¹ ‘Europe’, in this context, is not the European Union, nor any particular geographical area. The term is defined broadly to include member states of the international institutions of ‘Europe’, viz. the Council of Europe, which has forty-four member states <http://www.coe.int>, the majority of which are party to the European Convention on Human Rights <http://conventions.co.int>, and the Organisation for Security and Co-operation in Europe (OSCE) (previously the Conference on Security and Co-operation in Europe (CSCE)), which has fifty-five participating states <http://www.osce.org/general/>. In this work, the organisation will be referred to throughout as the OSCE. Documents adopted when the organisation was the CSCE will be appropriately referenced.

² See Waldron, J, Law and Disagreement (1999), at 1–2.Google Scholar

³ Authoritarian governments are those in which the people are totally excluded from the decision-making process and any control over it: see D Beetham, Democracy and Human Rights (1999), at 33. The UN Secretary General has argued that ‘democratisation’ is a process which leads to a more open, more participatory, less authoritarian society: ‘Supplement to Reports on Democratization’, UN Doc A/51/761, 20 Dec 1996, at para 1.

⁴ ‘Supplement to Reports on Democratization’, Ibid at para 17.

⁵ Socialist Party and others v Turkey, Reports 1998–III, at para 45.

⁶ The oft-repeated claim is that no two democratic countries have ever fought a war against each other: J Crawford, Democracy in International Law (1994) at 3, relying on Weede, E, ‘Some Simple Calculations on Democracy and War Involvement’, 29 Journal of Peace Research (1992) 377.CrossRefGoogle Scholar

⁷ ‘Progress Review and Recommendations’, adopted by the Third International Conference of the New or Restored Democracies on Democracy and Development held at Bucharest from 2 to 4 Sept 1997, in which eighty states participated: UN Doc A/52/334, 11 Sept 1997. See also the Inter-Parliamentary Union's (IPU) claim, in its Universal Declaration on Democracy (adopted without a vote by the Inter-Parliamentary Council at its 161st session (Cairo, 16 Sept 1997)), that democracy is a ‘universally recognised ideal as well as a goal, which is based on common values shared by peoples throughout the world community irrespective of cultural, political, social and economic differences’: at para 1 (repr 1 Netherlands Quarterly of Human Rights (2000) 127). The IPU, established in 1889, is the world organisation of parliaments of sovereign States. Over a hundred national parliaments are currently members: <http://www.ipu.org>.

⁸ Cf Nicaragua Case (Merits) ICJ Rep 1986, 14, at para 262.

⁹ See, generally, Franck, T, ‘The Emerging Right to Democratic Governance’, 86 AJIL (1992) 46CrossRefGoogle Scholar. It is worth recognising that Franck does not himself assert that a right to democratic government exists, but that ‘the international system is moving toward a clearly designated democratic entitlement, with national governance validated by international standards and systematic monitoring of compliance’: Ibid, at 91 (emphasis added).

¹⁰ ‘Supplement to Reports on Democratisation’, above n 3, at para 28 (footnotes omitted). The General Assembly of the United Nations has repeatedly affirmed that democracy is one of the principles enshrined in the Charter of the United Nations: see, inter alia, GA Resolution 50/133, adopted 16 Feb 1996, ‘Support by the United Nations system of the efforts of Governments to promote and consolidate new or restored democracies’, preamble: A/RES/50/133.

¹¹ Franck, above n 9 at 52.

¹² Ibid, at 61.

¹³ Ibid, at 63–77.

¹⁴ Art 1(2) provides that one of the purposes of the organisation is to ‘develop friendly relations among nations based on respect for the principles of equal rights and self-determination of peoples’; whilst Art 55 determines that the UN shall promote, inter alia, universal respect for human rights with a view to the creation of ‘conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on the respect for the principle of equal rights and self-determination of peoples’.

¹⁵ Art73(b).

¹⁶ Art76(b).

¹⁷ See for example the obligation to refrain from ‘the threat or use of force against the territorial integrity or political independence of any state’ (Art 2(4)), and the proscription of intervention by the United Nations in ‘matters which are essentially within the domestic jurisdiction of any state’ (Art 2(7)).

¹⁸ Pomerance, M, Self-Determination in Law and Practice (1982), at 10.Google Scholar

¹⁹ General Assembly Resolution 1514 (XV) 14 Dec 1960, UN Doc A/4684 (1960). The relevant peoples may choose between establishing a sovereign and independent state; free association, or integration with an independent state; or the emergence into any other political status freely determined by a people. It is clear, however, that resolution 1514, and UN practice in the General Assembly, ‘are suffused with a strong bias in favour of one particular result, independence’: Pomerance, Ibid, 15.

²⁰ See, below n 75, and accompanying text.

