Review Essay, to be published in the next volume of the Austrian Review of International and European Law.
Jure Vidmar, Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice (Hart Publishing, Oxford and Portland, ISBN 1849464693)
Russell Buchan, International Law and the Construction of the Liberal Peace (Hart Publishing, Oxford and Portland, ISBN 1849462445)
“May you live in interesting times” – the Chinese curse has penetrated world politics in recent years. Long gone seem the days when Francis Fukuyama emphatically declared the End of History back in the spring of 1989. These were obviously interesting times as well, but in a positive sense: Fukuyama had written his piece amid pro-democratic protests at the Tianmen square, democratic transitions throughout various geographical areas and just a few months before the fall of the Berlin wall. Proceeding from a Hegelian understanding of history as a process of constant evolution and progress, he formulated the famous suggestion that “[what] we may be witnessing in not just the end of the Cold War, or the passing of a particular period of post-war history, but the end of history as such: that is, the end point of mankind’s ideological evolution and the universalization of Western liberal democracy as the final form of human government.”
Some three years later, international law scholars Tom Franck and Gregory H Fox followed suit and added a legal dimension to Fukuyama’s politico-philosophical thesis. According to Franck, governments increasingly recognized “that their legitimacy depends on meeting a normative expectation of the community of states. This recognition has led to the emergence of a community expectation: that those who seek the validation of their empowerment patently govern with the consent of the governed. Democracy, thus, is on the way to becoming a global entitlement, one that increasingly will be promoted and protected by collective international processes.”, while Fox went as far as postulating an existing right to political participation on the basis of treaty law (article 25 CCPR for instance) and the practise of international bodies.
Vidmar describes not only the difficulties in defining democracy, enabling almost every state to claim this label for itself, but also how the idea of democracy has shaped and influenced the process of state-making after the Cold War. While democracy has certainly not become an additional precondition for statehood during this period, states have often supported the establishment of democratic institutions or make their recognition contingent on the fulfilment of certain democratic standards. In this sense, they even recognized entities which clearly fall short of having achieved a sufficient level of independent governance (the most prominent examples being Kosovo or Palestine).
At the same time, it would certainly be unrealistic to speak of an international community as a unitary block cooperating to establish and promote democracy in newly emerging states. Rather, and as it is commonly known, a certain group led by the US and often labelled as “Western” is particularly active in this field. One only needs to think of the speech given by Anthony Lake, Bill Clinton’s assistant for national security affairs, entitled “From Containment to Enlargement” from 1993, in which he put Fukuyama’s finding into practice by calling for US leadership in promoting democracy abroad.
Buchan puts this difference between “the rest and the West” into a broader perspective by transposing Ferdinand Tönnies sociological findings on domestic societies to the international system. Tönnies’ differentiated between “societies” and “communities”, the former encompassing all individuals living within a certain territory and the latter only smaller sub-units, where the members all know each other and share certain common traits, within a given society. This classification is also helpful in understanding international politics: “Western” states are not only a (vital) part of the international society but also of a smaller community. Internal quarrels and disagreements notwithstanding, they all share widely basically similar domestic political systems—i.e., democracy, including respect for the rule of law and human rights, and views on world politics. These may thus often also conflict with those within the international society. Members of the international community, due to their likeness and the resulting higher level of mutual trust, but also as a means to enhance their security, favour a restrictive, qualified understanding of sovereignty and the non-intervention principle. In the most extreme circumstances, they may even use force for the protection of human rights absent an authorization or any other sound legal basis. Those belonging to the international society only, on the other hand, still adhere to pluralism and the notion of sovereignty in the traditional sense as found in documents such as the 1970 Friendly Relations Declaration or the ICJ’s Nicaragua decision, where it held that this declaration, or also the Helsinki Final Act, “envisage the relations among States having different political, economic and social systems on the basis of coexistence among their various ideologies.”
The idea of democracy has suffered several significant setbacks throughout the world in recent years. The Arab Spring, initially welcomed by many as the starting point of a wave of democratic transformations throughout the region, has led to the re-establishment of oppressive regimes, political chaos or, as in the case of Syria and Libya, even armed conflicts. Latin American states are being threatened by high levels of violent criminality, first and foremost as a result of the “war on drugs”, and the comparatively young democracies in Eastern Europe experience widespread disappointment among their respective populations. Globalization and corporatism have led to an erosion of democracy in long-standing democracies as well, since corporations often possess more bargaining power than individual nation states. In the words of Colin Crouch, who observed a decline of democracy and formulated the resounding idea of “post-democracy” at the turn of the century, “[…] the fundamental cause of democratic decline in contemporary politics is the major imbalance now developing between the role of corporate interests and those of virtually all other groups. Taken alongside the inevitable entropy of democracy, this is leading to politics once again becoming an affair of closed elites, as it was in pre-democratic times. The distortions operate at a number of levels: sometimes as external pressures exercised on governments, sometimes through internal changes within the priorities of government itself, sometimes within the very structure of political parties.” From this perspective, Martin Gilens’ and Benjamin Page’s recent and widely discussed finding that even the US no longer constitutes the beacon of democracy but an oligarchy is hardly surprising.
The economic crisis from the 2008 and years of economic standstill have added further fuel to these long-standing trends as populist movements of all sorts were able to capitalize inter alia on the ever-widening gap between the economic and political elites and the electorate. According to the Economists’s 2014 Democracy Index “in 2013 seven countries again suffered a decline. The main reason for the earlier decline was the erosion of sovereignty and democratic accountability associated with the effects of and responses to the euro zone crisis […] In 2013 harsh austerity and a new recession tested the resilience of Europe’s political institutions.
