Fulda, Christian B: Demokratie und pacta sunt servanda


Kapitel 7. Summary

The principle of democracy is now legally rooted in international law, both through treaty obligations and customary law. It requests states to implement and safeguard democratic structures and includes, apart from a human rights component (especially the right to free and fair elections, the right of expression, assembly and association), specific demands on the constitution of states, notably regarding separation of powers and the rule of law.

Treaty law obligations follow from several multilateral conventions and statues of international organisations, respectively. The most important pillar is the International Covenant for Civil and Political Rights . Also, the bilateral obligations regarding democracy imposed by treaties with the EC play an important role. Only a handful of states nowadays is under no treaty obligation towards democracy. The large number and the consistence of treaty obligations indicate a customary rule of the principle of democracy.

The UN-missions in Cambodia, Somalia, Bosnia-Herzegovina, Kosovo, East-Timor and Afghanistan point to an obligation of the international community to implement democratic principles whenever faced with the task of nation-building. The UN and the other organisations of the international community may take over this charge themselves, like in Cambodia, Bosnia-Herzegovina and Kosovo, or can contribute to an internal development like in East-Timor or Afghanistan.

This thesis does not conclude that following from the cases of Haiti and Sierra Leone there exists a right to forcible intervention when democratic governments are ousted by force. It is clear, though, that a negative deviation from an already achieved standard of democratisation may entail justified sanctions. Apart from the cases of Haiti and Sierra Leone which can be read as expressing a customary rule of sanctioning such deviation there are numerous treaty-based regimes providing for such sanctions. In a multilateral context, such are provided by Art.6, 7 Treaty of the European Union, Art.3, 8 Statute of the Council of Europe , Art.9 OAS Charter and Art.19ss. of the Inter-American Democratic Charter as well as by Art.4 and 5 of the Protocol of Ushuaia of the MERCOSUR . Also have to be mentioned the mechanisms of the Charter of Paris and the Moscow document of the CSCE as well as the Millbrook Commonwealth Action Programme on the Harare Commonwealth Declaration 1995 . A bilateral equivalent can be found in the clauses on democracy of the treaties with the EC.

If these sanctions aim at “negative“ deviations from an already achieved standard of democracy, the resolutions of the General Assembly and of the UN Human Rights Commission aim at a “positive“ development of democracy. They reflect the third pillar of the democratic principle. Accordingly, it is not only illegal to oust democratically elected governments by force, or to jeopardise established democratic structures by other means. All states find themselves under the obligation to foster democracy in their own countries. This could be called an obligation towards democratisation. Upholding a goal this customary rule does not entail states being in violation of international law if they do not comply with the democratic principle, unless they are bound by treaty law, and without prejudice to human rights and structural principles following from customary law as expressed e.g. by UNGA Res.55/96 (2000) . However, the obligation to achieve this goal implies that the international community is allowed to claim pursuance of this goal with means on levels below the use of force. Appreciations of the internal affairs of states are legitimate. And the obligation is violated if there is no discernible effort of democratisation.


Those few states which are not yet under a treaty-based obligation on democracy and which still function as states, precluding an intervention of the international community, find themselves as well under the obligation to democratically legitimise the conduct of public affairs. Therefore, no all-encompassing definition of the democratic principle is necessary to acknowledge its normative value. It is based on specific obligations following from treaty-law and international practice, especially of the UN, requesting acts of state to be legitimised by a pluralistic, representative system of government on the basis of regular, free and fair and elections, and a constitutional system securing human rights, separation of powers and the rule of law.

Acts of state therefore require the legitimation through the freely expressed will of the people. The freedom to express its political will includes the freedom to change this will in a dynamic perspective. Thus, the democratic principle has this function of legitimacy in common with the law on treaties. The legal act of concluding a treaty, which legitimises the treaty norm is an expression of the will of the state, which in itself needs legitimation. And the on-going legitimacy of the international treaties which in their majority set up international norms require mechanisms to take into account the change of will within in one State party.

The current law of treaties fails to take into account the democratic principle, though. True, an extensive interpretation of Art.31 Vienna Convention on the Law of Treaties might open up the possibility to take into account changes in international law when interpreting treaty obligations. However, the pertinent rules of the law of treaties as expressed in the Vienna Convention fail to guarantee the democratic legitimation of the conclusion of a treaty and do not provide for an adequate mechanism to deal with an internal revision of the political will.

