.²¹⁸ While the practice of adopting forcible measures against non-democracies is far from consistent and is at loggerheads with the principles of sovereignty and non-intervention, it can find psychological support in the Declaration on Principles of International Law concerning Friendly Relations, which is now commonly recognised as customary international law. The Declaration explicitly makes the territorial integrity of a state contingent on its possession of a representative government:

Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.²¹⁹

Thus, whilst the preceding analysis makes clear that the democracy promotion agenda is certainly discernible in the practice of states, either on their own or through the venues of international organisations, there is no consensus yet within international scholarly circles whether this practice is consistent and durable enough to result in the establishment of a customary norm of democracy. There are several points to consider. First, it is not clear whether state actions in support of democracy have been accompanied by a belief that they were following a legal norm (opinio juris). Second, if the right to democracy crystallised into the norm of customary international law, then the violation of the norm in question (non-application of democratic governance or democratic disruption) would be seen as a violation of international law and engage state responsibility. This is certainly not the case.²²⁰ The reality is that very often there appears to be a consistent state practice of violating the democratic entitlement. This is mostly visible in the rise of the modern semi-authoritarian regimes, rhetorically committed to democracy and in reality exempting their citizens from a real access to the political processes of decision-making, not to mention the hard-core authoritarian states as China

Thus, whilst the preceding analysis makes clear that the democracy promotion agenda is certainly discernible in the practice of states, either on their own or through the venues of international organisations, there is no consensus yet within international scholarly circles whether this practice is consistent and durable enough to result in the establishment of a customary norm of democracy. There are several points to consider. First, it is not clear whether state actions in support of democracy have been accompanied by a belief that they were following a legal norm (opinio juris). Second, if the right to democracy crystallised into the norm of customary international law, then the violation of the norm in question (non-application of democratic governance or democratic disruption) would be seen as a violation of international law and engage state responsibility. This is certainly not the case.²²⁰ The reality is that very often there appears to be a consistent state practice of violating the democratic entitlement. This is mostly visible in the rise of the modern semi-authoritarian regimes, rhetorically committed to democracy and in reality exempting their citizens from a real access to the political processes of decision-making, not to mention the hard-core authoritarian states as China