Mechanisms for the Protection of Democracy in the Inter-American System and the Competing Lockean and Aristotelian Constitutions
Curso De Derecho Internacional, Vol. 33, pp. 217-40, 2006
23 Pages Posted: 6 Oct 2007
While some have argued that there is an emerging universal human right under international law to live under democratic government, the so-called "democratic entitlement," the peoples of the Western Hemisphere arguably do not need to reach that question. Rather, they can maintain that today, under the narrower conventional and customary regime that has grown out of the Charter of the Organization of American States (OAS), all Americans can assert that they have a positive law claim to their natural law right to self-government. This essay, which is based on lectures given at the 2006 Annual Course of the Inter-American Juridical Committee of the OAS in Rio de Janeiro, will articulate the positive law grounds for this claim. Briefly, it will show how this claim needs to be unpacked along two parameters: first, whether is represents a hard law or soft law theory of international law; and, second, whether it reflects an international compact or contract theory or a quasi-constitutional theory of international law. Second, this essay will draw attention to proposals for reform of the Inter-American system for the protection of democracy and locate those proposals in light of the competing "hard" law and "soft" law conceptions of the nature of Inter-American democratic entitlement. Finally, this paper will identify precedents from comparative constitutional law to illustrate how, over time, as socio-political consensus is achieved, the "soft" law conception of the democratic entitlement can become a "hard" law regime at some future point in the evolution of the Inter-American system. This essay will argue, however, that a fully "hard" law version of the democratic entitlement is premature until sufficient consensus is achieved in relating the formal understanding of democracy contained in the Charter with a substantive conception of democracy that is tied to the role democracy plays in furthering the welfare of the people. Indeed, it argues that at stake are competing conceptions of democracy that flow, in the language of this article, from the differences between Lockean, primarily negative rights, and Aristotelian, primarily positive rights, theories of domestic constitutional law. In the interim, and until consensus can be achieved on these deeper questions of constitutional theory, the international law mechanisms for the protection of democracy in the Inter-American system should be limited to the hard core of the elements of formal democracy identified in the Inter-American Democratic Charter.
Keywords: Organization of American States
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