Bertrand G. Ramcharan. Contemporary Human Rights Ideas. Londom, New-York, 1996. 192p

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It has been suggested that democratic legitimacy should be one of the

leading policy planks of the HRC. The following principles should

guide the council in advancing constitutional, democratic legitimacy.

 the existence of a constitution that has popular support and

represents the populace’s hopes and aspirations;

 the right of people to determine freely their own political, eco-

nomic, and social systems;

 the importance of democratic legitimacy for peace, human rights,

and development;

 democratic legitimacy and governance is a basic human right;

 constitutional democratic legitimacy can play a role in preventing

conﬂicts;

 constitutional democratic governance can play a role in spurring

development;

 constitutional democratic governance can play a role in preventing

terrorism;

 constitutional democratic governance can play a role in advancing

justice and equity, both locally and internationally.

According to philosophers, including Mo rtiner Adler,

justice should

be the supreme inspirational principle of all human societies. The

pursuit of justice can best be conducted in an environment of demo-

cratic legitimacy. It was in recognition of this that article 21 of the

UDHR proclaimed that the will of the people shall be the basis of the

authority of government. This should be expressed in periodic and

genuine elections by universal and equal suffrage and shall be held by

secret vote or by equivalent free voting procedures.

According to article 25 of the International Covenant on Civil and

Political Rights, everyone should have the right and the opportunity,

without any of the distinctions mentioned in article 2 or any unrea-

sonable restrictions, (a) to take part in public affairs directly or through

freely chosen representatives; (b) to vote and be elected at genuine

periodic elections that are by universal and equal suffrage and shall be

held by secret ballot, guaranteeing the free expression of the will of

the electors; (c) to have equal access to public service in his or her

country.

Likewise, the European Convention on Human Rights and Funda-

mental Freedoms calls for an effective political democracy. In the

Handyside case, the ECHR referred to the notions of pluralism, tol-

erance, and broadmindedness, which should be characteristics of a

democratic societ y. In the Klass case, the court considered that one of

76 Democracy

the fundamental principles of a democracy is the rule of law. Justice is

best served by constitutional democracy under the rule of law.

Not only is democratic legitimacy an important requirement for

justice, but some claim that democracy is a basic human right. The

World Conf erence on Human Rights declared that democracy, devel-

opment, and respect for human rights are interdependent and mutually

reinforcing. It emphasized that the ‘‘international community should

support the strengthening and promoting of democracy, development

and respect for human rights and fundamental freedoms of the entire

world.’’

Louis Henkin has argued that:

The human rights ideology and the law of human rights repre-

sented in the International Covenant [on Civil and Political Rights]

include, I believe, a right to de mocracy in the sense of constitu-

tional democracy and its elements—authentic popular sovereignty,

respect for individual rights, the rule of law, due process of law

and commitment to the principle of justice. I think that these

principles of justice were what those who drafted the Covenant

contemplated and what states that became parties to the Cove-

nant committed themselves to abide by.

In the human rights treaty and case law, there are important expres-

sions of the links between democracy and human rights. In some

instances, limitations are accepted if they are perceived to be neces-

sary in a democratic society. The Human Rights Com mittee has held

that the principles of legality and the rule of law require that fun-

damental requirements of a fair trial must be respected during a

state of emergency.

The European Commission of Human Rights

has held that measures affecting fundamental rights must be subject

to some form of adversarial proceedings before an independent and

competent tribunal.

Democra tic legitimacy is key to prev enting and suppressing terrorism.

Moreover, human rights monitoring bodies have made an important

distinction between democracies and dictatorships when deciding w he-

ther there is an emergency threatening the life of the nation. Regional

and international supervisory human rights bodies have granted the

governments of democracies, as opposed to those of unrepresentative

governments, a wider margin of appreciation in determining whether a

state of emergency exists, whether from an external or internal threat.

However, national courts and regional or international supervisory

bodies hold themselves competent to supervise the application of

Democracy 77

emergency measures. In scrutinizing the application of such measures,

the principles of legal ity, proportionality, non-derogability of certain

fundamental rights, and the principle of non-discrimination are kept

in mind.

In Ireland v. The United Kingdom (1978), the ECHR declared:

It falls in the ﬁrst place to each Contracting State, with its

responsibility for ‘‘the life of the nation, to determine whether that

life is threatened by a public emergency. ... By reason of their

direct and continuous contact with the pressing needs of the

moment, the national authorities are in principle in a better posi-

tion than the international judge, to decide ... on the presence of

such an emergency

... In this matter, article 15(1) leaves those authori ties a wide

margin of appreciation.