²¹ See, for the same formulation of the right of a people to self-determination, inter alia: Principle VIII, Helsinki Final Act (1975) 14 ILM 1292; Art 20, African Charter of Human and Peoples Rights (1981); Art 2, Vienna Declaration and Programme of Action (1993); Declaration on Principles of International Law concerning Friendly Relations and Co-operation among states in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV) 24 Oct (1970).

²² See, eg, the Vienna Declaration and Programme of Action (1993), which provides that ‘All peoples have the right to self-determination’, but takes into account the ‘particular situation of peoples under colonial or other forms of alien domination or foreign occupation’: Art 1 (emphasis added). Cf ‘It is the position of the Government of Sri Lanka that the words “self-determination” appearing in this article apply only to people under alien and foreign domination and these words do not apply to sovereign independent states or to a section of a people or nation’, Third periodic report (Sri Lanka) UN Doc CCPR/C/70/Add 6, para 2.

²³ Quane, H, ‘The United Nations and the Evolving Right to Self-Determination’, 47 ICLQ (1998) 537, 571.CrossRefGoogle Scholar

²⁴ Thornberry, P, ‘Self-Determination, Minorities, Human Rights: A Review of International Instruments’, 38 ICLQ (1989) 867, 878.CrossRefGoogle Scholar

²⁵ Daes, E, ‘Explanatory note concerning the draft declaration on the rights of indigenous peoples’, UN Doc E/CN 4/Sub 2/1993/26/Add 1, 19 07 1993, at para 17.Google Scholar

²⁶ Human Rights Committee's General Comment 12, Art 1 (Twenty-first session, 1984), UN Doc. HRI\GEN\l\Rev 1 at 12 (1994), at paras 4.

²⁷ CERD General Recommendation (21) on the ‘Right to Self-Determination’, adopted 15 Mar 1996, at para 4. As has been noted, the principle of ‘equal rights and self-determination of peoples’ was introduced into the body of international law by the Charter of the United Nations in Arts 1 (2) and 55. This principle guarantees the people of a state protection from interferences in their internal affairs by other peoples/states.

²⁸ This has been made clear in a number of General Assembly Resolutions on the Universal Realisation of the Right of Peoples to Self-Determination: see, inter alia, GA Res 54/155, 29 Feb 2000; and GA Res 55/85, 28 Feb 2001.

²⁹ See Fourth periodic report (Chile) UN Doc CCPR/C/95/Add 1, para 11.

³⁰ ‘Stated broadly, popular sovereignty is the view that individual citizens bestow legitimacy upon a government through their implied or actual consent to its rule’, Fox, G, ‘The Right to Political Participation in International Law’, 17 Yale Journal of International Law (1992) 539, 550.Google Scholar

³¹ GA Res 2625 (XXV) 24 Oct. Likewise, the Committee on the Elimination of Racial Discrimination has determined that the right of the people to self-determination requires the government ‘to represent the whole population without discrimination as to race, colour, descent or national or ethnic origin’, CERD General Recommendation (21) on the ‘Right to Self-Determination’, adopted 15 Mar 1996, at para 4.

³² Declaration on Principles of International Law concerning Friendly Relations, above n 21. It might be noted that even if we could image a people ‘choosing’ such a regime, it is clear that its validity would not be recognised by the international community.

³³ Cf the report submitted by Slovakia which talks about the ‘1,000-year efforts of the Slovak nation [to achieve] its own self-determination[as an independent state]’ (Initial report (Slovakia) UN Doc CCPR/C/8 I/Add 9, at para 1); the Macedonian report speaks of the ‘historical, cultural, spiritual, and statehood heritage of the Macedonian people and their struggle over centuries for national and social freedom’ (Initial report (The Former Yugoslav Republic of Macedonia) UN Doc CCPR/C/74/Add 4, at para 1). The report submitted by Germany talks of the problems of implementing the right to self-determination, as the result of the division imposed on the German people during the 40 years of the cold war, which ‘prevented the German people from freely determining their own political status’ (Fourth periodic report (Germany) UN Doc CCPR/C/84/Add 5, para 12).

³⁴ Thus for example it would be expected that constitutional change would receive the support of a majority of the population. It might be the case however that majority support in itself would not be sufficient, and constitutional amendments might require support from minority communities, or majorities above 50 per cent to be effected.

³⁵ See, Human Rights Committee's General 12, Art 1 (Twenty-first session, 1984), UN Doc HRI\GEN\l\Rev 1 at 12 (1994), at paras 3 and 4.