Art.46 Vienna Convention , which allows for claims of violations of internal law regarding the conclusion of treaties, has been drafted very narrowly. State practice does not reveal a positive case of application. Moreover, no right to revision exists which would allow one State party to discuss the on-going legitimacy of a treaty by a structured revision procedure. In case a treaty does not include an explicit right of withdrawal or denunciation according to Art.54 Vienna Convention , an implicit right to such end might ensue according to Art.54 Vienna Convention from the nature of the treaty. This provision is not in the least clear, though. It is not possible to take into account a political change of will when applying the clausula according to Art.62 Vienna Convention . Last not least, ius cogens according to Art.53 and 64 Vienna Convention might be applicable with regard to the democratic principle where treaties aim at the disposal of democratic structures in a given state. But no state practice can be found questioning the limitation of the democratic principle by treaty obligations.

This insufficient consideration of the democratic principle by the law of treaties is especially serious, as conflicts will increase in number due to the expansion of international law. The more internal affairs of nations are dealt with and regulated by international law, the more important is the legitimation of regulation through treaties, and the more often conflicts will occur due to internal policy revisions.

Some cases may illustrate the conflict. France left NATO in 1966 due to revised considerations on security policy. The NATO treaty is not sufficient to evaluate this withdrawal, as it does not reflect the process of institutionalisation that occurred within NATO since the 1950ies. Withdrawal could be based on an implicit right of withdrawal with


regard to the organisational structure, whereas application of the clausula according to Art.62 Vienna Convention is doubtful due to the existence of a clause of revision. Senegal‘s withdrawal from two of the four Geneva Conventions on the Law of the Sea of 1958 due to the exploitation of its coastal zone by industrialized nations illustrates the problem of regulating the “public goods“ of the international community. Also, this case makes a strong point in favour of declining an implicit right of withdrawal only if and so far as effective mechanisms of treaty revision exist. The German decision to terminate the use of nuclear energy and the connected questions regarding the reprocessing of German nuclear waste in France and Great-Britain serve as an example how governments might be inclined to limit the political freedom of succeeding governments. Also, they point to the necessity of an interpretation that is “democracy friendly“. In the Gabcíkovo-Nagymaros case the ICJ did not consider the fact that the Hungarian denunciation of the project to build a dam on the Danube was based on an internal revision of policy. The judgement left both sides dissatisfied when stipulating that the conflict should be solved through negotiations. It supports the argument that some constellations can be successfully dealt with only by integrative structures which cope with diverging expressions of political will. Another solution for multilateral treaties could be the inclusion of clauses allowing experiments in deviation from the treaty. The problem of the compatibility of drug consumption rooms with the anti-drug conventions of the UN is an example for cases where such a clause might be put to good use. The Aminoil dispute seems to put forward a solution for the limitation of future decisions of parliaments. Stipulating an explicit statement of this limitation in the treaty itself, a limit to the duration of such a treaty and express provisions for such a treaty in the constitution, this award does not reflect current international law, though. Last not least, the denunciation of the ABM treaty by the US is a striking example for the conflict between treaty obligation and internal change of policy. The denunciation can be based on the denunciation clause of the treaty. But it can also be read as an example for a right of denunciation after negotiations on the revision of a treaty failed.

There are three possibilities of solving the conflict between treaty obligation and the freedom of a people to express its political will. First, general rules of the law of treaties can be realigned to take into account the democratic principle. Second, and most important, problems can be forestalled by including certain provisions when drafting a treaty. Third, a development of international law is recommended.

Art.31 Vienna Convention can be taken as starting point for a “democracy friendly“ interpretation, where such interpretation is chosen among several possible which limits democratic shaping of the political will to the least. Art.46 Vienna Convention can be applied in such a way that leads to the respect of constitutional law that controls the executive concluding the treaty. The implicit right of denunciation and withdrawal according to Art.54 Vienna Convention could be applied in cases where the treaty deals with “internal affairs“ of a society, whereas treaties concerning the “constitution“ of the international community should better be open to revision only.

Including treaty clauses allowing for revision, experiments and denunciation or withdrawal when drafting a treaty contributes to shaping a contractual relation that can take into account future changes of the political will. A revision clause allows for a formal procedure by which the on-going legitimation of the treaty obligation by both or all States parties is validated. A subsidiary clause of denunciation or withdrawal contributes to the effectiveness of such a procedure of revision. Clauses allowing experiments are especially helpful to stabilize


multilateral treaties, opening up new possibilities to achieve the goal of the treaty. In simple cases, clauses of denunciation or withdrawal allow for freedom to change the political will. Complex cases on the other hand require an integrative structure, that is treaty clauses implementing a dynamic system that allows for both changes of circumstances and of the political will. If such an integrative structure is to cumbersome in relation to the goal of the treaty, last resort can be taken to intelligent clauses that allow for control of future developments though leaving the treaty static.

De lege ferenda a right to revision is requested, combined with a subsidiary right of denunciation or withdrawal. This would offer a mechanism in international law similar to the right of initiative in parliaments in internal law, whereby new legal solutions for a given problem can be introduced and existing rules can be challenged on their on-going legitimacy.

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