In addition to these internal problems, the international community’s influence in spreading democracy has decreased in recent years. The military interventions in Kosovo, Iraq, and Libya are—notwithstanding the differing circumstances and legal bases, ranging from a somewhat accepted intervention in Kosovo to an obviously abusive reference to the need to overthrow a repressive regime in Iraq and resolution 1973 in Libya—were repeatedly mentioned by powerful non-Western states, first and foremost, Russia and China, as having set bad precedents for abusive invocations of the noble idea of humanitarian intervention. The Kosovo intervention can somewhat be seen as the starting point for the split between the international society and the international community. Russian president Vladimir Putin for instance explicitly drew parallels to the Kosovo precedent when justifying the taking of Crimea and accused the West of acting “beyond double standards.” Furthermore, the troublesome situations in all of these three countries seem to show the limits of the prospects for successful nation-building or democratic transition after decades of authoritarianism. The US has therefore been much more cautious in Syria, relying on a mixture of support for “moderate” rebels and political as well as economic sanctions instead of intervening directly. Any sort of occupation in Syria seemed highly unlikely from the very beginning of the conflict. After all, the experiences in Iraq, but also Afghanistan, were already mentioned by Barack Obama as the principal reasons against any sort of occupation in Libya.
Two conclusions shall be drawn from these brief observations, one concerns the internal sphere in Western states, one their external relations. First, members of the international community should increasingly focus on the state of democracy inside their borders. The further the alienation of political parties and leading figures from the electorate, the higher the chances of populist forces to gain widespread support. If one does not recognize and address the current challenges posed by economic insecurity, integration, ethnic tensions and the question of how to deal with political Islam, to name the arguably most profound ones, we may find ourselves on a downward spiral even in places where the concept of democracy has been deeply rooted in society for decades or longer.
I am perfectly aware of the fact that all of this is easier said than done. After all, how is one to address these pressing issues? Even if we have correctly identified the problem, what exactly needs to be done? And who is responsible act? According to Karl Popper, we have no one but ourselves to blame: “It rests with us to improve matters. The democratic institutions cannot improve themselves. The problem of improving them is always a problem of persons rather than of institutions. But if we want improvements, we must make clear which institutions we want to improve.” In reality, however, things seem more complex than ever. Yes, the key strength of democracies remains the possibility of a peaceful transition of power. The mechanisms of changing institutions, parties, and the general legal framework amidst the interplay with globalisation and what Crouch describes as the “global firm” leaves one wondering whether anything can be done at all. Often enough, statements such as “we (or one) have (has) to do this or that” ultimately end up as mere expressions of helplessness.
The second conclusion concerns the prospects for democracy promotion. Although the post-Cold War period has seen the successful emergence of democracies in former socialist states (as described by Jure Vidmar), this does not mean that the trend will go on endlessly and spur successful democtratic transitions in other areas as well. Some would argue that the West, under the leadership of the US, has not done enough to promote democracy in countries such as Libya, Egypt, Iraq, or Syria. From this perspective, the predominant question is the scale of interventionism, not whether Western states should intervene – directly or indirectly, of course – at all.
I personally wonder whether the interventionist cause is partly borne out of Western arrogance and hubris. Even if one views pro-democratic interventions as a basically good idea, practise has revealed many unresolved difficulties. It is one thing to overthrow a gruesome dictator, but quite another to deal with the long-term consequences. Recent history seems to suggest that it may at times be better to exercise restraint.
We may indeed witness the end of democracy, at least as a “global entitlement”, and the corresponding ascent of legal pluralism in the classical sense as we find it not only in the above-mentioned documents or the Nicaragua judgment, but also in 19th century textbooks. At the same time, I may certainly be wrong. Prophecies often reveal more about the period during which they are made than the future itself. To end with an admittedly hollow phrase: Only time will tell.
 Francis Fukuyama, At the ‚End of History‘ Still Stands Democracy, The Wall Street Journal, 6 June 2014, http://www.wsj.com/articles/at-the-end-of-history-still-stands-democracy-1402080661.
 Francis Fukuyama, ‘The End of History?’, The National Interest (1989).
 Thomas M Franck, ‘The Emerging Right to Democratic Governance’, 86/1 The American Journal of International Law (1992) 46, 46. See also Thomas M. Franck, ‘The Democratic Entitlement’, 29 University of Richmond Law Review (1994) 1.
 Gregory H. Fox, ‘The Right to Political Participation In International Law’, 17 Yale Journal of International Law (1992) 539.
 Anthony Lake, From Containment to Enlargement, 21 September 1993, available at http://fas.org/news/usa/1993/usa-930921.htm (last visited 13 February 2014).
 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), merits, Judgment of 27 June 1986, 1986 ICJ Rep. 14, at 133, para. 264.
 Colin Crouch, ‘Coping with Post-Democracy’, available at http://www.fabians.org.uk/wp-content/uploads/2012/07/Post-Democracy.pdf (last visited 20 March 2014).
 Martin Gilens and Benjamin I. Page, ‘Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens’, 12/3 Perspectives on Politics (2014) 564.
 See The Economist Intelligence Unit’s Index of Democracy 2013, available at http://www.eiu.com/public/thankyou_download.aspx?activity=download&campaignid=Democracy0814, 2 (last visited 13 February 2014).
 Russia Today, ‘Putin: Crimea similar to Kosovo, West is rewriting its own rule book’, 18 March 2014, available at https://www.rt.com/news/putin-address-parliament-crimea-562/ (last visited 23 March 2014).
 Remarks by the President in Address to the Nation in Libya, 28 March 2011, available at https://www.whitehouse.gov/the-press-office/2011/03/28/remarks-president-address-nation-libya.
 Karl Popper, The Open Society and its Enemies. Volume I: The Spell of Plato (1947), 111.