³⁶ UN Doc E/CN 4/Sub 2/1992/37, 33 para 165, quoted by Rosas, A, ‘Internal Self-Determination’, in C Tomuschat (ed), Modern Law ofSelf-Determination (1993), 225, at 239Google Scholar. See also CERD General Recommendation (21) on the ‘Right to Self-Determination’, adopted 15 Mar 1996, at para 4.

³⁷ Second periodic report (Bolivia) UN Do. CCPR/C/63/Add 4, para 2.

³⁸ Second periodic report (Cameroon) UN Doc CCPR/C/63/Add 1, para 26.

³⁹ Initial report (Croatia) UN Doc CCPR/C/HRV/99/1, para 10.

⁴⁰ Fourth periodic report (Ecuador) UN Doc CCPR/C/84/Add 6, para 11.

⁴¹ Second periodic report (Jamaica) UN Doc CCPR/C/42/Add 15, para 2.

⁴² Second periodic report (Republic of Korea) UN Doc CCPR/C/114/Add 1, para 18.

⁴³ Second periodic report (Lebanon) UN Doc CCPR/C/42/Add 14, para 2.

⁴⁴ Initial report (Lesotho) UN Doc CCPR/C/8 I/Add 14, paras 4–8.

⁴⁵ Third periodic report (Mauritius) UN Doc CCPR/C/64/Add 12, para 5.

⁴⁶ Initial report (Nepal) UN Doc CCPR/C/74/Add 2, para 1.

⁴⁷ Fourth periodic report–Addendum (Peru) UN Doc CCPR/C/PER/98/4, para 3.

⁴⁸ Fourth periodic report (Romania) UN Doc CCPR/C/95/Add 7, paras 6–7.

⁴⁹ Second periodic report (Sudan) UN Doc CCPR/C/75/Add 2, para 22.

⁵⁰ Third and Fourth periodic report (Trinidad and Tobago) UN Doc CCPR/C/TTO/99/3, paras 20–1.

⁵¹ Second periodic report (Zambia) UN Doc CCPR/C/63/Add 3, para 1.

⁵² Crawford, J, Democracy in International Law (1994), at 4.Google Scholar

⁵³ Third periodic report (India) UN Doc CCPR/C/76/Add 6, para 32.

⁵⁴ ‘The Republic of Korea respects not only the right of self-determination… Nationals of the Republic of Korea hold the right to express their thoughts freely and determine their political status through voluntary, fair, universal and confidential voting’, Second periodic report (Republic of Korea) UN Doc CCPR/C/114/Add 1, para 18.

⁵⁵ ‘In accordance with… the people's right to self-determination, the Lebanese authorities are in the process of preparing the legislative elections’, Second periodic report (Lebanon) UN Doc CCPR/C/42/Add 14, para 2.

⁵⁶ Second periodic report (Sudan) UN Doc CCPR/C/75/Add 2, para 22

⁵⁷ Fourth periodic report (Germany) UN Doc CCPR/C/84/Add 5, para 13.

⁵⁸ The Human Rights Committee noted its ‘concern that the Congolese people [had] been unable, owing to the postponement of general elections, to exercise their right to self-determination… [and called] on the state party to organise general elections as soon as possible in order to enable its citizens to exercise their rights under arts 1 and 25 of the Covenant …’, concluding observations on the second periodic report of the Congo: UN Doc CCPR/C/79/Add 118, para 20.

⁵⁹ That said, even where communities draw upon traditional social structures in the government of the state, they do so in conjunction with democratic structures (see, eg, the constitutional structures in the Marshall Islands, Palau, the Cook Islands, Vanuatu, and Fiji). The only alternative forms of government in praxis thus appear to be democratic and authoritarian.

⁶⁰ Murphy, S, ‘Democratic legitimacy and the recognition of states and governments’, in G Fox and B Roth (eds), Democratic Governance and International Law (2000), 123, at 128.Google Scholar

⁶¹ Ibid, at 143.

⁶² The US state Department considers 117 states to be democratic <http://www.state.gOv/g/drl/democ/>. This may be contrasted with the number of Member states of the United Nations: 189 <http://www.un.org/Overview/unmember.html>.

⁶³ See, on this point, General Assembly resolution 55/43, ‘Support by the United Nations system of the efforts of Governments to promote and consolidate new or restored democracies’, GA Res 55/43, 18 Jan 2001. In the Nicaragua Case, the International Court of Justice concluded that, in the absence of a specific legal obligation, there was no commitment on the part of the state to hold free and fair elections, Nicaragua Case (Merits), ICJ Rep 1986, 14, at para 261. The UN Secretary General has argued that ‘individual societies decide if and when to begin democratisation’, and if a state may choose to democratise or not, then logically, there can be no obligation for it to begin the process, ‘Supplement to Reports on Democratisation’, UN Doc A/51/761, 20 Dec 1996, at para 4.

