Self-Determination in International Law and the Demise of Democracy?
Washington and Lee University - School of Law
Columbia Journal of Transnational Law, Vol. 41, p. 601, 2003
Washington & Lee Legal Studies Paper No. 2011-43
In his highly controversial book from 1992, The End of History and the Last Man, Francis Fukuyama triumphantly declared liberal democracy, in its co-existence with market capitalism, the victor of the Twentieth Century's ideological struggles and consequently the end-station of history. Fukuyama explained that "[a]s mankind approaches the end of the millennium, the twin crises of authoritarianism and socialist central planning have left only one competitor standing in the ring as an ideology of potentially universal validity: liberal democracy, the doctrine of individual freedom and popular sovereignty." He found evidence for this conclusion in the proliferation of newly independent states at the end of the 1980s and in the early 1990s that had, to his mind, moved toward political systems based on the liberal democratic model. For Fukuyama this "liberal revolution" suggested "a Universal History of mankind in the direction of liberal democracy." It was especially important that the blaze, with the end of the Cold War, had taken hold outside of Western Europe and North America, reaching Latin America, Eastern Europe, and Asia.' Fukuyama, however, devoted very little attention to a formal definition of democracy, concluding rather tersely that "[a] country is democratic if it grants its people the right to choose their own government through periodic, secret-ballot, multi-party elections, on the basis of universal and equal adult suffrage." The simplicity of Fukuyama's definition of liberal democracy certainly ignores the fact that "[d]emocracy admits of radically contradictory interpretations...." Some critics go so far as to charge that this opaque definition of liberal democracy was a deliberate gloss that permitted Fukuyama "to proclaim a victory for liberal democracy wherever he sees economic liberalism."
Fukuyama is not, however, the only prominent scholar and commentator of the last decade to trumpet democracy's messianic Cold War victory, while adopting an anemic definition of democracy in order to do so. Thomas Franck saw the same trend emerging at the beginning of the 1990s: "The question is not whether democracy has swept the boards, but whether global society is ready for an era in which only democracy and the rule of law will be capable of validating governance." Franck drew a slightly less deterministic conclusion from the rise of the liberal-democratic model than did Fukuyama, arguing instead that the movement foreshadows the development of an entitlement to democratic governance in international law. In essence, he argued that the international community has set this ideal for itself, without claiming, as Fukuyama did, that it had to turn out this way." Franck treated the concept of "democracy" with the same simplified singularity as Fukuyama, defining democracy along the lines of a similar set of basic elements: "[O]pen, multiparty, secret ballot elections with a universal franchise." So defined, Franck could sum up the sweeping and diverse spectrum of democratic theory in one sentence: Only a few, usually military or theocratic, regimes resist the trend. This almost-complete triumph of the notions of Hume, Locke, Jefferson and Madison in Latin America, Africa, Eastern Europe and, to a lesser extent, Asia-may well prove to be the most profound event of the twentieth century and, in all likelihood, the fulcrum on which the future development of global society will turn. It is to Franck's credit, however, that he acknowledged the superficiality of his definition of democracy, which he purposefully limited in recognition of the fact that it "represents the limit of what the still frail global system of states can be expected to accept and promote."
In the end, both Fukuyama and Franck (though certainly for different reasons) justify the application of the democratic label wherever they find the lowest common democratic denominators at work: popular sovereignty and universal suffrage in general elections. There is no dispute that, since the end of the Cold War, there has been an increase of this kind of "democratic" activity.
Challenges to Fukuyama and Franck's claims on behalf of democracy are not limited to the wordplay that is often associated with the deconstruction of given terms. Out of respect for the legitimacy and moral authority that necessarily attends the democratic label, and sensitive to the subtleties of democratic theory, many critics have concluded that, in fact, there has not been a bountiful, post-Cold War democratic harvest. Instead, some see in the developments of the last decade a surrender to a "narrow (nineteenth century) liberal conception of democracy's ends," i.e., a brand of political theory that, perhaps dangerously, elevates market capitalism to the position of priority and labels it democracy." Larry Siedentop raises such a criticism of the evolution of democracy in Western Europe and the European institutions, branding as "economism" the rise of the capitalist economic discourse and agenda in lieu of the traditional language of politics.
There also have been concerns that the states that emerged following the end of the Cold War are reflective of another geopolitical phenomenon, namely, the incendiary rise of ethnic nationalism, rather than the global spread of democracy.
Curiously, Franck is among them. He has remarked that a "source of clear identity-secular faith in our nation state-is being challenged by the terrible trail of blood in the wake of contemporary nationalist and tribal rampages and by the concomitant erosion of civil society.
