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Published online by Cambridge University Press: 28 February 2017
1 Separate articles by Thomas Franck and Gregory Fox are now widely cited as the seminal works of this literature. See Franck, Thomas M., The Emerging Right to Democratic Governance, 86 Am. J. Int’l L. 46 (1992)CrossRefGoogle Scholar; Fox, Gregory H., The Right to Political Participation in International Law, 17 Yale J. Int’l L. 539 (1992)Google Scholar.
2 Fox, supra note 1, at 595 (bold emphasis added).
3 Franck, supra note 1, at 50.
4 Roth, Brad R., Governmental Illegitimacy in International Law: An Emerging Norm in Theoretical Perspective (1996) (unpublished Ph.D. dissertation, University of California (Berkeley)Google Scholar).
5 See, e.g., Fernando Teson, Humanitarian Intervention: An Inquiry into Law and Morality 53 (1988) (arguing that nonintervention norms are attributable to an organicist “Hegelian Myth” about the moral standing of the state); Reisman, W. Michael, Sovereignty and Human Rights in Contemporary International Law, 84 Am. J. Int’l L. 866, 871 (1990)CrossRefGoogle Scholar (excoriating the “mystical survival of a monarchical right that supposedly devolves jure gentium on whichever warlord seizes and holds the presidential palace”).
6 G.A. Res. 2625 (XXV), U.N. GAOR, 25th Sess., Supp. No. 28, at 121, U.N. Doc. A/8028 (1970) (the unanimously adopted “Friendly Relations Declaration”).
7 Three types of crises reveal the doctrine’s inadequacy, and have generated qualifying conditions: (1) civil war between two or more factions, which renders the test of effective control indeterminate and prompts doctrinal reliance on the dubious rule against “premature recognition” (the “first-in-time” rule); (2) foreign intervention on behalf of the effective government which, even where lawful, vitiates the significance of effective control as a guide to respect for popular sovereignty; and (3) unambiguous manifestations of popular repudiation of the ruling apparatus, which render untenable the doctrine’s presumption of legal standing for that apparatus as the representative of the popular will.
In the wake of the Cold War’s end, with superpower backing in civil conflicts no longer easy to come by, many embattled regimes came to the conclusion that order could be maintained in the long term only through political settlements—settlements that entailed electoral processes for which the international community would serve as arbiter of fairness. When, in two cases, the internationally certified electoral results were repudiated by armed factions, the international community weighed in on the side of those bearing the electoral mandate, taking decisive action against the military coup in Haiti and eschewing the ordinary rule of neutrality in its concrete (if relatively mild) measures against the renewed insurgency in Angola. These international responses can be seen narrowly as resulting from the investment of UN prestige in these domestic political settlements, but they can also plausibly be traced to principled empirical judgments about the will of the people, “substantially declared” in quasi-plebiscitary elections, the results of which all contestants had agreed to honor.
8 G.A. Res. 150, U.N. GAOR, 45th Sess., U.N. Doc. A/RES/45/150 (1990).
9 See, e.g., G.A. Res. 151, U.N. GAOR, 45th Sess. U.N. Doc. A/RES/45/151 (1990); G.A. Res. 180, U.N. GAOR, 49th Sess., U.N. Doc. A/RES/49/180 (1994).
10 Anyone who believes that this potential is purely hypothetical should examine the work of the Human Rights Bureau of the U.S. State Department with respect to the Central American crisis of the 1980s. The literature on this episode is vast, but one concise critique of the political manipulation of human rights compliance assessments can be found in Americas Watch, Human Rights in Nicaragua: Reagan, Rhetoric and Reality (1985).
11 Cf. Baker v. Carr, 369 U.S. 186, 217 (1962) (a “political question” is one from which courts should abstain on account of, inter alia, “a lack of judicially discoverable and manageable standards for resolving it... or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion.”).
12 Fox, Gregory H. & Nolte, Georg, Intolerant Democracies, 36 Harv. Int’l L. J. 1, 8 (1995)Google Scholar.
13 Id. at 16.
14 Id. at 17 (quoting John Rawls, A Theory of Justice 214 (1971)).
15 This critique is an adaptation of the argument made in Roth, Brad R., Democratic Intolerance: Observations on Fax and Nolte, 37 Harv. Int’l L. J. 235 (1996)Google Scholar.
16 These studies have given rise to a sharp debate among political scientists, the details of which will not be reproduced here. For a collection of scholarly articles on both sides of the “democratic peace” issue, see Debating the Democratic Peace (Michael E. Brown, Sean M. Lynn-Jones & Steven E. Miller eds., 1996).
17 Makinda, Samuel M., Sovereignty and International Security: Challenges for the United Nations, 2 Global Governance 149, 151 (1996)Google Scholar (quoting Blechman, Barry M., The Intervention Dilemna, 18 Wash. Q. 63, 64 (1995)CrossRefGoogle Scholar).
18 Compare Francis Fukuyama’s thesis that we have already arrived at “the end of history as such; that is, the end point of mankind’s ideological evolution and the universalization of the Western liberal democracy as the final form of human government.” Francis Fukuyama, The End of History?, Nat’l Interest, Summer 1989, at 3-4.