⁶⁴ See, eg, the response of the African Commission on Human Rights to the removal of democratically elected Governments: Fox, and Roth, (eds), Democratic Governance and International Law (2000), 48, at 67–8Google Scholar. Consider, also, the international reaction to military coups in Haiti (Schnably, ‘Constitutionalism and democratic government in the inter-American system’, in Ibid, 155, at 168–71), and Sierra Leone (M Reisman, ‘Sovereignty and human rights in contemporary international law’, in Ibid, 239, at 252–3). Also, the response of the international community to the refusal of the military Government of Myanmar (Burma) to take ‘all necessary steps towards of Democracy in accordance with the will of the people as expressed in the democratic elections held in 1990’: UN General Assembly 49/197 ‘Situation of human rights in Myanmar’: GA Res 49–197, 23 Dec 1994, at para 7. Cf reaction to the Pakistan coup (1999): Bantekas, I and Ebrahim, Z, ‘International Law Implications of the 1999 Pakistan Coup d'etat’ ASIL Insights (11 1999)Google Scholar.

⁶⁵ Initial Report (Lesotho) UN Doc CCPR/C/81/Add 14, para 4.

⁶⁶ Ibid, at para 8.

⁶⁷ ‘Warsaw Declaration: Towards a Community of Democracies,’ 39(6) ILM (2000) 1306Google Scholar: ‘The right of those duly elected to form a government, assume office and fulfil the term of office as legally established’. The foreign ministers and representatives from more than a hundred governments, who met in Warsaw, Poland, on 26–27 June, 2000, issued a ‘Warsaw Declaration’ that expressed their common aspiration and commitment to promote, strengthen and preserve democracy.

⁶⁸ OSCE States have agreed to condemn unreservedly forces which seek to take power from a representative government against the will of the people as expressed in free and fair elections, Document of the Moscow Meeting of the Conference on the Human Dimension of the CSCE, at para 17.1. Further they agreed to support vigorously, in accordance with the Charter of the United Nations, in case of overthrow or attempted overthrow of a legitimately elected government of a participating state by undemocratic means, the legitimate organs of that state: Ibid, at para 17.2.

⁶⁹ The International Court of Justice has accepted that there is nothing within the body of international law to prevent a state from legally binding itself to adopt and maintain a particular form of government: Nicaragua Case (Merits), at para 259. For those 148 states (<htto://www.untreaty.un.org>) who are signatories to the International Covenant on Civil and Political Rights, it is arguable that their obligations to introduce democratic government (contained in Art 1 (self-determination), Art 19 (freedom of expression), Art 22 (freedom of association), and Art 25 (right to free elections)) are permanent and irreversible: see UN Doc CCPR/C/21/Rev/Add 8, General Comment No 26(61), adopted 19 Oct 1997, at para 5.

⁷⁰ Treaty of European Union 1992. The existence of a stable democracy is one of the criteria which must be met before new members may be considered for accession.

⁷¹ United Communist Party of Turkey and others v Turkey, Reports 1998–1, at para 45.

⁷² CSCE Charter of Paris for a New Europe (1990) 30 ILM 190 (1991).Google Scholar

⁷³ See also the position in the Americas following the adoption by the General Assembly of the Organisation of American States of the Santiago Commitment to Democracy and Renewal of the Inter-American System, June 4, 1991: Schnably, S, in Fox, G and Roth, B (eds), Democratic Governance and International Law (2000), 155 at 162–A.Google Scholar

⁷⁴ It is worth repeating, above n 1, that this work is not concerned with developments in the European Union.

⁷⁵ Above n 52.

⁷⁶ The UN Commission on Human Rights has recognised the ‘rich and diverse nature of the community of the world's democracies’: ‘Promotion of the right to democracy’, UN Commission on Human Rights, E/CN 4/RES/1999/57, 28 Apr 1999.

⁷⁷ UN Secretary General, ‘Support by the United Nations system of the efforts of Governments to promote and consolidate new or restored democracies’, UN Doc A/52/513, 21 Oct 1997, at para 27. The Secretary General has argued that the imposition of foreign models of democracy on a society contravenes the Charter principle of non-intervention in internal affairs ‘Supplement to Reports on Democratisation’, above n 3, at para 10.

⁷⁸ ‘Supplement to Reports on Democratisation’, above n 3, at para 4.

⁷⁹ D Beetham, above n 3, at 3.

