International Law is not a threat to Democracy

I. Necessity

Why is democracy important in International Law?

There are three reasons to these: First, the sovereignty that is contested
between national sovereignty and international law is increasingly democratic
in nature. Second, the demand for international law has increased with the rise
of economic globalization and transnational nongovernmental organizations
("NGOs"). Globalization has increased the degree and intensity of international
economic exchange by several orders of magnitude. With this comes a demand
for rules to govern these exchanges which includes the settling of trade
disputes between nations. Third, the supply of international organizations and
treaties that make international law has increased. Thus, we firmly believe that
International law is not a threat to democracy.
According to Elihu Root, President of the American Society of International
Law, democracy is the heart of International Law. At an annual conference, he
gave a speech entitled ‘The effect of democracy on international law’, in which
he stated that democracy was an existential condition for international law. He
claimed that absolute national sovereignty could never be the basis on which
an international legal system could be maintained and enforced. On the
contrary, he concluded that democratically elected governments steadily
dominated the international arena. Root saw in this breakthrough of democracy
a remedy against the warlike claims of nations. Familiarity with the normative
framework of the domestic democracy would enable States to honor
international agreements. A parallelism can be perceived between the vision of
Root and the present-day idea that democratic States almost never fight wars
with one another. In an open society the continuous militarization and the
maintenance of an external enemy image would be impossible. Citizens would
be unwilling to continue to sacrifice resources and youth for a war of aggression
and would concentrate at most on defensive warfare.
In addition, Peter Spiro in his article, “Accounting for NGOs” in The Chicago
Journal of International Law sees the international system, if enhanced by
increasingly empowered NGOs, as becoming more democratic. And, in
another article like his 2003 Stanford Law Review piece entitled “Treaties,
International Law and Constitutional Rights,” he argues that human rights can,
at least some times, be best protected when treaty based rights are regarded
as supreme to the Constitution.
 Furthermore, the benefits from the advancement of international law are
significant. First, there are clear cases where the advance of international law
has helped to preserve democratic sovereignty from antidemocratic impulses.
It also should be pointed out that one motive behind these forays into
international law is to combat undemocratic sovereignty. International law can
be used to coerce autocratic regimes into democratizing. The idea is to force
authoritarian regimes to respect international law in the hopes that these states
will respect the rule of law more generally. Finally, the use of international law
by the United States has helped to advance and cement American interests
through the creation of international organizations. The United States has
sacrificed some of its own democratic sovereignty in the recent expansion of
international law. In the process, however, it has reaped far greater benefits by
ensuring multilateral cooperation on trade rules, human rights, money
laundering, and core labor standards. The United States has also created
international institutions such as the OECD and NATO that support US
positions on global governance. Hegemonic states that seek a constitutional
basis for world order are able to lock in their preferences for a longer period of
time than states managing their foreign affairs without international institutions.
Political participation through popular sovereignty is a right to
democracy
According to Boutros-Ghali, Secretary General of the UN, today a
number of democratic procedures, techniques, practices and precedents that
indicate the existence of a coherent entirety of rules exist. This would affirm a
true international right to democracy.
To Boutros Ghali, the practice of election monitoring seems especially
to be decisive. He considers that the pluralistic party criteria that are used by
the observers of international organizations and, in particular, the UN appear
to be a clarification of the vague provisions in human rights treaties concerning
political participation. Since the monitoring missions are approved by States
that are a party to the human rights treaties concerned and treaty provisions
also have to be interpreted in the context of any subsequent practice in their
application, it is not irrational to see the development of electoral standards as
a more explicit formulation of Article 25 ICCPR (International Covenant for Civil
and Political Rights).
Democracy as a condition for State recognition
The recognition of States is traditionally only dependent on the objective
characteristics of statehood, like a territory, a permanent population, effective
authority by a government and the possibility to engage in international
relations. Recognition can be granted to undemocratic States, as the
recognition practice during the decolonization wave proves. To make these
 States turn to democratic reforms, the argument goes that the international
community ought to use diplomatic or economic sanctions rather than deprive
the undemocratic State of its statehood. Indeed, democratic States would,
taking into account the thesis of the democratic peace, tend to peaceful
international relations.
Democracy as a condition for membership of international
organizations
Respect for democratic principles exists directly or indirectly as a
condition for membership in the statutes of a number of regional international
organizations. To be eligible for membership in NATO, Council of Europe, EU
and OAS, a State not only has to be able to contribute to peace, but it also has
to embody the principles of democracy. However, For most universal
international organizations, respect for democracy is not a membership
requirement. As has previously been stated, Article 2(7) of the UN Charter
leaves the choice of the domestic constitutional structure up to the Member
States. The UN does not require its Member States to be democratic; the only
condition for UN membership is to be “peace-loving” (Article 4(1) of the UN
Charter).

SOURCES:
1. https://academic.oup.com/ejil/article/22/2/525/540655/A-Democratic-Rule-of-
International-Law
2. https://www.law.kuleuven.be/iir/nl/onderzoek/wp/WPLirg5.pdf
3. http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1413&context=cj
il
4. https://academic.oup.com/ejil/article/22/2/525/540655/A-Democratic-Rule-of-
International-Law