Franck, therefore, seems to associate two trends with the emergence of newly independent states in the last decade: the welcome rise in the number of democracies and the dangerous rise of tribalism. He admits that these paths have intersected, "but he fails to acknowledge the possibility that there is really only one emerging global trend, in which the "democratic" and "tribalist" labels are two antithetical characterizations of the same phenomenon. Despite a failure to recognize the potential intertwinement of these two competing explanations for the post-Cold War wave of newly independent states, advocates for the "democratic" characterization and those for the "tribalist" characterization of events have one clear point of agreement: both schools recognize the central role of self-determination in the process. This Article argues that self-determination, through its contribution to the creation of numerous post-Cold War states, contributed not to a dramatic increase in the number of democracies, but rather, to the tragically undemocratic climate in which ethnic nationalism, advancing under the names of self-determination and democracy, has blossomed into a new, totally credible force. The first decade of the post-Cold War era largely was characterized by the following five factors: (1) ethno-cultural identity as a controlling, if not the controlling, factor in the character of modern polities; (2) self-determination (at least its prevalent, external, and secessionist variant) as a primary mechanism for resolving ethno-cultural, geopolitical conflicts over the last decade; (3) the world community's grant of democratic legitimacy to the newly independent states, largely based on narrow definitions of democracy and primarily because those states were the product of successful self-determination movements; (4) self-determination's association with democracy chiefly because, in practice, self-determination has long been associated with majority rule plebiscites and referendums and not because the principle itself possesses an inherent democratic virtue; and (5) the use of majority rule plebiscites, conducted in the name of self-determination, in order to cast former ethno-cultural minorities as the ethno-cultural majorities of newly constituted polities, without making any demands on the democratic nature of governance within these new polities.
The constitutive moment characterized by the fifth factor identified above, i.e., being democratic in form but not in content, facilitated, perhaps even mandated, the ethno-nationalist character of the new states. Donald Horowitz captured the implications of this phenomenon: The election was democratically conducted. The results are in conformity with the principle of majority rule. But that is the sticking point. Majority rule in perpetuity is not what we mean by "majority rule." We assume the possibility of shifting majorities, of oppositions becoming governments, of an alterable public opinion. The election, intended to be a vehicle of choice was no such thing and will be no such thing in the future; it registered, not choice, but birth affiliation. This was no election-it was a census.
Many of the new states arose not on a global wave in favor of democratic legitimacy, but on the strength of a narrow over dependence on the majority principle in the interpretation and application of self-determination. An ultimately ethnic-nationalist form of legitimacy won the day at the expense of traditional notions of democratic liberalism and, in the end, the imaginative, democratic hopes of Eastern European dissident movements that had set their peoples free.
With regards to ethnic nationalism's increased strength and its co-option of democratic legitimacy (primarily employing the democratic mechanisms of majority rule, self-determination plebiscites and referendums), it might seem that one must come to one of two conclusions: (1) resort must be made to a stripped-down version of "democracy" that is almost not recognizable as such and that serves in practice as little more than a mask for nationalism; or (2) it must be admitted that democracy has failed and tribal nationalism has succeeded in resolving the most fundamental of human conflicts: social division along ethno-cultural (i.e., racial, ethnic, linguistic, and religious) lines. Both choices create a bleak picture of the vitality of democracy, an image dramatically at odds with the democratic triumph described by Fukuyama and Franck. There is, however, a third possibility: recognition that respect for the territorial integrity of states, combined with a creative conception of democracy as something more than the mere application of the majority rule in plebiscites and elections (i.e., a creative expression of internal self-determination, discussed further below), might have obviated the "need" for the new states and particularly the ethno-culturally homogenous new states.
Part II of this Article first traces the historical nexus between self-determination and democracy. It concludes that the strongest link is limited to the common use of majority rule plebiscites and referendums in the process by which states have achieved self-determination.
Part III develops the Article's thesis by both outlining the limited role that the majority principle has historically played in democratic theory and presenting the circumscribed status that the majority principle enjoys in contemporary democratic theory. In Part IV, this Article concludes that the self-determination movements that led to the creation of many newly-independent states in the last decade of the Twentieth Century were motivated not by democratic aspirations, but by the desire for a hegemonic power framed in ethno-cultural terms. Crediting these movements with the advancement of democracy-based upon the over reliance on majority rule, self-determination plebiscites and referendums in the creation of the newly independent states-could suggest the demise of democracy. Claims of self-determination, however, need not inherently serve this end.
Number of Pages in PDF File: 50
Keywords: International Law
JEL Classification: K10, K33
Date posted: January 12, 2012
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