⁸⁰ Tomuschat, C, ‘Democratic Pluralism: The Right to Political Opposition’, in A Rosas and J Helgesen (eds), The Strength of Diversity: Human Rights and Pluralist Democracy (1992), 27 at 28Google Scholar. Cf Steiner's comment that the ICCPR had been born in a world where the term ‘democracy’ was employed by political systems that had little in common beyond the term itself: ‘Liberal democracies stood beside socialist and people's democracies … [with the consequence that the term] “democratic” lost in descriptive power what it gained in popularity’, Steiner, ‘Political Participation as a Human Right’, 1 Harv Human Rights Yearbook (1988) 77, 89.Google Scholar

⁸¹ Universal Declaration on Democracy, above n 7, para 2.

⁸² There is of course a counter argument to this thesis (that the obligation to introduce and maintain democratic forms of government creates a number of specific obligations for states): obligations to hold free and fair elections, to permit free political debate and activity and to allow political participation can be grouped together for convenience, and without significance, and termed ‘obligations in respect of democracy’.

⁸³ See, eg, ‘democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems’, GA Res 52/18 Support by the United Nations system of the efforts of Governments to promote and consolidate new or restored democracies, adopted 2 Mar 1998, A/RES/52/18 (preamble).

⁸⁴ The traditional idea(l) of democracy is a system of decision-making in which all members of the polis meet together to reach decisions by aggregation (the will of the majority on a particular issue), and/or deliberation (that issues should be subject the fullest discussion, from all interests should be fully considered to come to the best outcome). Potentially, a state with a tiny population where all citizens might gather and make collective decisions might be termed ‘democratic’. Niue has a total population of 2000. Even if only 1000 enjoyed the right to participate in the decision-making processes this would still be too great a number for any effective form of decision-making.

⁸⁵ GA Resolution 217A (III).

⁸⁶ Steiner, above n 80, 89.

⁸⁷ Ibid, 87.

⁸⁸ ‘The key element in the exercise of democracy is the holding of free and fair elections at regular intervals enabling the people's will to be expressed’: above n 7, para 12.

⁸⁹ ‘The will of the people shall be the basis of the authority of government, as expressed … through regular, free and fair elections’, Warsaw Declaration: above n 67.

⁹⁰ ‘Democratic government is based on the will of the people, expressed regularly through free and fair elections’, CSCE Charter of Paris for a New Europe (1990) 30 ILM 190 (1991)Google Scholar. There were thirty-four participating states.

⁹¹ The thirty-five participating states declared that ‘the will of the people, freely and fairly expressed through periodic and genuine elections, is the basis of the authority and legitimacy of all government’, Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, 29 ILM 1318 (1990)Google Scholar, at para 6.

⁹² See, UN Commission on Human Rights, ‘Promoting and consolidating democracy’, adopted 25 Apr 2000, CHR 2000/47, preamble and para l(d).

⁹³ All citizens enjoy, without distinction, the right … (b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors', Art 25, International Covenant on Civil and Political Rights (1966) (ICCPR).

⁹⁴ ‘The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislator’: Art 3 of the First Protocol, of the European Convention on Human Rights (1952) (Pl-3, ECHR). See also, All citizens enjoy, without distinction, the right ‘(a) to take part in the conduct of public affairs, directly or through freely chosen representatives; (b) to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the voters’: Art 23(1), American Convention on Human Rights (1969) (AmCHR); ‘Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the lawr’: Art 13(1), African Charter on Human and Peoples' Rights (1981) (AfCHPR).

⁹⁵ Electoral systems may, in the words of the European Court of Human Rights, legitimately vary ‘from place to place and from time to time’, Case of Mathieu-Mohin and Clerfayt, A 113 (1987) at para 54. Likewise, the drafters of Art 25, ICCPR, whilst making clear that each vote must count equally, were content to leave to states the question as to whether votes would have equal effect in the determination of the outcome of political power. Thus no preference is expressed in the travaux prepatoires of the Covenant for proportional or majority system of voting: Fox, above n 30, 556. Art 25, then, makes ‘allowance for the coexistence of various types of democratic system’: Steiner, above n 80, 91–2.

⁹⁶ See, Art 25(1), ICCPR; Pl–3, ECHR; Art 23(1), AmCHR; Copenhagen Document above n 91 at para 7.1 and para 5.1.

⁹⁷ Art 25(1) ICCPR; Copenhagen Document above n 91 at para 7.4; see also GA Res 54/173, adopted 15 Feb 2000, ‘Strengthening the role of the United Nations in enhancing the effectiveness of the principle of periodic and genuine elections and the promotion of democratisation’, preamble: A/RES/54/173.

⁹⁸ Art 7, Convention on the Elimination of All Forms of Discrimination Against Women (1979); Art 23(1), AmCHR; Art 25(1), ICCPR; Copenhagen Document above n 91 at para 7.3.

⁹⁹ Art 23(1), AmCHR; Art 25(1) ICCPR; Copenhagen Document above n 91 at para 5.1.

¹⁰⁰ Steiner, above n 80.

