Towards a right to democratic governance in international law

• Author: Udoka Ndidiamaka Owie
• DOI: 10.10520/EJC-c6be4aa6b
• Published date: 01 January 2016
• Date: 01 January 2016
• Record Number: sapr1_v31_n1_a2
• Pages: 3-31

3

ARTICLE

TOWARDS A RIGHT TO DEMOCRATIC

GOVERNANCE IN INTERNATIONAL LAW

Udoka Ndidiamaka Owie*

ABSTRACT

In its classical positivist tradition international law was not concerned with the internal

structures of states, nor did it recognise the place of actors other than states; rather it

espoused the concept of domestic jurisdiction and non-interference in the domestic affairs

of states as evident in the Charter of the United Nations. Nevertheless, international law

has progressed from its traditional state-centrism to an acknowledgement of the place of

individuals in international law as highlighted by the development of the eld of human rights.

The aversion of traditional international law theorists to contemplate matters of purely

national law or constitutional law, such as how a government is formed, has been challenged

by the rise of democratic governments within state structures in Europe and Africa following

the end of the Cold War. With the articulation of a democratic entitlement to individuals in the

International Bill of Rights, as well as the aforementioned rise in democratic governments

and the work of the United Nations, regional organisations, civil society in democracy and

democratisation, a discourse on democratic governance has been inaugurated, opening

up international law to a consideration of matters of constitutional law, which hitherto were

uncharted waters.

1. INTRODUCTION

Traditionally, international law’s interest in the government of a state was limited with

regard to recognition, that is, to whether the government was in effective control to meet

the legal criteria for statehood or, where there has been a change of government extra-

constitutionally, to enable other states to determine the extent of their relations with

* LLB (Nig), BL (Nig), LLM (LSE), PhD (LSE) is a lecturer in Law at Baze University, Abuja and

currently a Visiting Scholar at Osgoode Hall School of Law, York University.

https://doi.org/10.25159/2219-6412/2650

ISSN 2219-6412 (Print)

© Unisa Press 2017

Southern African Public Law

https://upjournals.co.za/index.php/SAPL/index

Volume 31 | Number 1 | 2016 | pp. 3–31

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Owie Towards a Right to Democratic Governance in International Law

such government.1 No attention was paid to whether a government was one that enjoyed

a popular mandate. Thus, ‘the fact that a particular government came into power by

military coup, through an uprising of parts of the population or through civil war was

irrelevant for the purpose of recognition.’2 Even at the San Francisco Conference,3

heralding the formation of the current international legal order, international law placed

a premium on the territorial sovereignty of states rather than the notion of popular

sovereignty, that is, the idea that the authority of a state is vested by the consent of

the governed through elected representatives. While including respect for the right

of self-determination of peoples in its purposes, the pervasive notion of sovereignty

encapsulated in the Charter of the United Nations (UN), as articulated as part of its

principles, is territorial sovereignty expressed in the inviolability of states and non-

intervention in domestic jurisdiction.4

This has resulted in the prevailing notion that international lawyers largely are

unconcerned about democracy, which they consider purely as a matter of constitutional

law. The aversion of traditional international law theorists to contemplate matters of a

purely national nature is reected in the view expressed by the American Law Institute

in 1987 that international law does not ‘generally address domestic constitutional

issues, such as how a national government is formed’.5 This view seems especially so

when considered against the background of the principle of respect for the domestic

jurisdiction of states.6

International law is dynamic and its involvement in democracy and democratic

governance is not epiphanic – it can be traced to the right of self-determination which

was instrumental in the process of de-colonisation. As a consequence of the development

of human rights towards the end of the rst half of the twentieth century, the articulation

1 See Montevideo Convention on the Rights and Duties of States 1933, 165 LNTS 19 Art 1; Tinoco

Claims Arbitration (Great Britain v Costa Rica), Decision of 18 October 1923, UNRIAA (1) 369.

It has, however, been asserted that the traditional criteria no longer sufce for an entity to achieve

statehood, see James Crawford, The Creation of States in International Law (2edn, Oxford University

Press 2006) 96–173. James Edmund Fawcett contended, in addition to the traditional criteria for the

recognition of a government of a new state, there is a requirement to respect the right of every citizen

to participate in the government of his country, directly or through representatives elected periodically

by equal and secret suffrage, see James Fawcett, ‘Security Council Resolutions on Rhodesia’ (1965–

1966) 41 British Yearbook of International Law 112; Obiora Chinedu Okafor, ‘The Global Process of

Legitimation and the Legitimacy of Global Governance’ (1997) 14 Arizona JICL 117 121–122.

2 Erika de Wet, ‘The Modern Practice of Intervention by Invitation in Africa and Its Implications for the

Prohibition of the Use of Force’ (2015) 26 European Journal of International Law (EJIL) 979 983.

3 UN,‘1945: The San Francisco Conference’ (UN) <www.un.org/en/sections/history-united-nations-

charter/1945-san-francisco-conference/index.html> accessed 15 April 2016.

4 1 UNTS XVI, art 2 (4) and art 2 (7).

5 American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States, s

203, comment e (1987).

6 UN Charter (n 4) art 2 (7).