The domest ic margin of appreciation is subject to supervision and

control by the European Court of Human Rights, and case law indi-

cates that a democratic government’s opinion on whether a public

emergency exists will not be questioned by the convention organs.

However, in the Greek case, the European Commission of Human

Rights disagreed with Greece’s military government regarding the

existence of a state of emergency.

At the UN, attention to the issue of new and restored democracies

began to be emphasized in 1988, with 13 countries participating in the

ﬁrst international conference on this topic in Manila. By the time the

most recent conference was held in Doha in 2006, over 100 countries

were present, together with a large number of participants in the par-

liamentarians and civil society forums.

In a recent report to the GA, the secretary-general announced his

intention to ask relevant UN entities to initiate a study on the com-

parative advantages, complementarity, and desirable distribution of

labor of intergovernmental democracy movements, organizations, and

institutes, and how the UN system has worked and could work further

with them in a mutually supportive way.

There is signiﬁcant recent practice of the recognition and applica-

tion of the principle of democratic legitimacy. According to a recent

study, from 1993 through 2000, the UNSC referred to democracy in

53 resolutions. The council, according to the same study, praised

democratic governance for reasons ranging from its role in fostering

national reconciliation, to ensuring security in states recently emerging

from civil war, to assisting in reconstructing governing infrastruc tures.

78 Democracy

The council has refused to recognize those regimes as legitimate

that overthrew elected leaders. It has also authorized the use of armed

force to return elected leaders to ofﬁce. In addition, the UNSC and

the African Union have stated that they will not accep t the violent

overthrow of a democratically elected government.

The content of democracy

On 16 September 1997, the Council of the Inter-Parliamentary Union

adopted the Universal Declaration on Democracy, which stated that

strengthening the democratization process and representative inst itu-

tions will greatly contribute to achieving peace and development in the

world. The Universal Declaration contained principles of democracy,

the elements of democratic government, and the international dimen-

sion of democracy. Its salient provisions are set out here.

On democracy, the declaration stated that it is a universally recog-

nized ideal as well as a goal based on common values held by peoples

throughout the world, irrespective of cultural, political, social, and

economic differences. It is a basic right of citizenship to be exercised

under conditions of freedom, equality, transparency, and responsi-

bility, with due respect for the plurality of views and in the interest of

the polity.

Democracy, the declaration continued, is both an ideal to be pur-

sued and a mode of government to be applied according to modalities

that reﬂect the diversity of experiences and cultural particularities

without derogating from internationally recognized principles, norms,

and standards. It is thus a constantly improving and always perfectible

state or condition whose progress depends on a variety of political,

social, economic, and cultural factors.

As an ideal, democracy aims to preserve and promote the dignity

and fundamental rights of the individual, achieve social justice, foster

a community’s economic and social development, strengthen the

cohesion of the society and enhance national tranquility, and create a

climate that is favorable for international peace. As a form of govern-

ment, democracy is the best means of achieving these objectives; it is

also the only political system that has the capacity for self-correction.

Achieving democracy presupposes a genuine partnership between

men and women in the conduct of the affairs of society in which they

work in equali ty and complementarity, drawing mutual enrichment

from their differences.

A state of democracy ensures that the processes by which power is

acceded to, wielded, and alternates allow for free political competition

Democracy 79

and are the product of open, free, and non-discriminatory participa-

tion by the people, exercised in accordance with the rule of law.

Democracy is inseparable from international human rights. Those

rights must, therefore, be applied effectively and their proper exercise

must be matched with individual and collectiv e responsibilities. Democ-

racy was founded on the primacy of the law and the exercise of human

rights. In a democratic state, no one is above the law, and all are equal

before the law. Peace and economic, social, and cultural development

were both conditions for and fruits of democracy. Thus, there was

interdependence between peace, development, respect for and obser-

vance of the rule of law and human rights.

On the elements and ex er cise of democratic gov ernment, the declara-

tion added that democracy was based on the existence of well structured

and well functioning institutions, as well as on a body of standards

and rules and on the will of society as a whole, fully conversant with

its rights and responsibilities. Democratic institutions should mediate

tensions and maintain equilibrium between the competing claims of

diversity and uniformity, individuality, and collectivity to enhance

social cohesion and solidarity.

Furthermore , democracy was founded on everyone’s right to take part

in public affairs; it therefore requires representative institutions at all

levels and, in particular, a parliament in which all components of society

are represented and which has the requisite powers and means to expr ess

the will of the people by legislating and overseeing government action.