¹⁰¹ Fox, above n 30, at 557. See also the view of the Inter-American Commission on Human Rights, which concluded that an ‘authentic’ election occurs when there is ‘some consistency between the will of the voters and the result of the election’ (Mexico Elections Decision, Cases 9768, 9780, 9828, Inter-Am CHR 97, 108, OEA/ser L/V/11.77, doc 7, rev 1 (1990)): Fox, above n 30, 558. Fox concludes that an ‘authentic’ election, required by Art 23 of the AmCHR, ‘is one in which no barriers, such as direct intimidation, fraud and harassment, come between the popular will and the elections result … The most important prerequisite to an authentic election is the absence of coercion or intimidation of voters’, Ibid, 567.

¹⁰² J Waldron, above n 2, at 233.

¹⁰³ This position, Fox argues, is confirmed in Art 25, ICCPR: Fox, above n 30, 555.

¹⁰⁴ Nodia, G, ‘Nationalism and Democracy,’ in L Diamond and M Plattner (eds), Nationalism, Ethnic Conflict and Democracy (1994), 3, at 5.Google Scholar

¹⁰⁵ ‘Democracy … requires the existence of … a Parliament in which all components of society are represented and which has the requisite powers and means to express the will of the people by legislating and overseeing government action’, Universal Declaration on Democracy, above n 7 at para 11.

¹⁰⁶ Similarly, the UN Commission on Human Rights has recognised that ‘freedom of opinion and expression is reflected in a democratic society through an electoral system which allows all tendencies, interests and feelings to obtain representation at the level of the executive and legislative power and, therefore, at all levels of power’: ‘Ways and means of overcoming obstacles to the establishment of a democratic society and requirements for the maintenance of democracy’, adopted 7 Mar 1995, E/CN 4/RES/l 995/60, preamble.

¹⁰⁷ [1991] 2 SCR. Reference re Prov. Electoral Boundaries (Sask.) 158. The Committee established under the Convention on the Elimination of Discrimination Against Women, in its General Comment (23) on ‘Political and Public Life’, notes ‘Policies developed and decisions made by [one section of the community–in this case men] alone reflect only part of human experience and potential. The just and effective organisation of society demands the inclusion and participation of all its members’, CEDAW, General Comment 23 on ‘Political and Public Life’, adopted 13 Jan 1997, at para 13.

¹⁰⁸ Waldron above n 2, at 10

¹⁰⁹ See, eg, CEDAW, General Comment 23 on ‘Political and Public Life’, above n 107, at para 15.

¹¹⁰ Case of Mathieu-Mohin and Clerfayt, A 113 (1987) at para 54.

¹¹¹ United Communist Party of Turkey and others v Turkey, Reports 1998–1, at para 44.

¹¹² Bucharest Declaration, above n 7.

¹¹³ General Comment 25 (57). Adopted by the Human Rights Committee. UN Doc CCPR/C/21/Rev I/Add 7 (1996) at para 12. The right to stand for election is not absolute. See, in relation to Pl–3, ECHR, Ahmed and others v United Kingdom, Reports 1998–VI, at para 75; generally, Mowbray, , ‘The Role of the European Court of Human Rights in the Promotion of Democracy’, PL (1999) 703Google Scholar; on the International Covenant on Civil and Political Rights: see, Fox, , ‘The right to political participation in international law’, in Fox and Roth (eds), Democratic Governance and International Law (2000), 48 at 54.Google Scholar

¹¹⁴ Human Rights Committee's General Comment 25, Ibid, para 15.

¹¹⁵ Socialist Party and others v Turkey, Reports 1998–III at para 41. On the importance of pluralism in regard to political organisations, see, Document of the Moscow Meeting of the Conference on the Human Dimension of the CSCE at para 18; Copenhagen Document above n 91 at para 3. It is clear that the one party state is incompatible with the requirements of democracy: see, Bwalya v Zambia, UN HRCee, Comm No 314/1988, Decided 14 July 1993, 14 HRLJ (1993) 408 at para 6.6.Google Scholar

¹¹⁶ Copenhagen Document above n 91 at para 7.6. The Document makes clear that the state must allow political campaigning to be conducted in a fair and free atmosphere in which neither administrative action, violence nor intimidation inhibits political parties from freely presenting their views, or prevents the voters from learning and discussing them or from casting their vote free of fear of retribution: Ibid, at para 7.7.

¹¹⁷ Case of Refah Partisi (the Welfare Party) and Others v Turkey App Nos 41340/98 and 41342–4/98, case decided 31 July 2001, at para 44.

¹¹⁸ United Communist Party of Turkey v Turkey, Reports 1998–1, at para 46.

¹¹⁹ Socialist Party and others v Turkey, Reports 1998–III at para 45.

¹²⁰ Brunner v European Union Treaty, German Federal Constitutional Court [1994] 1 CMLR 57, at para 41 (footnotes omitted). Similarly, the UN Commission on Human Rights has noted: ‘in a democracy the widest participation in the democratic dialogue by all sectors and actors in society must be promoted in order to come to agreements on appropriate solutions to the social, economic and cultural problems of a society’: CHR 1995/60 above n 106. In a democratic system, debate can not be foreclosed. Democracy can not be used to introduce a regime that is not democratic: Case ofRefah Partisi, above n 117, at para 43.

¹²¹ UN Secretary–General, ‘Support by the United Nations system of the efforts of Governments to promote and consolidate new or restored democracies’, UN Doc A/53/554, 20 Oct 1998, at para 25.

¹²² Socialist Party and others v Turkey, Reports 1998–III at para 41.

¹²³ Incal v Turkey, Reports 1998–IV, at para 46.

¹²⁴ Jerusalem v Austria, App No 26958/95, case decided 27 Feb 2001, at para 36.

¹²⁵ Ibid, at para 40.

¹²⁶ Ser A 103, at para 41.

¹²⁷ Ibid, at para 42.

¹²⁸ Ahmed and others v United Kingdom, Reports 1998–VI, at para 55.

¹²⁹ Klosko, G, Democratic Procedures and Liberal Consensus (2000), at 43.Google Scholar

¹³⁰ Socialist Party and others v Turkey, Reports 1998–111 at para 45. Also, United Communist Party of Turkey and others v Turkey, Reports 1998–1, at para 57.

¹³¹ UN Secretary-General, ‘Support by the United Nations system of the efforts of Governments to promote and consolidate new or restored democracies’, UN Doc A/50/332 at para 105.

¹³² Case of Freedom and Democracy Party, Reports 1999–VIII, para 41.

¹³³ Incal v Turkey, Reports 1998–IV, at para 53.

¹³⁴ Wingrove v United Kingdom, Reports 1996–V, at para 58.

¹³⁵ Legitimate political activity includes the freedom to debate public affairs, to hold peaceful demonstrations and meetings, to criticise and oppose, to publish political material, and to advertise political ideas: see Human Rights Committee's General Comment 25 (57) above at 79, at para 26.

¹³⁶ Socialist Party and others v Turkey, Reports 1998–III at para 36; United Communist Party of Turkey and others v Turkey, Reports 1998–1, at para 41.

¹³⁷ Socialist Party and others v Turkey, Reports 1998–III at para 54; United Communist Party of Turkey and others v Turkey, Reports 1998–1, at para 61.

¹³⁸ Socialist Party and others v Turkey, Reports 1998–III at para 47 (emphasis added). See also Case of Freedom and Democracy Party, Reports 1999–VIII, at para 41.

¹³⁹ These may include for example a prohibition on local government officers participating in certain forms of political activity which could impair their impartiality. This restriction on the right to participate in political debate may be justified to protect the rights of others–the electorate—to an effective political democracy: Ahmed and others v United Kingdom, Reports 1998–VI, at para 54.

¹⁴⁰ Baskaya and Okguoglu v Turkey, Reports 1999–IV, at para 62.

¹⁴¹ Incal v Turkey, Reports 1998–IV, at para 58; see also Sener v Turkey, App. No. 26680/95, case decided 18 July 2000, at para 45. See generally on excluding undemocratic parties under international law, Fox, G and Nolte, G, ‘Intolerant Democracies’, 36 Harvard International Law Journal (1995) 1 at 38–43.Google Scholar

¹⁴² Indeed the state may be obliged to be intolerant of anti-democratic forces, in order that the freely expressed will of the people may be protected against those that engage in or refuse to renounce terrorism or violence aimed at the overthrow of that order: Copenhagen Document above n 91 at para 6.

¹⁴³ Walzer, M, ‘The Politics of Difference: Statehood and Toleration in a Multicultural World’, 10 Ratio Juris (1997) 165, 166.CrossRefGoogle Scholar

¹⁴⁴ Case of Refah Partisi and others v. Turkey, above n 117, at para 47.

¹⁴⁵ [1990] 3 SCR r. v. Keegstra 697.

¹⁴⁶ Art 20 (2).

¹⁴⁷ ‘The incompatibility between democracy and racism’, UN Commission on Human Rights, E/CN.4/2000/40, preamble. See also, the International Convention on the Elimination of All Forms of Racial Discrimination (1966).

¹⁴⁸ GA Res 55/82, ‘Measures to be taken against racial discrimination or ethnic exclusiveness and xenophobia, including, in particular, neo-Nazism’, adopted 26 Feb 2001, A/RES/55/82, at para 3.