The key element in the exercise of democracy is the holding of free

and fair elections at regular intervals. These elections must be held on

the basis of universal, equal, and secret suffrage so all voters can choose

their representatives in conditions of equality, openness, and transpar-

ency. To that end, civil and political rights are essential, and, more

particularly among them, the rights to vote and to be elected, the

rights to freedom of expression and assembly, access to information,

and the right to organize political parties and carry out political activ-

ities. Party organization, activities, ﬁnances, funding, and ethics must

be properly regulated in an impartial manner to ensure the integrity of

the democratic processes.

It is an essential function of the state to ensure the enjoyment of

civil, cultural, economic, political, and social rights for all citizens.

Democracy thus goes hand in hand with an effective, honest, and

transparent government, freely chosen a nd accountable for its man-

agement of public affairs.

Public accountability, essential to democracy, applied to all who

hold public authority, whether elected or non-elected, and to all bodies

80 Democracy

of public authority. Accountability entails a public right of access to

information about government activities, the right to petition govern-

ment and to seek redress through impartial administrative an d judicial

mechanisms.

Public life must be characterized by a sense of ethics and transpar-

ency, and appropriate norms and procedures must be established to

uphold both. Individual participation in democratic processes and

public life at all levels must be regulated fairly and impartially and

must avoid any discrimination, as well as the risk of intimidation by

state and non-state actors.

Judicial institutions and independent, impartial, and effective over-

sight mechanisms guarantee the rule of law. For these institutions and

mechanisms to ensure respect for the rules, improve the fairness of the

processes, and redress injustices, all people must have equal access to

administrative and judicial remedies.

While the existence of an active civil society is essential in democ-

racies, the capacity and willingness of individuals to participate in

democratic processes and make governance choices cannot be taken

for granted. It is, therefore, necessary to develop conditions conducive

to the genuine exercise of participatory rights, while also eliminating

obstacles that prevent, hinder, or inhibit this exercise. It is, therefore,

indispensa b le to ensure the permanent enhancement of equality, trans-

parency, and education and to remove obstacles such as ignorance,

intolerance, apa thy, the lack of gen uine choices , and alternativ es and the

absence of measures designed to redress imbalances or discrimination.

A sustained state of democracy requires a democratic climate and

culture constantly nurtured and reinforced by education and other

vehicles of culture and information. Hence, a democratic society must

be committed to education in the broadest sense of the term, and,

more particularly, civic education and the shaping of a responsible

citizenry.

Democratic processes are fostered by a favorable economic envir-

onment. Therefore, in its overall effort for development, society must

be committed to satisfying the basic economic needs of the most dis-

advantaged, ensuri ng their full integration in the democratic process.

The state of democracy presupposes freedom of opinion and expres-

sion. This right implies freedom to hold opinions without interference

and to seek, receive, and impart information and ideas through any

media and regardless of frontiers.

The institutions and processes of democracy must accommodate all

people’s participation in homogeneous and heterogeneous societies to

safeguard diversity, pluralism, and the right to be different in a climate

Democracy 81

of tolerance. Democratic institutions and processes must also foster

decentralized local and regional government and administration, which

is a right and a necessity, and which makes it possible to broaden the

base of public participation.

The Universal Declaration on Democ-

racy is a helpful statement of the core content of this concept.

Promoting the right to democracy

In 1999, the Clinton administration secured a major victory at the

CHR when it negotiated the passage of a resolution afﬁrming democ-

racy as a fundamental human right. Since then, the Ofﬁce of High

Commissioner for Human Rights has organized international semi-

nars that have adopted signiﬁcant recommendations on strengthening

democracy as a human right.

In its Resolution 1999/57, adopted by 51 votes (with no votes

against and two abstentions), the CHR afﬁrmed that democracy fos-

tered the full realization of human rights and vice versa. The com-

mission also afﬁrmed that the rights of democratic governance include

the following:

 rights to freedom of opinion and expression, thought, conscience

and religion, and peaceful association and assembly;

 the right to seek, receive, and impart information and ideas through

any media;

 the rule of law, including legal protection of citizens’ rights, inter-

ests and personal security, fairness in the administration of justice

and independence of the judiciary;

 the right of universal and equal suffrage, as well as free voting

procedures and periodic and free elections;

 the right of political participation, including equal opportunity for

all citizens to become candidates;

 transparent and accountable government institutions;

 the right of citizens to choose their governmental system through

constitutional or other democratic means;

 the right of equal access to public service in one’s own country.