¹⁴⁹ See, eg, Glimmerveen and Hagenbeek v the Netherlands, App Nos 8384/78 and 8406/78, 18 DR 187 (1979).

¹⁵⁰ Art 25 (a), International Covenant on Civil and Political Rights (1966).

¹⁵¹ See, ‘Promotion of the right to democracy’, UN Commission on Human Rights, E/CN 4/1999/57, para 2. The Universal Declaration on Democracy makes clear, democracy is founded on the right of everyone to take part in the management of public affairs: above n 7 at para 11.

¹⁵² Above n 84.

¹⁵³ D Held, Democracy and the Global Order: From the Modern state to Cosmopolitan Government (1995), at 151.

¹⁵⁴ Cobbet, from Advice to Young Men and Women, Advice to a Citizen (1829), quoted in Maclarlane, The Theory and Practice of Human Rights (1985) at 141, in Waldron above n 2, at 232.

¹⁵⁵ D Harris, M O'Boyle, and C Warbrick, Law of the European Convention on Human Rights (1995), at 550—commenting on the findings of the Commission in the Greek case (12 YB (the Greek case) 1 at 179) on Art 3 of the First Protocol of the ECHR.

¹⁵⁶ Chassagnou and Others v France, Reports 1999–III, at para 112.

¹⁵⁷ Waldron above n 2 at 283–4.

¹⁵⁸ Where citizens are deprived of an equal voice in the government of a state, ‘the chances are quite high that [their] interests will not be given the same attention as the interests of those who do have a voice’, R Dahl, On Democracy (1998) at 76.

¹⁵⁹ S Marks, The Riddle of all Constitutions (2000), at 60. Where individual human rights are involved, there may exist an obligation to consult: see, Guerra v Italy, Reports 1998–1, at para 60.

¹⁶⁰ E/CN 4/RES/1995/60, above n 106, preamble. Not only can institutions gain the allegiance of citizens by demonstrating procedural fairness, and better decision-making, and political stability, but they may, in the absence of agreement on certain contentious issues lead to an acceptance of the legitimacy of the decision or policy: see, Klosko, above n 129, at 210.

¹⁶¹ Crawford, above n 6, at 7.

¹⁶² ‘Supplement to Reports on Democratisation’, above n 3, at para 21; see also UN Secretary—General, ‘Support by the United Nations system of the efforts of Governments to promote and consolidate new or restored democracies’, UN Doc A/51/512, 18 Oct 1996.

¹⁶³ The September 2001 Belarus elections which gave President Lukashenko 75.6 per cent of the vote, were described by the head of the monitoring mission sent by the OSCE as not free and fair: ‘There was an atmosphere of fear that made a fair election impossible’, The Times (London) 11 Sept 2001. The response of the United States was to make clear that it would ‘pursue measures designed to promote civil society and restore democracy to Belarus’ (State Department Press Statement, 10 Sept 2001). This indicates a continuance of the policy of funding and support for anti-government parties and organisations, The Times (London), 3 Sept 2001. Belarus is a participating state of the OSCE, but not a member of the Council of Europe.

¹⁶⁴ The Harare Declaration of 1991 provided the basis for Nigeria be suspended from the Commonwealth, and for Pakistan to be suspended from the Councils of the Commonwealth following military coups in those States.

¹⁶⁵ The Treaty on European Union provides in Art 6(1), that ‘The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States’ (emphasis added). Art 7 TEU sets out a procedure for the Council to determine the existence of a serious and persistent breach by a Member State of the principles on which the European Union is founded (as per Art 6(1)). Sanctions may go further than diplomatic shame. Alongside the determination of the existence of a serious breach, the Council acting by a qualified majority (disregarding the vote of the Member State in question) may suspend certain of the rights deriving from the application of the EU Treaty to the Member State in question (Art 7(2) TEU): see generally, Neuwahl, N and Wheatley, S, ‘The EU and Democracy–Lawful and Legitimate Intervention in the Domestic Affairs of States?’ in Arnull and Wincott (eds), Legitimacy and Accountability in the European Union after Nice (forthcoming)Google Scholar.

¹⁶⁶ Steiner, above n 80, 111.

¹⁶⁷ In this context, the determinations of such bodies as the European Court of Human Rights on issues of freedom of expression and association may be particularly important.

¹⁶⁸ GA Resolution 55/96, ‘Promoting and consolidating democracy’, adopted 28 Feb 2001, A/RES/55/96.

¹⁶⁹ The United Nations' Commission on Human Rights has concluded that the creation of the conditions for a democratic system of government are ‘essential for the prevention of discrimination and for the protection of minorities’, E/CN.4/RES/1995/60, above n 106, preamble.