A UN seminar on the subject, held in 2005, noted that the triangle

formed by the concepts of rule of law, human rights, and democracy is

not an equilateral one; circumstances may often require that greater

emphasis be placed on one element, without detaching it from the

others. Thus, a state whose institutions have broken down may need to

re-establish democratic institutions and the rule of law to ensure

82 Democracy

respect for human rights and fundamental freedoms. States in which

authoritarian rule or a populist majority have denied people’s rights

may give priority to restoring human rights and fundamental free-

doms and their system of protection, including the administration of

justice.

The seminar underlined that free, fair, and periodic multi-party

elections are a key component of democracy, the rule of law, and the

protection of human rights. They also have autonomous value as a

means of self-realization a nd recognition of human dignity. Periodic

elections are essential to ensure accountability of representatives to

exercise the legislative or executive powers vested in them. The con-

duct of elections should be entrusted to an independent mechanism

that is free from interference that could undermine the fairness of

elections.

At the seminar, participants stated that that General Comment no.

25 of the Human Rights Committee concerning article 25 of the

International Covenant on Civil and Political Rights should guide the

implementation of the right to participate in public affairs, voting

rights, and the right of equal access to public service. According to

this general comment , the conduct of public affairs is a broad concept

that relates to the exercise of political power, in particular the exercise

of legislative, executive, and administrative powers. It covers all aspects

of public administration and the formulation and implementation of

policy at the international, national, regional, and local levels. The

allocation of powers and the means by which individual citizens exer-

cise the right to participate in the conduct of public affairs should be

established by the constitution and other laws.

In 2000, the United Nations Development Program (UNDP)

established democratic governance as one of its main areas of focus

within its development cooperation program. In 2002, UNDP pub-

lished the Human Development Report 2002: Deepening Democracy in

a Fragmented World, which provided an in-depth study of the linkages

between human development and democracy and incorporated a

rights-based approach.

The UN Democracy Fund helps ﬁnance

projects that build and strengthen democratic institutions, promote

human rights, and ensure the participation of all groups in democratic

processes.

The International Conference on New and Restored Democracies is

an inter-go v ernmental mo v ement that seeks to adv ance democratiza tion.

To da te, it has organized six interna tional conferences, the most recent of

which took place in Qatar in 2006. A parallel conference of democ-

racies has met to promote democratic governance. The International

Democracy 83

Institute for Democracy and Electoral Assistance (IDEA), based in

Stockholm, promotes sustainable democracy worldwide. IDEA seeks

to blend research and ﬁeld experience and develop practical tools to

improve democratic processes. The Inter-parliamentary Union (IPU),

founded in 1889, is an international organization of parliaments that

promotes inter-parliamentary dialogue and democracy.

Conclusion

The democracy idea is of great importance to the future of human

progress and prosperity with justice. In large parts of the world,

undemocratic governments ride roughshod over people who often

have little say in the governance of their countries. Because of this, the

growing emphasis on democratic governance and democracy as a

human right is extremely important. Democratic governance can help

countries draw on their resources efﬁciently and fairly. Democratic

governance can help ensure that all parts of the population are given a

stake in the future of their countries. Democracy can contribute to

lessening conﬂicts. Democracy can enrich regional and international

cooperation. The idea of democracy deserves heightened emphasis in

the future of the human rights movement.

84 Democracy

7 Development

The World Conference on Human Rights reafﬁrms the right to develop-

ment, as established in the Declaration on the Right to Development as a

universal and inalienable right and an integral part of fundamental

human rights.

(Vienna Declaration, paragraph 10)

In the contemporary world, hundreds of thousands of women are

trafﬁcked into slavery and prostitution, and children are sexually

exploited. Many of these women and children are lured by the promise

of better opportunities or earnings. Poverty has a great deal to do with

the plight of the victims. How can this take place at the beginning of

the twenty-ﬁrst century? Could the declaration and implementation of

a right to development help remove such conditions?

Many parts of the developing world that were subjected to coloni-

alism entered into independence impov erished and rava ged. A prominent

Third World historian, Walter Rodney, made a powerful presentation

in his book, How the West Underdeveloped Africa.

On the island of

Gore, off the coast of Senegal, a holding depot held captured slaves

before they were shipped to the New World. Keba Mbaye, a Senegalese

jurist, that country’s chief justice, and also its representative on the

UN Commission on Human Rights, was so moved by the plight of his

ancestors and the impact of slavery on his continent that, in an

address at the International Institute of Human Rights, in Strasbo urg

in 1972, he articulated, for the ﬁrst time, the notion of the right to

development.

The right to development is the subject of one of the

major contemporary human rights debates.

Some of the debates concern questions such as: Is development a

human right, and wha t does it mean? Whose right is it? Is it applica b le in

the internal sphere wi thin countries or only in the external relations

among states, implying a duty of developed countries to assist developing